State v Mohammed [2011] FJHC 470; 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

SUMMING UP

[1] Ladies and Gentleman assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in Counsels' speeches you have heard this morning but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw an inference that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are at liberty to accept the whole of a witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. In this regard if you have strong feelings about the abuse of illicit drugs or the culture surrounding drugs, you must put that from your mind. You must only be concerned with the evidence that has been put before you and nothing else.

You must assess the evidence against each accused separately. Just because you might think that one of the accused is guilty does not mean that the other is necessarily so.

[9] I must also direct you that anything one accused says in his cautioned interview about the other accused is not evidence against that accused. Interviews can only be evidence against the person who is being interviewed and against nobody else.

Onus and Burden of Proof

[10] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

[11] However in a drugs case such as this, the tables are "turned" in that the law says that the two accused must prove to you that they were not in possession of the drugs. Every other element of the offence must be proved to you by the State.

[12] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty.

[13] The two accused in this case are charged with being in possession of Indian hemp. You can take it from me that Indian hemp is another term for marijuana, an illicit drug. For you to find each of the accused guilty of this offence you have to find, proved to you beyond reasonable doubt that –

(i) the accused,

(ii) had control and custody of the vehicle EX 631 in which the drugs were found.

[14] Although the vehicle was in the first accused's brother-in-law's name, the first accused has told you in his cautioned interview that he had been driving it from Labasa to Suva to Sigatoka where he had been driving it for a few days. You might think then that he was in control of the vehicle and the State says that the second accused being with him all the time from Suva was in joint control.

[15] The Illicit Drugs law in Fiji says that where any drugs is proved to be on or in any vehicle under the control of the accused, it shall be presumed, until the contrary is proved, that the accused was in possession of the drugs.

[16] What this means in our case is that the State has to prove to you, so that you are sure that the drugs in question were found on or in the vehicle and then it is for each accused, and look at each separately, to prove to you that he was not in possession. This proof is not to such a high standard as that on the State; each accused must show you that it is more probable than not that he was not in possession. This test is called "on the balance of probabilities".

[17] This then is how you should approach your task:

(i) has the State proved so that you are sure, that the drugs were found in the car.

(ii) has the State proved that it was 3,374 grammes of cannabis sativa (i.e. marijuana).

(iii) has each accused shown you that it was more probable than not that he was not in possessions of those drugs, given the legislative presumption that he was in possession.

[18] You have seen a cautioned interview made by each of the accused. If you think it is true and really said by each accused you can use them as evidence in the normal way. However as I have said earlier, each accused's interview can only be used against him alone and not against the other accused.

[19] You heard the evidence only yesterday and I won't go over it; save as to say that acting on information, Police Officers stopped the vehicle, search it and found 15 newspaper packets of dried leaves packed into the rear bumper after removing the loose number plate.

[20] These packets were sent for analysis to the Government Chemist who analysed the leaves to be marijuana of a total weight of 3,764.6 grammes which is the amount in the charge.

[21] Neither of the accused chose to give evidence. This is of course their right, however it means that there is no evidence before you to rebut the presumption that they possessed the drugs. If you find that one or both were in control of the car, then the drugs being found in or on the car, the accused is in possession of the drugs. You have heard nothing from the accused to say otherwise.

[22] That then is all I wish to say. You may retire now and consider your verdict. It would be better if you are all agreed, but that is not strictly necessary. When you are ready, tell one of my staff and I will reconvene the Court.

[23] Redirection

P.K. Madigan
Judge

At Lautoka
16 August 2011