State v Balaggan - Summing Up [2012] FJHC 1143; HAC049.11 (31 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 049 of 2011 (Ltk)

STATE

v.

MUSKAN BALAGGAN; and
ELTON XHEMALI

Hearing Dates: 21 – 31 May 2012
Summing Up: 31 May 2012

Counsel: Ms I. Whippy & Mr. M. Vosawale for State
1st Accused in person
Mr. F. Vosarogo for 2nd Accused

SUMMING UP

Madam Assessor and Gentlemen Assessors

[1] It is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the accused persons guilt or innocence.

[2] In going through the evidence, I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused. The State brings the charge against the accused. Therefore it is for the State to prove the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the accused is guilty of the charge you must be satisfied so that you are sure of his or her guilt beyond reasonable doubt. If you consider him or her innocent of the charge you must give your opinion that he or she is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the accused is not guilty of that charge.

[6] Both accused have elected not to give evidence in this case. The second accused refused to answer questions in his caution interview. I must direct you that any person suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. You must not hold his or her silence or refusal to answer questions, against him or her. The exercise of the right to silence cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.

[7] You must decide this case upon the evidence presented to you by the prosecution. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[8] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against the accused persons, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[9] However, it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[10] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statement and expert analyst reports.

[11] Neither speculation nor theories of one's own constitute evidence. Media coverage, idle talk, or gossips are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[12] This summing up is not evidence either, nor are counsel's opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[13] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness' answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[14] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses' evidence and demeanour together with all of the evidence in the case. You can accept part of a witness's testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[15] The witnesses called in the trial had to rely on their memory of events that occurred in January 2011. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred 16 months ago. You should make allowances for the fact that with the passage of time, memories fade.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the accused persons have been proved before you, proved with evidence led by the State.

[17] On count 1, the two accused are jointly charged with attempted exportation of an illicit drug.

[18] I must direct you to consider the evidence against each accused and on each count separately. You must not assume that because one accused might be guilty, then the other accused is also guilty on that count.

[19] I turn now to deal with what the prosecution must prove. In order to prove the offence of attempted exportation of an illicit drug, the prosecution must satisfy you beyond reasonable doubt of the following elements:

1. The accused persons

2. Without lawful authority

3. Attempted

4. To export

5. An illicit drug

[20] If you accept the expert evidence that the substance in this case is cocaine, then as a matter of law I must direct you that cocaine is an illicit drug.

[21] A person acts with lawful authority in relation to an illicit drug if that person has been prescribed the drug on a medical ground or the person's lawful profession involves administration of an illicit drug. There is no suggestion that the accused persons have acted with lawful authority in this case.

[22] To export means to take, or to cause to be taken, out of Fiji.

[23] Before you can convict the two accused for an attempt to export an illicit drug, you must be sure of two things: first that each accused intended to take an illicit drug out of Fiji and, that, with that intention, he or she did something which was more than mere preparation for committing that offence. It is for you to decide whether what each accused did was more than mere preparation.

[24] The prosecution's case is that the two accused acted together to commit the offence on count 1. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, they are each guilty. The words 'plan' and 'agreement' do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need to be said at all. It can be made with a nod and a wink, or knowing look, or it can be inferred from the behavior of the parties. The essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence and played his or her part in it however great or small so as to achieve that aim. Your approach to the case should therefore be as follows: if, looking at the case of either accused, you are sure that with the intention I have mentioned he or she took part in committing it, he or she is guilty.

[25] In this case there is no direct evidence against the second accused. However, it is not unusual for crimes to be committed in the absence of eye witnesses.

[26] The evidence relied upon by the prosecution in this case against the second accused is circumstantial evidence. You are asked to piece the story together from witnesses who did not actually see a crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

[27] A common example of circumstantial evidence is fingerprint evidence. Suppose a person's fingerprints are found on an object at the scene of a crime, such as a murder weapon. It could be inferred that the person has handled that weapon and been present at that place. The inference could be drawn even though there is no direct evidence that the person was seen there.

[28] On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of those things alone may be sufficient to establish guilt but, taken together, one circumstance building upon the other, they may lead to the conclusion that the accused is guilty of the crime.

