State v Draiva [2015] FJHC 186; HAC43.2014 (16 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 Summing Up : 16th of March 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
5. You must reach your opinion on the evidence, and only on the evidence itself. The evidence is what the witnesses said from the witness box, and the documents and other materials received as exhibits. A few things you have heard during the cause of the hearing are not evidence. This summing up is not evidence, and statements, arguments, questions and comments made by the counsel or accused person are not evidence either. The purpose of the opening address by the learned counsel for the prosecution was to outline the nature of evidence intended to be put before you. The closing addresses of the counsel are not evidence too. They were their arguments, which you may properly take into account when you evaluating the evidence, but the extent to which you do so are entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside this courtroom, you must exclude that information or opinions from your consideration. Have regard only to the testimony and the exhibits put before you in this courtroom since this trial began. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate of facts of this case among yourselves only. However, each one of you must reach your own conclusion or form your own opinion. You are not required to give reason for your opinion, but merely your opinions themselves. Your opinion need not be unanimous, though it would be desirable if you could agree on them. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all feelings of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
8. Matters which will concern to you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
   
9. You have seen how the witnesses presented in the witness box when answering questions. Bear in mind that many witnesses are not used to giving evidence and may find the different environment distracting. Consider the likelihood of the witness's account. Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or know the things that the witness testified about. Another point may be; has the witness said something different at an earlier time? These are only few general considerations which I assumed will assist you in your deliberation. It is, as I have said, up to you to assess the evidence and what weight, if any, you give to a witness's evidence or to an exhibit.
   

Burden and Standard of Proof

10. I now turn to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocent is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the cause of this hearing.
    
11. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other word, there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
12. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means, that the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

The Information.

13. 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 (hereinafter referred as The Act). The particulars of the offence are that;
    

"Iowane Apisai Drava 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".

14. I will refer first accused person as Iowane and the second accused person as Trevor during this summing up.
    
15. 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;

16. I now draw your attention to the offence stipulated under section 5 of the Illicit Drugs Control Act, where it 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,
   

17. Accordingly, the main elements of the offence of importation of controlled chemicals are that;
    
    1. The two accused persons,
    2. Without lawful authority,
    3. Imports any controlled chemicals,
    4. Being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5,
       
18. It appears that the prosecution has alleged that the two accused person have acted together to commit this offence. If a criminal offence has committed by two or more persons, each of them may have played a different part, but if they acted together as part of a joint plan or agreement to commit the offence, they are each guilty. The words "plan" and "agreement" do not denote that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing needs 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 behaviour 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 as to achieve that aim.
    
19. The onus of proving the existence of "lawful authority" lies upon the accused persons pursuant to section 4 (2) of the Illicit Drugs Control Act, where it states that;
    

"In any proceedings under this part, proof of lawful authority lies upon the accused person".

20. I now take your attention to the third element of the offence that is imports of any control chemicals. If someone brings or cause to be brought a control chemical listed in schedule 2 of the Act into the Fiji islands is considered as an importation of control chemical.
    
21. In respect of "recklessness" section 21 of the Crimes Decree defines it as that;
    

(1) A person is rec with with respect to a circumstance if —

(b) having regard to trcumstaumstaumstances known to him or her, it is unjusble te the risk.

(2) A person is recklesckless with respect to a result if —

(a)&#1 or she is aware of a substsubstantial risk that the result will occur; and

(b) having d to the circumstancstancesn to him or her, it is unjustifiable to take the risk.

22. I now draw your attention to theo the particulars of offence as stated in the information. It states that the control chemical is (pseudo) ephedrine. It appears that the 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" however it could be pseudoephedrine as well.
    
23. Schedule two part 1 of the Illicit Drugs Control Act has listed ephedrine and pseudoephedrine as controlled chemicals.
    
24. Accordingly, it is the onus of the prosecution to establish beyond reasonable doubt that Iowane and Trevor, acting in join enterprise or in common intention, imported ephedrine or pseudoephedrine weighting 584. 4 grams and were reckless as to whether that chemical is to be used in or for the commission of an offence under section 5 of the Act.
    
25. I now kindly request you to draw your attention to the two sets of agreed facts which are before you. One is the agreed facts for the first accused person and other one is for the second accused person. I do not wish to reproduce them in my summing up. You are allowed to consider these two sets of agreed facts as proven facts beyond reasonable doubt against the two accused person by the prosecution.
    
26. It is important to note that proof can be established only through evidence. Evidence can be presented in the forms of:
    
    1. Direct evidence,
    2. Circumstances evidence,
    3. Documentary evidence,
    4. Expert evidence.
       
27. The direct evidence is the evidence of a person who saw, heard and/or felt the offence being committed. This evidence may directly prove a thing.
    
