State v Koroivuki - Summing Up [2010] FJHC 61; HAC013.2008 (19 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 013 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

LAISIASA KOROIVUKI
ACCUSED

Counsel: Ms. A. Tuiketei - State
In Person - Accused Person

Date of Hearing: 08/02/2010, 10/02/2010, 11/02/2010, 12/02/2010, 15/02/2010, 17/02/2010.

Date of Ruling: 19/02/2010.

SUMMING UP

Madam Assessors and gentleman Assessor

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

The Counsel for the prosecution made submissions to you about the facts of this case. That is her duty as State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

The accused also made submissions to you. There again it is his right and it is for you to decide which version of the facts to accept or reject.

You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused’s guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.

Your decision must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom.

Your duty is to find the facts based on the evidence apply the Law to those facts.

The accused is charged with the offence of having in possession without lawful authority 1808.5 grams of cannabis an illicit drug.

The offence charged has several elements which the prosecution must satisfy you of beyond reasonable doubt.

They are that the accused:

(1) possessed.

(2) without lawful authority.

(3) an illicit drug.

In this case it is not in dispute weighing 1808.5 grams of cannabis were found in Apisai Suluas’ house.

It is not in dispute that there was no lawful authority for the possession of drugs.

The issue for you to decide is in whose possession was it? Was it the accused’s drugs? The word ‘possession’ simply means having something in one’s custody and control with knowledge of such custody and control. So the question for you to decide is whether these drugs were in the accused’s custody and control or not.

The Evidence

Prosecution lead evidence that on information received by the Police they conducted a surveillance on the house of Apisai Sulua at Vesivesi Road, Kinoya. On the said surveillance DC 4091 Mosese Ligani and DC 4092 Christopher gave evidence. In this surveillance they have confirmed the truth of the information they received and they have identified the accused as the person who transacted with the people who came to the house of Apisai Sulua.

On their report on surveillance Police conducted the raid. Prosecution lead evidence of witnesses who took part in the raid. They are DC Christopher, who took part in the surveillance as well, PC Uraia Bolalailai, PC4463 Keverieli Buli and Inspector Kasim. These witnesses gave evidence in court as to how and where they found the drugs in this house.

Prosecution further lead evidence of Inspector Jolame Nabakele who recorded the caution interview statement of the accused and said that accused gave the cautioned interview statement voluntarily which is marked as an Exhibit. He has not taken part in the raid. PC Kamal gave evidence producing the reports from the Koronivia Research Station.

All the drugs said to have been found in the house of Apisai Sulua which was raided and the report from the Government Analyst been exhibited. Police witnesses also identified those parcels containing drugs as what they found in the house they raided.

Government analyst report confirms that these drugs are cannabis and the total weight is 1808.5 grams or 1.8kg.

At the close of prosecution case, you heard me giving several options to the accused. He would have given sworn evidence, an unsworn statement or remained silent and he had these options because he does not have to prove anything. The burden of proving his guilt remains on the prosecution at all times. He chose to give sworn evidence and to subject himself to cross examination. You must give his evidence careful consideration.

His evidence was that he came to Suva only on 13/01/2010 to lodge a complaint on the problems he had with the workmates. As his boss was not there he had to wait in Suva and he stayed at his brother in law Apisai Suluas’ house. He was to meet his boss in office on 15th. But on 15th morning the house was raided. Further he said he was at the right place at the wrong time.

Although he did not say in his evidence in chief, in cross examination he said that he informed Justice Goundar in court that he is not guilty and that he had to admit to Police as he has seen on TV, police beating criminals, some ended up in broken leg or in hospital. Further he said he lied to Police due to fear. He never said in evidence that he was slapped or beaten up.

On cross examination he said that he was slapped by a Police officer who had blond hair and again he said no one assaulted him and no one threatened him.

Epeli Tadi a security officer of the company where the accused was supposed to be working in Lautoka gave evidence on behalf of the Defence. He said accused started to work there on 7/7/2007, and accused was working there till late January 2008. A man who wanted employment in their company has approached their boss and the accused had agreed to relieve. After accused agreed he had asked the accused to come to Suva office and for that purpose accused had come to Suva in 2nd week of January. Further he said accused worked everyday and accused never complained on working only 1 or 2 days a week.

Summary

In summary it is not disputed that the house of Apisai Sulua was raided by a team of Police officers on 15/1/2008. Defence did not dispute the fact that the drugs were found and seized as a result of the raid in Apisai Sulua’s house and further did not dispute that accused being present at the time of the raid.

Accused however denied the fact that he was in Apisai Suluas’ house during the 2 month period the surveillance by police was done as he had been working in Lautoka. Defence witness Epeli Tadi also gave evidence. Police witnesses say that they identified him during the surveillance period. Which version of evidence you choose to accept is a matter for you.

There is no legal burden on the accused to prove that he was in Lautoka during the period of surveillance by the Police. But if the evidence of the defence creates a doubt on the prosecution story on surveillance in your mind the benefit of the doubt should be given to the accused on that fact.

Defence disputes the confessionary parts of the caution interview statement made to the police saying that the accused admitted due to fear of being beaten up by Police.

The prosecution however says that the caution interview statement was not obtained under threat or promise and that accused told the truth voluntarily.

In the statement to Police accused has said that the accused asked his brother in law Apisai Sulua whether he could help him to sell marijuana and since last year he had been residing there. Further he has said that he sold marijuana alone and he earned about $500+ a day from sales. He admitted that the marijuana seized by Police belongs to him, and was in his possession and as his brother in law Apisai Sulua went to Lautoka he was in charge of the house.

On the accused’s statement which version you are going to accept whether it is the prosecution version or accused’s version is a matter entirely for you.

What weight you put on the accused’s statement to the Police is entirely a matter for you. However if you accept that the contents of the interview are reliable you may think that they contain a complete confession to all the elements of the offence. Further if you do not accept the contents of the interview statement are reliable you may reject same.

You have heard evidence lead by both parties, prosecution and the defence which version of evidence you choose to accept is a matter for you. You must decide which witnesses are reliable and which are not.

If I do not mention a particular witness or a particular piece of evidence, that does not mean it is unimportant; you should consider and evaluate all the evidence in coming to your decision.

If you are satisfied beyond reasonable doubt that the drugs found in this house were in the possession of accused you must find the accused guilty. If you have any reasonable doubt about whose possession the drugs were you must find the accused not guilty.

I will now ask you to retire.

Priyantha Fernando
Puisne Judge

19/02/2010