[29] That is what the State is asking you to do as far as the second accused is concerned. The prosecutor has directed your attention to a number of facts and circumstances which she submits have been proved by the witnesses. Those facts and circumstances relate to the second accused's close association with the first accused at the Hexagon International Hotel immediately before and on the date of the alleged offence. Ms Whippy further points out to the evidence of the mobile phone records to show that the two accused were not mere strangers but closely associated to each other. You are asked to draw from these facts and circumstances the inference that the second accused was a party to the alleged offence. The defence does not dispute these facts and circumstances but says that the second accused's association with the first accused was just an innocent association and that no inference of guilt can be drawn from the circumstantial evidence.

[30] Therefore, you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the second accused having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

[31] On count 2, the first accused is charged alone with unlawful possession of an illicit drug.

[32] In order to prove the offence of found in possession of illicit drug, the prosecution must lead evidence which satisfies you beyond reasonable doubt the following elements:

1. That the accused was in possession;

2. Of an illicit drug;

3. Without lawful authority.

[33] The same alleged illicit drug in count 1 is subject of count 2. So if you accept the substance found is cocaine and that the accused had no lawful authority in relation to the drug, then the last two elements are proven.

[34] Possession is proven if the accused intentionally had the substance in her physical custody or control to the exclusion of others, except anyone who was acting in concert with her in the alleged offence.

[35] The prosecution must also prove beyond reasonable doubt that in intentionally having such custody or control, the accused did so with the knowledge or belief that the substance was an illicit drug – not necessarily the illicit drug charged here, but a drug the possession of which is prohibited.

[36] The first accused is unrepresented. She must not be prejudiced in her defence due to the lack of legal representation. I have a duty to put to you any defence that is available to her. In her caution interview, the first accused said she was acting under duress. She said she was driven to do what she did by threats to her and against her boyfriend and her family by one Ramesh in Melbourne, Australia. She further said the second accused physically and sexually assaulted her and forced her to carry the suitcase.

[37] Duress of this kind may be a defence to a criminal charge. Because it is for the prosecution to prove the accused's guilt, it is for them to prove that defence of duress does not apply in this case. It is not for the accused to prove that it does apply.

[38] First you must ask whether the first accused was driven to act as she did because she genuinely and reasonably believed that if she did not do so, she or a member of her immediate family would be killed or seriously injured either immediately or almost immediately. If you are sure that this was not the case the defence of duress does not apply and the first accused is guilty.

[39] However, if you think that this was or may have been the case you must next consider whether a reasonable person, in the accused's situation and believing what the accused did, would have been driven to do what the accused did. By a reasonable person I mean a sober person of reasonable firmness and of the accused's age and sex, that is, a female in her early twenties. The reactions of a reasonable person may or may not be the same as those of the accused herself. If you are sure that a reasonable person would not have been driven to do what the first accused did, the defence of duress does not arise and the accused is guilty. However, if you think that a reasonable person would or might have been driven to do what the first accused did, the defence of duress does apply, and you must find her not guilty.

[40] The final question is this: did the first accused take an opportunity to escape from the threats without injury to herself or her immediate family, for example by going to the police either in Australia or Fiji, which a reasonable person in the first accused's situation would have taken but which the first accused did not take. If you are sure that she had an opportunity to escape, for instance, the taxi driver Jagendra Pillay told you that when he transported Balaggan from the hotel to the airport he drove past a police station but Balaggan made no complains to him, the defence of duress does not apply and the first accused is guilty. However, if you are not sure of this the defence of duress does apply and you must find the first accused not guilty.

[41] On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed. However, there are some further directions I give on a few items of evidence which you must accept and apply.

[42] The prosecution has produced the records of interviews of the first accused by the police. The prosecution asserts that although you should not accept everything said by the first accused to the police as accurate nonetheless interviews contain admissions by the first accused that proves possession of an illicit drug and an attempt to take an illicit drug out of Fiji to Australia and the prosecution further contend that those admissions are true.

[43] The first accused says that she made none of those admissions and they were fabricated by the police. She further says she was threatened, forced, and induced by the police and some of her signatures have been forged.