28. However, in addition to facts directly proved by the evidence, you may also draw inferences- that is, deductions or conclusions- from facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else occurred. That will be the process of drawing an inference from facts. For example, suppose that when you went to sleep it had not been raining, and when you woke up you saw rainwater around. The inference – deduction/ the conclusion- would be that it had rained while you were asleep. These are circumstances evidence. Witness who gives evidence in this nature actually did not see, hear or feel the offence being committed, but gives evidence of relevant circumstances and the events, from which you are able to make certain conclusion-/deduction of the commission of the offence. Those inferences should certainly and only find the accused is guilty of the offence. If the circumstances or the event established by evidence suggest you some other probable circumstances or inferences, which show the innocence of the accused or creates a doubts as to his guilt or innocence, you are not entitled to draw any inference of guilt of the accused person.
    
29. The evidence presented in the form of documents is considered as documentary evidence. In this case, the prosecution tendered number of documents in the form of documentary evidence.
    
30. It is the general rule that witnesses are normally not allowed to give opinion and only allow to give evidence on what they have seen, heard, or felt by their physical sense. However, the exception is that the evidence of expert witnesses. Expert witnesses are those who are learned and experts in a particular subject or field with relevant experience. Such witnesses are allowed to give evidence of their opinion. In this case, the Principle Scientific Officer who conducted the test at the Koranivira research centre is an expert witness. The opinion that she has expressed could be taken into consideration in your deliberation of evidence, if you believe and accept her evidence.
    
31. I now draw your attention to summarise the evidence presented by the prosecution during the hearing.
    
32. The first prosecution witness is Shivesh Shivneel Kumar. He was a custom clerk at the FedEx department of the Carpenter's Air Freight at the time of this alleged incident took place. In his evidence Mr. Shivneel explained his duties and responsibilities as a custom clerk. Among his other duties, he had to examine and deal with the cargo coming from overseas. It was his duty to contact the consignee mentioned on the air way bill when they received a package from overseas. Then he had to explain them the procedure of the Fiji Custom for them to clear the consignment. Mr. Shvneel explained the purpose of the air way bill and the commercial invoice.
    
33. He was on duty on 26th of March 2014 and recalled receiving a package that was consigned to Iowane Apisai Dravia, the first accused. He tried to contact Iowane on the mobile number provided in the Air way bill, on 27th and 28th of March 2014, with no avail. However, Iowane came to the Carpenter's Freight bond on 31st of March 2014 and inquired about the consignment. He was told to bring his TIN letter. He then went back and came on 1st of April 2014 with his TIN letter.
    
34. Mr. Shvneel together with Iowane went to the Carpenter's Freight bond, where they met custom officer Mr. Praneel Sami. Mr. Sami then started his inspection on this package. Iowane opened the package in the presence of Mr. Shvneel and Mr. Sami. They found five miniature toys and a bottle of Jonson & Jonson baby powder inside the package. Having examined the baby power bottle, Mr. Sami informed the first accused that he will detain the package with its contains for further testing as he was suspicious on the powder. His suspicion was founded on the fact that this type of baby powder are commonly sold in Fiji and why the consignee still wanted to get it from overseas. Apart from that, they found the texture of the powder was different from the normal baby powder. He then put the item back into the package and sealed it with a tape.
    
35. Mr. Shvneel stated that the package was in a good condition when he first saw it. It was a package with bubble envelop inside it. He tendered the Air way bill and commercial invoice as prosecution exhibits. He stated that according to the air way bill that this consignment had sent from Burundi and transited in Sydney before it reached to Nadi. According to the commercial invoice the package was handed over to the currier office in Burundi on the 18th of March 2014. He positively identified the cover of the package, the bottle of baby powder, five miniature toys and the white powder during his evidence-in-chief.
    
36. During the cross examination, Mr. Shvneel stated that the package received in the night of 26th of March 2014. He then tried to contact the first accused on the following morning.
    
37. Mr. Shvneel further stated that custom officer Mr. Sami unsealed the bottle and poured little bit of the power on to his hand and checked the substance from his hand. He also took little bit of the powder from the bottle and felt the difference of the texture of the powder. Both of them then put the powder back into the bottle. Furthermore, he stated that he has no knowledge of the custom and scanning procedures in the Sydney airport.
    
