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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 17 OF 2015
STATE
V
AKUILA KUBOUTAWA
Counsels : Ms. W. Elo for State
Mr. P. Lomaloma for Accused
Hearing : 16 and 17 November, 2016
Summing Up : 18 November, 2016
___________________________________________________________________________
SUMMING UP
Madam and Gentlemen Assessors
[1] After the hearing of evidence and closing submissions of the parties, It is now my duty to sum up the case to you. In doing so, I will direct you on matters of law which you must accept and act upon. You must accept whatever I say on the law. On the facts of this case however, which evidence to accept and which evidence you think is reliable, are matters for you to decide. If I express any opinion on the facts, or if I appear to do so, you may disregard my opinion if it is in conflict with yours.
[2] The Counsel for the defence and the counsel for the prosecution have already addressed you as to the conclusions they would like you to arrive at upon the evidence. Please consider these submissions carefully. But it is for you to decide which evidence is truthful and reliable and which evidence is not.
[3] In assessing whether the evidence is truthful and reliable you may consider whether the evidence of a particular witness is consistent and probable using your common-sense. Their manner of giving evidence, particularly during cross examination could also be considered. Whether the witness was confident, evasive or reluctant are some of the factors you could consider in this regard.
[4] It is important to remember that these considerations should be applied to all witnesses irrespective of the fact whether they were called by the prosecution or by the accused.
[5] Already you were told that it is the prosecution that must prove the charge against the accused. This responsibility remains throughout the trial upon the prosecution and never shifts to the accused. There is no obligation on the accused to prove his innocence. You are familiar with the term presumption of innocence. What it means is that an accused person is presumed to be innocent until he or she is proved guilty to the required level of proof.
[6] The standard of proof in a criminal case is one of proof beyond a reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused before you express an opinion that he is guilty. If you have any reasonable doubt as to whether the accused committed the offence charged, then it is your duty to express opinions that he is not guilty. It is only if you are satisfied that the prosecution has proved his guilt beyond a reasonable doubt, then only you must express your opinion that he is guilty.
[7] Your decision must be based only on the evidence which you have heard in this Court and upon nothing else. Your duty is to apply the law to the facts as revealed in evidence, in the course of this trial; without pre conceived notions about them and prejudices against any party.
[8] You will not be asked to give reasons for your opinion, and your opinion need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me, but they will carry great weight in my judgment.
[9] The accused is charged with the following offence;
Statement of Offence
UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to section 5 (a) of the Illicit Drugs Control Act 2004.
Particulars of Offence
TOMASI RABUKA and AKUILA KUBOUTAWA between the 1st day of January 2015 and the 21st day of March 2015 at Viani Village, Savusavu in the Northern Division, without lawful authority cultivated illicit drugs namely Cannabis Sativa weighing 10.9 kilograms.
[10] As you would have noted, the accused was charged with "unlawful cultivation of an illicit drug", contrary to section 5(a) of the Illicit Drugs Control Act 2004. For the accused to be found guilty of this offence, the prosecution must prove beyond a reasonable doubt, the following elements:
(i) the accused
(ii) knowingly
(iii) cultivated
(iv) an illicit drug
(v) without lawful authority
[11] Under the Illicit Drugs Control Act 2004, a Cannabis Sativa plant, whether fresh, dried or otherwise, is an "illicit drug". To prove this element of this offence, the prosecution must prove that what the accused was cultivating, at the material time, are plants of Cannabis Sativa, commonly known as marijuana.
[12] The prohibited act in the offence is "cultivation". Under Section 2 of the Illicit Drugs Control Act 2004 the word "cultivation" has been defined. According to this statutory definition of “cultivation” means; "planting, sowing, scattering the seed, growing, nurturing, tendering or harvesting". In order to prove this element, the prosecution must prove that the accused was “cultivating” an illicit drug as per the definition. This is the physical element of the offence.
[13] In addition to the above, the prosecution must also prove that, the accused knew that he was cultivating an illicit drug. This is the mental element or fault element of the offence.
[14] The prosecution must then prove that the accused had no lawful authority to cultivate an illicit drug. However, if the accused proves on the balance of probabilities, that he had lawful authority to cultivate the illicit drug, then you must find him not guilty to the charge. You must carefully consider the entirety of evidence, when arriving at conclusions on these issues.
[15] It is time we consider the evidence placed before us by the parties. We will consider evidence of the prosecution first. The prosecution solely relies on the admissions made by the accused during his caution interview to prove their allegation against him and record of his interview was tendered for your consideration.
[16] Prosecution called DC Saiyasi, who interviewed the accused and recorded his statement under caution, to give evidence. He said that he recorded the answers given by the accused accurately and the accused made them voluntarily. The accused was not under duress to make the statement and has placed his signature after reading its contents. The interview of the accused is conducted in iTaukei and the record was also made in iTaukei. This document is marked as P.E. No. 2A and its English translation is tendered as P.E. No. 2B.