[44] In deciding whether you can safely rely upon the admission, you must decide two issues:

1 Did first accused in fact make the admissions? If you are not sure that she did, you must ignore them. If however you are sure she did, then:

Are you sure that the admissions are true? In addressing that issue, decide whether they were, or may have been, made or given as a result of oppression. If you conclude that the admissions were or may have been obtained by the police officers as a result of oppression then you must disregard the admissions.

[45] In this case, the first accused alleges that she was threatened, forced, promised immunity and kept under oppressive conditions for four days during her interview. If you conclude that that allegation is or may be correct and that the admissions were or may have been obtained as a result of that conduct, then you must disregard the admissions.

[46] If, however, you are sure that the first accused made the admissions and that they were not obtained in that way, you must nonetheless decide whether you are sure that the admissions are true. If, for whatever reason, you are not sure that the admissions are true you must disregard them. If on the other hand, you are sure that they are true, you may rely on them.

[47] If you accept the caution statements of the first accused, then there is a further direction I must give you. The caution statements of an accused are only admissible against the maker of the statements. What the first accused said in her caution statements are evidence against her only. If the first accused implicates her co-accused in her caution statements, that is not evidence against the second accused. When you come to consider the case against the second accused, you must disregard everything she said in her caution statements against him. The first accused's caution statements can only be used against her.

[48] I will now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel or the accused. I will summarize the salient features. There are also a number of documents which have been constantly referred to during the trial. If I do not mention a particular witness, or a particular piece of evidence, or a particular document or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[49] In my summary of the evidence, I will refer the first accused as Balaggan and the second accused as Xhemali.

The prosecution evidence

[50] The first set of witnesses was employees of Hexagon International Hotel. Both Balaggan and Xhemali were guests at Hexagon Hotel. Xhemali checked in at the hotel on 12 January 2011 in room 400. Balaggan cheked in on 24 January 2011 in room 502. You will recall neither Balaggan nor Mr Vosorogo suggested in their cross-examination of the witnesses that they were mistaken of the identity of the accused persons.

[51] Marasio was a manager at the hotel. He said on 24 January 2011 at around 5pm Xhemali approached him and enquired about an Indian girl who was supposed to be a guest at the hotel. At that time the guest had not checked in. Xhemali advised Marasio to let him know once the guest has arrived. After 30 minutes Balaggan arrived at the front desk to check in. Xhemali came down and paid for Balaggan's room. He paid $154.00 for 2 nights. Xhemali wanted a room next to his for Balaggan but none was available.

[52] Seiban Bibi was a maid at the hotel. She said when she went to clean Xhemali's room on 26 January 2011, she saw Balaggan inside his room. Balaggan told Bibi that she had left her phone charger in room 502. Bibi went to room 502 and found the charger. She used the phone in room 502 and called Xhemali's room to let Balaggan know that she had found the charger. Balaggan came and got the charger from Bibi.

[53] Tupou who was a receptionist at the hotel said on 26 January 2011 at around 12 noon Balaggan and Xhemali approached her at the front desk to check out. Balaggan paid for the remaining balance for the two rooms using her MasterCard. The guest invoices (P3 & P4) and the MasterCard (P1) are in evidence. You will see that the MasterCard has Balaggan's name.

[54] Katarina was also a receptionist on duty at the hotel on 26 January 2011. Xhemali came to the front desk at around 5 pm. He told Katarina that he had left some items in his room for them to take. Katarina saw Xhemali and Balaggan leave in different taxis after checking out from the hotel.

[55] Anare was a security officer at the hotel. After Xhemali had checked out, he went to room 400 and brought two bags (P4 &P6) and a box (P5) that were left behind and gave them to Katarina.