38. The second prosecution witness is Mr. Praneel Yanket Sami, who is a custom officer at the Inspection Branch of Fiji Custom and Revenue Department at the Nadi International airport. He explained in his evidence the procedure of the examination of goods that are consigned for individuals before they are released. He was on duty on 1st of April 2014, where he was assigned to examine the consignments at the Carpenter's Freight bond. He was accompanied by Shivneel Kumar. He recalled that he examined a package consigned to the first accused person. He first examined the air way bill and the commercial invoice attached to the package and verified the details and information on those documents. He confirmed that the first accused was present at the time of this examination of the package. The package was sent from Bujumbura, Burundi and consigned to Iowane. He stated that this package had transited via Sydney. He affirmatively stated that according to the regime of exportation, the package can only be open by the Fiji custom in the presence of the consignee. Therefore, he stated that the package could not be open in Sydney.
    
39. Having examined the documents, he asked Shivneel to open the package in the presence of Iowane. He found five miniature toys and a bottle of Jonson & Jonson baby powder. Mr. Sami further stated that he had few suspicious after examined the package. The first was that why five miniature toys and a bottle of baby power sent from Burundi to Fiji. The second was that the first accused Iowane told him that it was a gift when he was asked the reason for importing such items from Burundi. The freight charges for just a bottle of baby powder and five miniature toys were US $267. The third suspicious was that he found the weight of the bottle was 650 g when the label on product says it 500g. He then took off half of the sticker on the lid of the bottle and poured some of the powder on to his hand and felt the substance from his other hand. He felt the texture of the powder was not similar as of normal baby powder. He put the powder that he tested by hand back into the bottle. That was his fourth suspicious.
    
40. . He admitted that he was not wearing any gloves when he checked the powder. He then informed Iowane that he wanted to take this powder for further testing. At that point Iowane told him that the parcel was not for him and it was for a person called Trevor (2nd accused) and he was only a receiver of the parcel. Mr. Sami then informed him that it is an offence to clear good on behalf of someone else. Iowane then told him that the powder is a gift for his baby from Trevor.
    
41. The items were put back into the package by Shivneel and sealed it with a brown tape. The package was taken to further testing at the baggage control hall, it is a restricted area for public. Iowane was asked to wait at the Carpenter's bond while Mr. Sami and Shivneel went to further testing. It was tested in the Ion machine at the baggage hall. Ion machine is an indicator of the drugs and not produce any conclusive result. He explained the procedure of operating and testing of the Ion machine. The machine was operated by Rajneel and tested in the presence of Shivneel and Mr. Sami. He stated that he open the lid of the bottle and poured bit of the powder as sample on to a A4 paper and then put sample to the pad of the stick and inserted in into the machine. He took samples from the bottle four times for the tests. They have conducted 4 tests. The machine gave them printed results for those four tests.
    
42. The result of the first test is that 4% of Tetra Hydro Cannabino (THC), the second is 3% of Amphetamine, the third result was 1% of THC and fourth was 3% of THC and 3% of Cannabis. He tendered the copies of the test result reports as prosecution exhibits. Subsequent to the test, he poured back the sample powder into the bottle. Then it was put back into the package with toys and sealed with custom's tape. Mr. Sami then made a detention note that is a notice issued when goods are being held for further investigation. The original copy of it was given to Iowane. He then made a seizure report and got the signature and recommendation of the Officer in Charge and handed the package over to the Custom Investigation Branch (CIB), where Custom Officer Vasiti Toga received it. Before the package was handed over to CIB, he made a cart note for the delivery of the items.
    
43. When he was cross examined by Iowane, Mr. Sami explained the time gaps between the four tests conducted with the Ion machine. He stated that after the first test, they had to bring new printing sheets that cause a delay of more than one hour between the first test and second test.
    
44. Answering the questions posed by the learned counsel of Trevor, Mr. Sami explained the procedure of scanning of goods on transit. He stated that unless the intelligent unit in Sydney airport recommended and profiled them for a scan test, the packages are not allowed to scan during their transits. Only the consignee is permitted to open the package. While explaining how he checked the powder at the Carpenter's bond, he stated that he twisted the lid, open it and then poured little bit of powder on his hand. He confirmed that no one touch the powder apart from him.
    
45. Mr. Sami stated that his statement given to the Police on the 1st of April 2014 is a summary of the event that took place on that day. It only concentrated about the testing and seizure of the substance. Iowane was not explained or given his rights when he was questioned about the package, since he was not under arrest or considered as a suspect for committing any crime at that time. He further stated that he questioned him to further clarify the events and not as a suspects or arrested person. His team leader Mr. Ajaz advised him to go ahead with the testing while Iowane was waiting at the Carpenter's bond. He explained that the package was with him under his supervision at all material time until it was handed over to Custom Investigation Branch.
    
46. Mr. Sami admitted that he touched the substance and put it back into the bottle before it was tested and that would expose the powder for contamination. After the Ion test, the package was resealed with the item and he informed his team leader Mr. Ajaz. The team leader then called Iowane to their cargo office. The Carpenter's bond is about 20 meters away from the baggage hall.
    