[17] The other Police officers called by the prosecution, stated in their evidence the circumstances under which the accused was arrested. According to them, the Police decided to conduct a raid in the Viani village for illicit drugs on 21st March 2015. During this raid, the houses of the accused and the other co-accused were searched. No illicit drug was found from the house of the accused but the accused was arrested. The co-accused showed the Police team where his farm was located. The accused remained in the Police vehicle with two others. He did not go with co-accused to show the farm. After about 2 hours the Police party returned with plants of marijuana and thereafter proceeded to Savusavu Police Station where the accused was interviewed.
[18] The plants uprooted from the farm, were then sent to Miliana Werebauinona for identification and analysis. She is the Principal Scientific Officer from the Forensic Chemistry Unit of the Fiji Police Force and is a qualified scientist, in the analysis of illicit drugs and other chemicals.
[19] She confirmed that the 147 plants were of the height ranging from 15 cm to 240 cm, with a total weight of 10.9 Kg, after removing its roots. Extracts taken from these plants were tested with two chemical tests and based on their results; she certified that the 147 plants as Cannabis Sativa plants. Her report is tendered marked as D.E. No. 1A and 1B.
[20] You then heard me explaining several options to the accused. I explained to him that he could give evidence and call witnesses on his behalf. He could also address Court. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times. But he opted to offer evidence under oath and also to call a witness.
[21] The accused said in his evidence that after his arrest he was taken to the Police vehicle and when the co-accused was also brought in, they proceeded to the place where the farm of the co-accused was. A Police party along with the co-accused went up, while he remained in the vehicle. Then he was later interviewed at Savusavu Police Station by Saiyasi.
[22] In relation to his caution interview, the accused said that Saiyasi used Bauan dialect and wrote down his answers as he replied to the question simultaneously. He alleged that Saiyasi never read the statement back to him and he also did not read it. Referring to his answer in Q 34 in P.E. No. 2B, the accused said that he did not answer as “Tomasi Rabuka took me to the said farm to identify which ones of them are matured and also for cleaning the farm”. He claims what he in fact told the officer in answer was that Tomasi was planning to take him to the farm but before his visit the Police raided them.
[23] The accused called Apisalome, a former Court Officer to give evidence on his behalf. This witness, having said that he had translated iTaukei into English for over 11 years during his career, also claimed that he is trilingual. He provided his own translations on certain questions and answers that are recorded in iTaukei in P.E. No. 2A. According to him answer to Q 21 when translated into English should read as “I accompanied Police officers go and see Tomasi Rabuka at his house and we went together to Tomasi Rabuka’s farm”. He claims words “we led” are not recorded in the iTaukei answer.
[24] He also disagreed with the translation of the answer to Q 22. According to him it should read as “When we reached his farm he pointed to Police officers the place where marijuana was planted” and in P.E. No. 2A, instead of “he”, “the word “we” had been used.
[25] In Q23 the answer is “The Police officers then uprooted 147 green plants of marijuana and we proceeded to the village” and according to this witness it should be “Police Station” and not “village”. He agreed with the translation of the answer in Q 32 since it’s the same meaning. In Q33 “Akuila Kuboutawa’s marijuana farm” is written in P.E. No. 2A but in the English translation it is recorded as “said marijuana farm” by dropping the accused’s name out.
[26] In relation to answer to Q 34 in P.E. No. 2B, the witness said his translation is “Tomasi Rabuka took me to see and to show him the matured ones and how it is cleaned” whereas it had been translated by Saiyasi as “Tomasi Rabuka took me to the said farm to identify which ones of them are matured and also for cleaning the farm.” According to this witness the difference in the two translations is to show how the farm is cleaned and not for cleaning the farm.
[27] Having reminded you of the evidence, we could now consider them. As already noted the prosecution solely relies upon the admissions in the caution interview of the accused. I will now direct you how to consider the item of evidence, led and marked as P.E. Nos. 2A and 2B, by the prosecution.
[28] Any admission made by an accused in his caution statement is admissible and sufficient evidence to prove his guilt to a charge. However, there are some applicable principles of law in relation to this evidence. The prosecution must prove that the caution statement was made by the accused voluntarily. The prosecution must establish this fact beyond a reasonable doubt.
[29] Whether the accused gave his statements voluntarily and whether the statement set out a sequence of events in relation to cultivation of illicit drug on which you can rely and accept, is a matter for you. Of course if you believe that the interview is false, that it was a fabrication as alleged by the accused, you may think that you cannot put any weight on it. However, if you believe that the accused gave his statements voluntarily and it is not a fabrication, you may think that it contain evidence which will assist you in deciding on his guilt or otherwise. However, the question of what weight you can put on the admissions is a matter of fact for you to decide.
[30] The prosecution however says that the interview was not obtained under pressure or inducement and that the accused told the police the truth in it.