[56] On 25 January 2011, at about 12 noon, Balaggan went to the Air Pacific office at Nadi airport. She was attended by Shelvin. Shelvin said Balaggan showed her ticket and wanted to change her departure date from 25 January 2011 to 27 January 2011. Shelvin said since there was no flight to Melbourne, Australia on 27 January, Balaggan agreed to change the date to 26 January 2011 after making a call on her mobile. A print out of Balaggan's ticket is (P7). Later on the same day at around 4pm, Xhemali went to the Air Pacific office and reserved a one way ticket to Melbourne for 26 January 2011. On 26 January 2011 at around 10 am, Xhemali returned to Shelvin with Balaggan and paid cash for his ticket. A print out of Xhemali's ticket is (P9).

[57] Abdul Saheem is the taxi driver who transported Xhemali from Hexagon Hotel to Nadi International Airport on 26 January 2011. Around the same time, Jagendra Pillay transported Balaggan to the airport in a different taxi.

[58] The next three witnesses were the ATS employees at Nadi International Airport. Shailen Chand was the supervisor on duty when Balaggan and Xhemali checked in separately for outbound flight to Melbourne. The flight number was FJ391. The departure time was 6.25pm.

[59] Nilesh Raj was the ATS agent who checked in Balaggan. Balaggan was the last passenger to check in at around 5.20pm with one bag. Nilesh asked Balaggan the standard security questions about her luggage. Balaggan told Nilesh that it was her bag, she knew the contents, she packed it herself and the bag had not been out of her possession. Nilesh gave Balaggan her boarding pass and placed her bag aside.

[60] Tandra Andrews checked in Xhemali around the same time Balaggan was checked in by Nilesh. Xhemali's checked in luggage is (P10).

[61] Praveen Narayan told you that Balaggan identified her checked in luggage to him. A search was done of Balaggan and Xhemali's checked in bags at HBS area. She opened her bag in Praveen's presence. Praveen noticed powdery substance on the clothes inside Balaggan's bag. When Balaggan was asked about the contents, she said the bag belonged to Xhemali. Xhemali denied any knowledge of the bag. I must remind you that what Balaggan said to Praveen about the bag are evidence only against her. You must not use Balaggan's out of court statement implicating Xhemali when you come to consider his guilt.

[62] Asalusi searched Xhemali's bag. Nothing suspicious was found in Xhemali's bag.

[63] Mozima Irram of Fiji Police Force recorded and took photographs of the contents of Balaggan's bag. She noted crystal like deposits on the clothes and the clothes were unusually stiff.

[64] WPC Mereoni said she escorted Balaggan from the airport to the border police station after she was detained and arrested.

[65] WPC Rounds recorded the caution interview of Balaggan. The record of interview is P12. WPC Rounds said Balaggan freely and voluntarily gave her interview and that she did not fabricate the answers but recorded what Balaggan told her. In her interview, Balaggan stated that one Ramesh got her to come to Fiji and to carry a suitcase to Melbourne, Australia. Balaggan said when she refused to do the job, Ramesh threatened to kill her parents, family and her boyfriend. Balaggan said that Ramesh raped her in a hotel room in Melbourne, the day before she arrived in Fiji. Balaggan said she arrived in Fiji, and when she refused to take the suitcase, the second accused physically and sexually assaulted her in her hotel bedroom at 2 am on 26 January 2011.

[66] After the interview, Balaggan was taken for a medical examination because she accused her co-accused to have assaulted her. The medical report of Balaggan is D1. The report notes the following injuries: a less than 1 cm abrasion on the left shoulder, hematomas on the left breast, and bruises on the left knee and ankles and a slight inflation on back of the left shoulder. Mr Vosorogo pointed out that the injuries are not consistent with being hit on the head as stated by Balaggan in her caution interview. It is matter for you to decide whether the injuries noted in the medical report are consistent with what Balaggan said about her assaults in her caution interview.

[67] WPC Luseta formally charged Balaggan on 29 January 2011. Balaggan's charge statement is P13. The charge statement was witnessed by DC Arvind. In her charge statement, Balaggan admitted she had knowledge of cocaine in the clothes inside the bag.

[68] Alamgeer Shah tendered the Vodafone records of two mobile numbers. Number 8642832 was registered under the name of Muskan Balaggan. Number 9035321 was registered under the name of Elton Xhemali. Mr Shah highlighted the numbers of calls made between these two numbers and the durations of each call, between 25th and 26th January 2011.