47. Ms. Vasiti Toga is the third prosecution witness. She is a custom officer attached to the Nadi International Air Port in 2014. She was the officer who received the package with its items and other relevant documents from Mr. Sami at the Custom Investigation Branch on 1st of April 2014. Two other officers were present at her office when she received the package. She then investigated the documents that she received and then the items in the package. Having conducted her investigation, she made her report to the Team Leader and recommended to forward the items to Border Police for further verification. The Team Leader consented for her report and advised her to formally transfer the items to the Border Police station. She then made a cart note and handover document. She admitted that the date in the cart note was her mistake as it has a wrong date. Upon finalising the relevant documentation, she handed over the package with those documents to Sgt Ame at the Border Police Station.
    
48. She positively identified the items and documents given to her by Mr. Sami in her evidence. She stated that according to the documents, Iowane is the recipient of this package. She did not see him as he was not present when she was given the package with its documents. She stated that it was not required to Iowane to be present as the freight agent was present at that time. She explained that Iowane was not under arrest or in their custody at that time as they were still in the process of verification of the items. Therefore, there was no requirement to give or caution him of his rights.
    
49. Moreover, she explained the procedure of conducting an Ion scan test. She again reiterated that the presence of the consignee was not required as the agent of him was present during the testing. The testing area is a highly restricted area for public. It requires prior approval from the Air Port Fiji Authority to take an outsider into the area. She said the Ion machine is used at the airport to test whether any controlled substance are coming into the country. It is an indicator of the presence of controlled substance.
    
50. Ms. Toga stated that the Custom Investigation Branch has no lab facilities. Therefore they have to handover the items to Border Police for further verification.
    
51. During the cross examination by the second accused, Ms. Toga admitted that Iowane could have just walked out without waiting for the testing if he wished. She had inquired from Mr. Sami where the owner of the consignment was and found out that he was waiting outside. She confirmed that the package was taped when it was given to her. She then opened it and investigated. She taped it with custom taped when she handed it over to the Border Police station. She further stated that the note of the seizure report has not address to her, but she received another note from team leader to conduct this investigation. She further stated that it is not a requirement to use gloves during the examination of the goods as well as during the testing of Ion machine. She admitted that she actually did not see the powder inside the bottle.
    
52. The fourth prosecution witness is Susana Lawedrou. She is a Forensic Chemist Technical Assistance of Fiji Police Force. She has a Bachelor of Science Degree, majoring chemistry and biology from the University of the South Pacific. She was based at Koranivira research Centre in 2014. She received a package from Cpl Savanaca of Border Police Station on the 2nd of April 2014. The package was sealed and was in a brown box. She checked the contained in the package, where she found a FedEx box, FedEx pack, white Jonson & Jonson baby powder 500g bottle, five small toys. She then documented them for references. After making her report, she handed it over to the principle research officer on 2nd of April 2014.
    
53. She was not cross examined by the first accused person but she was cross examined by the learned counsel of the second accused person. She stated that she used gloves to take the items out from the box in order to avoid any contamination. They have regulations to handle items such as powder. She stated that any physical touching has to be done in a very well ventilated area or a fume hood. They are required to use gloves, lab cloths in order to prevent any body harm.
    
54. The fifth prosecution witness is Ms. Miliana Cakalavula. She is the Principle Scientific Officer of the Fiji Police Force. She first explained her educational background, where she stated that she has obtained a Bachelor of Technology, majoring forensic and analytical chemistry from Flinders University of South Australia, Certificate of Proficiency in Botanical Identification of Cannabis from the Institute of Environmental Scientific Research and Master of Business Administration from the University of the South pacific. She has become the principle scientific officer in June 2012. She then explained her duties and responsibilities in her office as the principle scientific officer.
    
55. She explained the procedure and the manner of conducting the colour presumptive test. She first took the powder from the container and then took a small sample of it for the first test of Marquis Reagent. Then she observed there is no colour change in the sample. She said the result of no colour change indicates that the substance contains either cocaine or pseudoephedrine. The Marquis Reagent test is a universal test which is done according to the guidelines of United Nation Office of Drugs and Crimes. She then conducted Scotts test for which she extracted another sample from the powder. She again observed no colour change. The third test done by her was Chen Kao test. She observed violet colour which indicates the substance contains pseudoephedrine.
    
56. These tests were done at the Agricultural chemistry lab in Koranivira research centre. She was assisted by her senior scientific officer and Technical Assistance Susana. She positively identified the package that she received on 2nd of April 2014. Subsequent to the test, she put the white powder into an open plastic bag and sealed it with the lab job number. Other items in the package were also sealed in the same manner. She then made her test report, which was marked and tendered as prosecution exhibit 12. She further filled an analysis form which provides the nature of the analyst, and also certified the analyst. The analysis form was marked and tendered as Prosecution exhibit 13. She stated that the result is a conclusive result.
    
