State v Mohammed - Judgment [2011] FJHC 469; HAC049.2008 (16 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 049 OF 2008

STATE

vs

1. SHEIK MOHAMMED
2. MICHAEL ASHLEIGH CHANDRA
   

Mr. F. Lacanivalu for the State
Mr. I. Khan for both Accused

Date of Hearing : 15 August 2011
Date of Judgment: 16 August 2011

JUDGMENT

[1] Sheik Mohammed and Michael Ashleigh Chandra, you are both charged with the following offence:

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to section 5(a) of Illicit Drugs Control Act No. 9 of 2004.

Particulars of Offence

SHEIK MOHAMMED s/o SHEIK HUSSEIN and MICHAEL ASHLEIGH CHANDRA, on the 14th day of November, 2007, at Lawaqa, Sigatoka in the Western Division, without lawful authority possessed 3764.6 grams of cannabis, an Illicit Drug.

[2] After trial, the three assessors have returned with unanimous verdicts of not guilty against the two of you. Having directed myself on my own Summing Up, I must state that I do not agree with the assessors.

[3] The evidence adduced at trial was that acting on information the Police stopped a vehicle in Sigatoka town, the vehicle being driven by the 1st accused and with the second accused as passenger. A search of the vehicle revealed 15 newspaper wrapped parcels of dried leaves concealed in the rear bumper of the vehicle. These leaves when analysed were shown by the Government Chemist to be 3764.6 grammes of marijuana, an illicit drug. Each of the accused made an interview under caution in which each denied knowledge of the drugs.

[4] Neither accused gave evidence in his defence, a case to answer having been found. I found on an application of no case to answer that the presumption of possession obviously led to evidence of possession which needed to be rebutted.

[5] I find beyond reasonable doubt, and it was not challenged at trial, that the first and second accused were in control of the vehicle EX 631 at all relevant times. Being in control, the presumption comes into play and therefore both accused are deemed to have been in possession of the drugs. Neither gave evidence to rebut that presumption, and the Court finds that the bland denials in the caution interviews are not enough to rebut the presumption on the balance of probabilities.

[6] In his caution interview the first accused told of having driven the vehicle from Labasa to Suva and then to Sigatoka, just to visit a friend in Sigatoka. On the day of arrest, he had gone shopping in town and then with nothing to do in the afternoon went "on cruise" on the Sigatoka Valley Road before returning to town. It was then that he was stopped.

[7] I do not accept the evidence of the first accused that, wanting to bring the vehicle from Labasa to visit a friend in Sigatoka, he would then embark on a cruise up the Sigatoka valley.

[8] The second accused admits in his statement that he had been in the vehicle all along with the first accused from Suva to Sigatoka for the three days and that he was in the car when they went up the Sigatoka Valley Road for "sightseeing".

[9] Having found beyond reasonable doubt that the drugs as specified in the charge were found in a part of the vehicle that the two were in joint control of, the presumption of possession is relevant and I therefore find both accused guilty of the offence of possession. They are convicted accordingly.

Paul K. Madigan
JUDGE
At Lautoka
16 August 2011