[69] Cpl Naidu said he was not involved in the interview of Balaggan. He only recorded statements from certain witnesses.

[70] DC Navin witnessed the detention and arrest of Balaggan. He said Balaggan was not mistreated at any time after her arrest at the airport.

[71] Neil Foletta is an Australian customs officer who received the bag containing materials for testing and handed over to the Australian Federal Police officers.

[72] Federal Agent Olinder is a qualified crime scene scientist at Australian Federal Police, Melbourne, Australia. He conducted an initial chemical test after receiving the suitcase containing clothes from Sgt Vikash. Agent Olinder said he found the clothes were unusually stiff and bore visible white crystal like residues. The initial chemical test revealed that the substance on the clothes was cocaine. After conducting the preliminary test Agent Olinder prepared and packaged the clothing in one plastic bag for transportation to the National Measurement Institute (NMI) in Sydney for full extraction and analysis of the substance.

[73] Natalie Hau is an analyst at the Australian Forensic Drug Laboratory. Her qualifications are not in dispute. Ms Hau conducted the tests on the clothing that were prepared and packaged by Agent Olinder. She explained to you the nature of the tests that she conducted on the clothing. The tests revealed that the clothing contained a minimum 521.6g of pure cocaine.

[74] Agent Ismail carried the sealed physical exhibits, that is, nine buckets and a box of samples containing the clothing and cocaine from Sydney to Fiji.

[75] The last witness was Sgt Vikash. He was the investigating officer. He gave evidence that once the bag was seized from Balaggan, he secured the items and took them to Australia for testing. Sgt Vikash witnessed the caution interview of Balaggan. He said there was no point conducting a confrontation between the two accused because Xhemali exercised his right to remain silent and not to answer questions in his caution interview.

[76] That was the evidence for the prosecution. As I said earlier, you will have to decide the charges on the evidence led by the prosecution.

Summary

[77] On count 1, the prosecution says that both accused were in it together. Both accused had different roles to play. Xhemali's role was the facilitator of an illicit drug. Balaggan's role was the carrier of an illicit drug. The prosecution says that the association between the two accused at the Hexagon Hotel was part of their common intention to take an illicit drug out of Fiji to Australia. Ms Whippy says that two strangers checking into the same hotel, paying for each other's rooms, changing their air tickets to get into the same flight and checking out from the hotel at the same time but going to the airport in different taxis, were acts carried out in pursuit of their common intention to commit the charged offence. The prosecution says that they checked in at the international airport, albeit separately, proves the intention of each accused to take an illicit drug out of Fiji and each accused took steps to carry out his or her intention and those steps were more than mere preparation.

[78] On count 2, the prosecution says that the illicit drug, namely, cocaine, was found in the suitcase that Balaggan checked in at the airport on 26 January 2011.

[79] Balaggan says the suitcase did not belong to her. She says she was not aware of its contents. She says she only carried the suitcase under threat by one Ramesh and her co-accused. You must look at all the circumstances and the conduct of Balaggan before she was detained by the customs officer at the airport, when you consider her defence of duress as explained by me.

[80] Mr Vosorogo says that there is nothing sinister about Xhemali's association with Balaggan at the Hexagon Hotel. He says that nothing suspicious was found in Xhemali's possession when he was detained at the airport and guilt is not the only rational inference you can draw from the circumstantial evidence.

[81] What inferences you draw from the proven facts and circumstances is a matter for you. Which version of the facts you accept is also a matter for you.

[82] If the prosecution has satisfied you of the guilt of each accused, then the proper opinions would be guilty. But if you feel not sure of the guilt of the accused concerned or if you have a reasonable doubt, then you must express opinions of not guilty.

Conclusion

[83] Remember to consider the evidence against each accused separately. Your opinions on each count are either guilty or not guilty. You may retire now. Once you have reached your opinions, please advise the court clerk, and the court will re-convene to receive your opinions.

Daniel Goundar
JUDGE

At Suva
31 May 2012

Solicitors:
Office of the Director of Public Prosecutions for State
1st Accused in person
Office of Mamlakha Lawyers for 2nd Accused