State v Draiva [2015] FJHC 177; HAC43.2014 (12 March 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 43 OF 2014

BETWEEN:

STATE

AND:

IOWANE APISAI DRAIVA,
TREVOR MERVYN TAMBLYN

Counsel : Mr. Singh. A. for State,
The First Accused is in person,
Ms. Malimali. B. for the Second Accused Person,

Date of Hearing : 3rd – 12th of March 2015
Date of Ruling : 12th of March 2015

NO CASE TO ANSWER

1. At the conclusion of the prosecution case, the first accused person and the learned counsel for the second accused made applications pursuant to section 231 (1) of the Criminal Procedure Code that there is no case for the accused persons to answer as there is no evidence presented by the prosecution that the accused persons have committed the offence as charged in the information.
   
2. The two accused persons are charged with one count of Importation of controlled chemicals, contrary to section 6 (b) of the Illicit Drugs Control Act, 2004. The particulars of the offence are that;
   

"Iowane Apisai Draiva and Trevor Mervyn Tamblyn between 26th day of March 2014 and 1st day of April 2014 at Nadi in the Western Division without lawful authority imported into Fiji, a controlled chemical namely, (Pseudo) Ephedrine weighting 584.4 grams and being reckless as to whether that chemical is to be used in or for the commission of an offence".

3. The Prosecution called fifteen witnesses for the prosecution. The first accused submitted that there is no conclusive evidence that the substance ceased by the custom officer on 1st of April 2014 at the Carpenter's Freight bond is pseudo ephedrine. Accordingly, no evidence presented by the prosecution to the main element of this offence, that is the controlled chemical namely, pseudo ephedrine.
   
4. The learned counsel for the second accused person submitted that there is no relevant and admissible evidence to each of the main four elements of this offence as charged against the second accused person. She highlighted that Ms. Miliana Cokanavula, the Principle Scientific officer stated in her evidence that the colour change indicated after the presumptive colour test confirmed the substance is either ephedrine or pseudoephedrine. Therefore, no admissible evidence that the substance which is alleged to be imported by the accused person is pseudoephedrine as stated in the particulars of offence. She further submitted that there is no evidence adduced by the prosecution for other elements of "without lawful authority" and "being reckless as to whether it would be used for the commission of an offence".
   
5. The learned counsel for the Prosecution objected for these application of no case to answer and affirmatively submitted that there is evidence on each essential elements of the offence as charged in the information.
   
6. Section 231 (1) of the Criminal Procedure Degree states that:
   

" When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person committed the offence".

7. The test to determine whether there is evidence that the accused person committed the offence pursuant to section 231 (1) of the Criminal Procedure Decree is settled and precise. The correct approach is to examine whether there is some relevant and admissible evidence on each elements of the charged offence and not whether the evidence is fundamentally imprecise or inconceivable. ( State v George Shiu Raj and Shashi Shalndra Pal ( 2006) AAU008/05, State v Brijan Singh ( 2007) AAU0005, State v Rasaqio (2010) FJHC 284; HAC 155.2007 (5 August 2010).
   
8. Section 6 (b) of the Illicit Drugs Control Act states that;
   

" Any person who without lawful authority imports, exports, manufacture, possesses, or supplies any controlled chemical or controlled equipment –

(a)........

(b) being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5;.

9. Section 5 of the Act states that;
   

"Any person who without lawful authority-

1. Acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drugs, or
   
2. Engaged in any dealings with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import, or export of an illicit drugs,
   

10. It appears from the information, that the prosecution has alleged that these two accused person have acted together in order to commit this offence of importation of controlled chemicals. Accordingly, the prosecution is required to present evidence of joint enterprise. Hence, the main elements of this offence, that the prosecution has to establish in this case are that;
    
    1. The two accused persons,
    2. In joint enterprise,
    3. Without lawful authority,
    4. Imports any controlled chemicals,
    5. Being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5,
       
11. Having considered the main elements of the offence, I now turn to analyses the evidence presented by the prosecution with the applicable law on the issue of no case to answer.
    
12. There is evidence that the consignment, which was sent from Burundi, was consigned to the first accused person. The prosecution tendered the Air Way bill as the prosecution exhibit during the cause of their case. Mr. Shivneel and Mr. Sami confirmed that the first accused person came to pick the consignment on 1st of April 2014. Mr. Raveen Dutt in his evidence stated that the second accused contacted him 31st of March 2014, and asked Raveen to take him to the house of first accused person. They then went there in a taxi. From there, Mr. Raveen and the two accused persons went to the airport, where the first accused person went to the Carpenter's freight office to pick the parcel while Raveen and second accused were waiting outside in the taxi. Mr. Arvin Kumr in his evidence confirmed that he took Mr. Raveen and the two accused persons first to the house of first accused and then to the airport with the first accused on 31st of March 2014.
    
13. Mr. Prem Krishna Goundar, who is a taxi driver by profession stated in his evidence that he picked the two accused persons from Namaka and dropped them to the airport on the 1st of April 2014 in his taxi. At the airport, the first accused got down and went inside. He waited there with the second accused person for about 50 minutes. He then came back and dropped the second accused at the R.B. Jet point.
    
14. Parveshni Lata in her evidence stated that the second accused person told her that the parcel was actually for him and first accused was only the receiver. He further told her that the parcel contain drugs which he was planning to do business. According to the evidence presented by the prosecution, there are evidence that the two accused persons acted together to go and collect the consignment from the Carpenter's Freight Centre which contains drugs.
    
15. The main contention of the two accused persons is that there is no valid evidence that the substance found in the consignment is pseudo ephedrine as stated in the particulars of offence. The learned counsel submitted that the evidence of Principle Scientific Officer confirmed that the colour change indicated either pseudo ephedrine or ephedrine. In view of this contention, I draw my attention to the particulars of the offence. It appears that word "pseudo" has been stated as a parenthesis before the word "ephedrine" in the third line of the particulars of offence. Oxford Advance leaners dictionary explains "parenthesis as a word, sentence, etc. that is added to a speech or piece of writing, especially in order to give extra information. In writing it is separated from the rest of the text using brackets, commas or dashes. Accordingly the parenthetical word of "pseudo" stated within bracket before the word "ephedrine" denotes that the alleged imported controlled chemical is "ephedrine but it could be pseudo ephedrine as well.
    
16. The Principle Scientific Officer stated in her evidence that the illicit chemical found in the powder is either ephedrine or pseudoephedrine.
    
17. According to section 4 (2) of the Illicit Drugs Control Act, the proof of lawful authority lies upon the accused person.
    
18. In my conclusion, having considered the reasons set out above, I hold that there is evidence that the two accused persons have committed the offence of importation of controlled chemicals as charged in the information. I accordingly refuse and dismiss the applications of the two accused persons made pursuant to section 231 (1) of the Criminal Procedure Code.
    

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
12th of March 2015

Solicitors : Office of the Director of Public Prosecutions
The first accused person,
Pacific Chambers, Counsel for the second accused person.