57. Moreover, she explained that if a person touched or took a small sample from the white substance, it would not affect or contaminate the substance. She further said that unless the person who touched or took a sample from the substance, did not introduce anything into it, it would not affect the results of the testing which she did.
    
58. She stated in her evidence that pseudo ephedrine is an active ingredient in cold/ flu tablets. However, it is also a key ingredient of making methamphetamine, which is an illicit drug. She has observed and found that the white powder contains strong concentration of pseudo ephedrine than in the presence of cold/flu tablets. Such opinion was founded on the facts that pseudoephedrine contains in cold tablet does not give such a strong colour change.
    
59. When she was cross examined by Iwone, she stated that the substance was locked in the exhibit room of the lab on the night of 2nd of April 2014. She further said that the all three officers, including her involved in the testing are officers from the civilian staff of the Fiji Police. She explained that they followed the procedure of the testing lab and no one was present from the side of the accused person.
    
60. She has not calculated the percentage of the pseudoephedrine contain in the power of 584.3g. She said that they do not test how much of pseudoephedrine in the powder as it is not required under the Illicit Drugs control Act. She does not know the actual percentage of pseudoephedrine in the powder.
    
61. She admitted that in order to preserve the integrity of the sample, it is important to document the chain of custody. She is familiar with the testing of Ion machine and explained the proper procedure of testing with the Ion machine. She said that it is not necessary to take any sample out physically from the bottle. There is a spatula to collect and remove the sample from the machine. It is important to handle the sample with caution. Moreover, she stated that if the samples kept in open for about one hour and fifteen minutes, there could be a danger of contamination. She then sated that the proper procedure would be to isolate the samples which was touched or kept in open and send the rest for the testing.
    
62. She was asked for her opinion if one custom officer having handled about 20 other parcels, took some of the powder into his hand, touched it and then put it back to the bottle, would it enough to interfere with the result of her tests. She expressed her opinion that it wouldn't have affected with the result she had. She further explained that she took very small amount of powder as sample and if that amount had been affected by something being introduced to it, then the result would have been affected.
    
63. Explaining the procedure of colour presumptive test during her cross examination, she stated that Marquis Test gave no colour change and it was inconclusive. That means that the sample has either cocaine or pseudoephedrine. She then did the Scotts test, which is also inconclusive and then proceeded with Chen Kao test, which gave the colour change of violet. She said the Simon test is only for Methamphetamine and Amphetamine. When she was referred to United Nations office on Drug and Crime's scientific and technical notes, she admitted that it has mentioned that the presumptive tests are not consider sufficient for drugs identification.
    
64. Furthermore, she testified in her cross examination that there are only two substances that change to the colour of violet when Chen Kao test is applied, they are ephedrine and pseudoephedrine. That was the reason she used the word" pseudo" as a parentheses within brackets before the word "ephedrine" in her report which was marked and tendered as prosecution exhibit 12. The drugs tested in the powder could be either ephedrine or pseudoephedrine. Ephedrine and pseudoephedrine are very similar in its formation and structure. After the Chen Kao test, she gave the result to Cpl Savanaca. The sample was then tested with Fourier Transform Infrared Spectrophotometer and it tested positive for pseudoephedrine. However, the test result or report of such a test is not disclosed during the hearing. She admitted that she only verbally informed Cpl Cavanaca about the said test and the report was not given to or collected by the investigation officer.
    
65. In her re-examination, she confirmed that ephedrine is an illicit drug. Based on the rapid colour change and the very strong violet colour observed, there is a high concentration of ephedrine or pseudoephedrine in the tested substance. She further stated that the presumptive colour test is the best method use in Fiji and it has recognised by UNODC scientific and technical notes as a test that maximise the probabilities of true result and minimised false possibilities.
    
66. Mr. Raveen Dutt is the sixth prosecution witness. He is also known as Robin. He was a taxi driver in 2013-2014, but now works as a fisherman. He came to know of Trevor sometimes in late November 2013, when Trevor hired his taxi to go to Nadi town. They became friends during that journey. On the next day Trevor asked him to come to Nadi town. He then asked Reveen to buy pseudo fed tablets from a pharmacy. He gave money to Raveen for the tablets. Subsequent to that Trevor gave him $ 20. He then went back to his home. The following day Trevor came again and asked his postal address and told that he will send him a gift for the charismas. Again Trevor gave him $ 50. Trevor went back to Australia and from there he called him and asked whether he received a parcel from him. Moreover, Trevor told him that he will send him $ 300, which he actually sent via Western Union on the following day.
    
67. Two weeks after the call of Trevor from Australia, Iowane called Raveen and told him that there is a parcel came from oversea for him at the Carpenter's Freight centre. Iowane asked him to come and get it. He went to the Carpenter's Freight centre at the Nadi International Airport, where he was accompanied by Iowane. They both knew each other. Iowane paid for custom duties and Praveen get the parcel cleared. He found that the parcel was addressed to Iwone's address, though it is under his name. The parcel contained three bottles of baby powder and toys. Two of the bottles were damages. The parcel was sent from Africa.
    
68. Having cleared the parcel, both of them went to Nadi town, where Iowane bought two bottles of power from a shop. They then went to a children park near the bus stand. Iowne removed the powder from the two bottles he bought. He then put the powder of the two damaged bottles into the two new bottles. They then went to the post office and Iowane then posted the three bottles of powders. Praveen said that he did not know to whom Iowane posted the three bottles of powder.
    
69. On the 31st of March 2014, Trevor called Raveen and told him that he is in Fiji. Both of them went to the home of Iowane in a taxi driven by Arveen Kumar. From there Trevor, Raveen and Iowane went to the airport, where Iowane went to Carpenter's Freight to pick a parcel, while Trevor and Raveen were waiting near the post office with the taxi. Iowane came back and said that he needs to get his TIN number, and custom office was busy, so he has to come back another day. They all then went to have lunch. After that, Iowne went to work and Raveen went back home. He did not hear or see Trevor or Iowane thereafter. However, on 3rd of April 2014, one Brain from Australia called him and asked where Trevor was.
    
70. In his cross examination, Raveen told that Trevor introduced Brain as his friend when Trevor called him from Australia. He has not met Brain. He was arrested on 3rd of April 2014 and kept in Namaka police station. He gave his statement at the Border Police station. He specifically stated that he was not threatened by the police to corporate with the investigation.
    
71. The seventh prosecution witness is Arveen Kumar. He is a taxi driver who took Praveen and Trevor, first to Iowane's house then to the airport. He said Praveen got into his taxi with a European man and asked him to take them to Votualevu. At there a Fijian man got into the taxi and he then took three of them to the Air Port. At the airport he waited with Raveen and the European Man while the Fijian man went and came back. He positively identified Trevor as the European man and Iowane as the Fijian man who got into his taxi on that day.
    
72. The eighth prosecution witness is Prem Krishna Goundar, who is also a taxi driver. He recalled that he dropped a European man and a Fijian man at the airport on the 1st of April 2014. When he reached to the Airport, he was asked to wait while the Fijian man went to Carpenter's freight centre. They waited for about 50 minutes. The European man was busy with his mobile phone and looked feeling down. He had another job to attend. Then the European man asked him to drop him back at Namaka since the Fijian man did not return. He positively identify both accused person as the two persons got into his taxi and went to the airport on the 1st of April 2014.
    
73. The next prosecution witness is Parveshni Lata. She is a friend of Trevor. She first met him sometimes in late October or early November 2013. Since then they became friends. After Trevor went back to Australia in December, they had been communicating though phone calls and text messages. He has sent her money on several occasions through Western Union and asked her to rent a flat. He has asked her address and told her that he will send her a gift, but she has to wait until he comes back to Fiji to open it. When she asked the reason for it, he has told her that only bad girls questions like that and do what he asked her to do.
    
74. Trevor asked her to receive him at the airport when he came to Fiji early morning on 13th of March 2014. She then accompanied him to his hotel and spent few hours. She met and spent time with him during the time of his stay in Fij. She received a call from Trevor in the evening of 1st of April 2014. She went and met him at Wishbone restaurant. He told her that he has a problem with custom and police. He told her about a parcel and Iowane. Trevor told her that the parcel was for him and Iowane was the middle man only to receive it. The parcel contains with tablets which are drugs. He has told her that he will sell them and can get ten houses for her from the proceeds of the sale.
    
75. He looked tense and down. He tried to call Iowane's wife but failed to get connected. He then asked Parveshni to go to the Hotel where Iowane was working and check him there. She went there and found that he was on his day off. She went back to the Wishbone restaurant and informed Trevor. He then managed to get connected with Iowane's wife's phone and gave Parveshni his mobile phone to talk to her and asked about Iowane. The wife told her that he has not returned home.
    
76. They then went back to his hotel and he wanted to watch TV news at 6 p/m. He wanted to find out that whether Iowane is on TV regarding this parcel of drugs. At that time, Police came and searched the hotel room and taken them to border police station.
77. During her cross examination, she denied that she was coached to give evidence by the Police. She further refused that she was threaten, forced or induced to give evidence like this. She admitted that there are few small differences in her statement given to the Police with her evidence given in the court house. However she explained the reasons for those differences. She denied that she used Trevor for money.
    
78. The tenth prosecution witness is Shivnesh Lal who is the receptionist at the Traveller's Apartment. He confirmed in his evidence that Trevor checked in to the hotel on 13th of March 2014 and stayed there as a guest until Police came and took him on 1st of April 2014. He positively identified Trevor as the guest who checked in on 13th of March and taken by Police on 1st of April 2014.
    
79. Cpl. Ema Rounds is the eleventh prosecution witness. She is the exhibit writer at the Border Police station. She recalled that she received a sealed FedEx carton containing with an unsealed FedEx envelop, a bottle of baby powder, and toys for safe keeping from Cpl. Savanaca on 1st of April 2014. The carton was accompanied with documents from custom. Upon checking them and documented in the exhibit registry, she took them to Namaka police station where she kept the package at the armoury of the police station. She stated that armoury is used as an exhibit room for drugs at the Namaka Police station, which is closed with a steel door and got air conditioning. Drugs are kept in one side. All the drugs inside were wrapped with brown papers. She confirmed that there were no marijuana or cannabis leaves or plants inside the armoury. Cpl Savanaca took the package back on 2nd of April 2014 in her presence, which was recorded in the exhibit registry. She again received the same package on 3rd of April after it was taken back from Koranivira research centre.
    
80. The next prosecution witness is D.Cpl Emosi Rotukana who is the interviewing officer of Iowane. He conducted the caution interview of Iowane at the Border Police station on the 2nd of April 2014. It was commenced at 10.25 a.m. on the 2nd of April 2014 and concluded at 15.25 hours on the 3rd of April 2014. It was conducted with a laptop in English language. It was recorded in question and answer format. Cpl Joshua was the witnessing officer.
    
81. D.C Emosi stated in his evidence that Iowane did not make any complain about anything prior to or during the recording of his caution interview. He was not assaulted, threatened, forced, induced or intimidated by him or any other officer prior to or during the caution interview. Iowane was given sufficient breaks. He was given all of his rights prior to and during the recording of the caution interview. At the conclusion of the interview, Iowane signed it, then D.C. Emosi and witnessing officer signed the interview respectively.
    
82. During his cross examination, he stated that he conducted the interview based on the result given by the custom officers. He escorted Iowane to Sambeto Police station in the night of 2nd of April for his rest and brought him back to the border police station on the following morning. He further stated that it is not illegal to purchase Pseudo Fad tablets over the counter from a pharmacy. He positively identified Iowane as the suspect he interviewed on 2nd and 3rd of April 2014.
    
83. Jone Sauqaqa is the thirteenth prosecution witness. He is the charging officer of Iowane. He charged him on 3rd of April 2014. He couldn't recall the time he commenced and conclude the charging. It was done with a computer in English Language. Iowane did not make any complaint about anything prior to and during the recording of the charging statement. He was not assaulted, forced, threatened, induced or intimidated by any police officer during the recording of his charging statement.
    
84. The fourteenth prosecution witness is Sgt Wame Rusaqoli. He was the station orderly at the Border Police Station on 1st of April 2014. He recalled that he received a package of FedEx box from Custom Officer Vasiti Toga in the evening of 1st of April 2014. He recorded it in the station diary and checked the items and documents handed over to him by the custom officer. He then handed over the package with the relevant documents to Investigation officer Cpl Cavanaca. He positively identified the package and the documents which he received on 1st of April 2014.
    
85. The last prosecution witness is D. Cpl. Savanaca Mara, who is the investigation officer. He stated in his evidence that he was informed by their manager about this detention on 1st of April 2014. Custom Officer Vasiti Toga formally lodged the report with the border police station and handed over the package with other custom documents to Sgt Wame, he then handed it over to him as he is the investigation officer. He formally arrested Iowane at that time. He then checked the items in the package. In his evidence he positively identified the items which he saw on that day inside the FedEx package. He then handed over the package to Ema who is the exhibit writer and taken the package to Namaka Police station for safe keeping. He stated that the package was kept with the other drugs which have been kept there for other investigations.
    
86. After keeping the package for safe keeping, he then went with other two police officers to the Travelers Apartment, where he conducted a search in the room where Trevor was staying. Subsequent to the search, he uplifted some items which he explained during his evidence. He made a search list and listed the items he ceased during the search. I.P. Vikash then formally arrested Trevor and Praveshni Lata and brought them to the Border Police Station.
    
87. On the 2nd of April 2014, D.C. Savanaca took the package to Koranivira research centre for the testing. He handed it over to Susana, the Technical Assistance at the research centre. On 3rd of April 2014 he was given back the package with the report of Principle Scientific Officer and her analysis form. The package was sealed with evidence note. He brought the package back to Border Police Station and handed in over to officer Ema for safe keeping. He handed over the reports to the Divisional Crime officer.
    
88. During his cross examination he admitted that he was aware that two person, Shivneel and Custom officer Sami had touched the powder and put it back to the bottle. However, he stated that he was not aware that the samples were taken out for the Ion test and poured it back to the bottle after the tests.
    
89. At the conclusion of the prosecution case, the two accused person were explained about their rights in defence. Both accused persons opted not to give evidence on oaths or call any other witnesses for the Defence. I must remind you as I mentioned before, the accused persons are not required to prove their innocence. It is their right to remain in silence.
    
90. I have summarised the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and reminded yourselves of all of them. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.
    
91. The prosecution presented evidence in the forms of direct, circumstances, documents and experts evidence to prove their case beyond reasonable doubt. The Prosecution presented evidence that Iowane and Trevor went to the airport together with Praveen to collect the parcel on 31st of March 2014, however they had to turn back due to the non-availability of Iowane's TIN letter. Again on 1st of April 2014, Iowane and Trevor went to the airport together to collect the parcel from Carpenter's Freight centre. Iowane went alone into the Carpenter's freight centre while Trevor was waiting outside in the taxi. He was present during the examination of the package by the custom officer Sami and Shivneel. The prosecution then presented evidence of testing of the powder by the custom officer with Ion machine and then by the Principle Scientific Officer at the Koranivira Research centre. Parveshni Lata stated in her evidence that Trevor told her that the parcel was for him and it contains drugs. He further told her that he will sell them. Furthermore, the prosecution presented evidence of the early behaviours and conducts of Iowane and Trevor through the evidence of Praveshni Lata and Praveen Dutt.
    
92. In view of the Defence of this case, it appears that the first and the second accused persons through their cross examination tried to challenge that integrity of samples which were tested. Specially, they extensively cross examined Shivneel, Custom officer Sami, Senior Scientific officer, and custom officer Vasiti Toga about the touching of the samples and the handling of the samples prior to and during the Ion machine test. Apart from that, the learned counsel of Trevor extensively cross examined Parveshni Lata about her relationship with Trevor and also the inconsistence nature of her evidence given in the court with her statement made to the Police on 2nd of April 2014. Furthermore, The learned counsel for Trevor tried to challenge the evidence of Principle Scientific officer when she was extensively cross examined about the sufficiency and the conclusiveness about her colour presumptive tests.
93. The prosecution presented evidence in the form of documents and they are marked and tendered as prosecution exhibits. Among other documents tendered as exhibits, the prosecution tendered a copy of the caution interview of Iowane and his charging statement. You are allowed to take into account the contents of the caution interview and the charging statement of Iowane, if you believe and satisfy that Iowane has given his statements in the caution interview and the charging statement voluntarily, free from any form of oppression and under fair and just circumstances.
    
94. If you accept the caution interview and/ or charging statement of Iowane, then there is a further direction I must give you. The caution interview of an accused are only admissible against the maker of the statements. What the first accused Iowane said in his caution statements and/ or charging statement are evidence against him only. If Iowane implicates his co-accused Trevor in his caution statements, that is not evidence against Trevor. When you come to consider the case against the second accused, you must disregard everything Iowane said in his caution statements against him. The first accused's caution statements can only be used against him.
    
95. You watched that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re- examined, were they evasive, in order to decide the credibility of the witness and the evidence. Moreover, you must consider the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
    
96. Upon consideration of all evidence, if you believe that all elements of the offence of importation of control chemical is proved beyond reasonable doubt, you can find the two accused persons are guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the two accused persons are not guilty.
    
97. Moreover, if you find that Iowane did not act in joint enterprise with Trevor, or have a reasonable doubt that he acted in joint enterprise with Trevor, to import these control chemicals as charged, but still if you satisfy beyond reasonable doubt that Trevor has imported these controlled chemicals, you can find first accused in not guilty and the second accused is guilty for this offence.
    
98. Likewise, if you find that Treovr did not act in joint enterprise with Iowane or have a reasonable doubt that he acted in joint enterprise with Iowane, to import these control chemicals as charge, but still if you satisfy beyond reasonable doubt that Iowane has imported these controlled chemicals, you can find first accused is guilty and the second accused is not guilty for this offence.
    
99. Madam and gentleman assessors, I now conclude my summing up. It is the time for you to retire and deliberate in order to form your individual opinions on the charge against the two accused person. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.

Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
16th of March 2015

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