[31] You have heard from the police officer who interviewed the accused; that there were no threats or any intimidation of any kind by anyone on the accused and his statement was freely and voluntarily given and that he correctly recorded what the accused said. There is no challenge by the accused that he made the statement involuntarily but alleges that it contains some answers he did not give and therefore, parts of it are fabrications.
[32] The accused invited your attention to mistakes, errors in translation, insertion of certain words and deletion of certain other words in the English translation of the caution interview. He also wants you to consider the improbabilities in some of the answers. According to him, these were the result of fabrication.
[33] In reply the prosecution wants you to consider that Aiyasi is not an expert in languages and he has translated the caution interview statement to the best of his ability and knowledge and he had no reason to fabricate evidence against the accused.
[34] It is for you to assess its weight and value, having considered these claims by the accused and prosecution. Remember that police officers are experienced witnesses who are used to giving evidence. I do not say this because I express any opinion about their credibility, but where a confession is the primary evidence against an accused such direction is usually given.
[35] You should take into account all the circumstances in which the statements were made in assessing its value. The prosecution say the accused person has made a confession to the police. It has been said that people don’t admit committing an offence unless it is true. Of course people are known to make false confessions too. Before you can act on the confession of the accused you have to be satisfied beyond a reasonable doubt of three things:
i. that the accused did make the confession,
ii. that the confession is true,
[36] If you decide that the prosecution has failed to prove any of these or some of these factors, beyond a reasonable doubt; then you must totally disregard the caution interview statement of the accused. As there is no other evidence against the accused, then you must find him not guilty to the charge.
[37] But if you decide the prosecution has established these factors to the required level of proof against the accused in relation to his caution interview statement, then you will proceed to consider whether it proves the elements of the offence beyond a reasonable doubt.
[38] There is no challenge that the plants are Cannabis Sativa or marijuana and it is an illicit drug. There is no dispute that the accused had no lawful authority to cultivate them. His identity is also not in dispute. In the circumstances, your responsibility is narrowed down to consider whether the prosecution has proved; that the accused knowingly “cultivated” these plants.
[39] As already noted the word “cultivated” also includes “planting, sowing, scattering the seed, growing, nurturing, tendering or harvesting” as per the legal definition in the Illicit Drugs Control Act 2004.
[40] In order to prove this element, the prosecution relies on the answer given by the accused to Q 34 (Q33 in iTaukei original marked as P.E. No. 2A). The English translation by Saiyasi of his answer reads “Tomasi Rabuka took me to the said farm to identify which ones of them are matured and also for cleaning the farm.” In addition, the witness of the accused also provided another translation to the effect “Tomasi Rabuka took me to see and to show him the matured ones and how it is cleaned.” According to this witness the difference in the two translations is to show how the farm is cleaned and not for cleaning the farm.
[41] There is evidence that Tomasi Rabuka, the co-accused named in the information with the accused, has already pleaded guilty to the charge and serving his 9 year sentence. Then why is the prosecution maintained this charge against the accused? That is because the prosecution claims that; in addition to the co-accused, the accused is also responsible of the cultivation of an illicit drug on the basis of the legal principle known as joint enterprise.
[42] I shall now direct you on this legal principle. These are directions of the applicable law and you have to take these directions into consideration.
[43] When an offence is committed, the person who actually does the act which constitutes the offence is not the only person who is deemed to have committed the offence. Anyone who does an act for the purpose of helping another person to commit the offence is also deemed to be guilty of the offence. Therefore to give you an example, a person who stands at the door of a house which is broken into, to warn those who have gone in, of anyone who might disturb the burglars, is as guilty of burglary as those who broke in, even if the watchman remained outside, and never entered the house at all. He is guilty because he has aided and abetted the burglars.
[44] Furthermore, the law also says that when two or more persons form a common intention to do something unlawful together, and in the prosecution of that unlawful purpose, an offence is committed which is a probable consequence of the doing of the unlawful act, then, each of them is deemed to have committed the offence.
[45] The accused wants you to consider that even if you accept the answer to Q 34 of the English translation as an admission, he only provided “advice” and therefore has not violated law. You will recall the accused in his evidence said that his cousin brother Tomasi Rabuka sought his assistance to identify the mature plants and also to clean the farm, but before they actually went there, the Police raid took place. With this the accused wants you to consider that this was to be a future event, which never took place. If you accept the caution interview, both translations agree that Tomasi Rabuka “took” the accused to his farm, an event that had already taken place.
[46] Then in addition, the prosecution must prove that the accused knew what he cultivated is prohibited by law. In answer to Question 47 he admitted he knew what it against the law to cultivate marijuana. In his evidence he said that mature plants of marijuana would have yellow leaves. Consider these evidence and decide whether prosecution has proved this mental element as well.
[47] It is your responsibility to decide these conflicting claims by the parties, and if you accept the answer to Q 34, you will then consider whether the acts of “cleaning the farm” and also showing the mature plants to Tomasi Rabuka, could be accepted as “tendering or nurturing” the marijuana farm. If you decide it is so; and he knew them to be marijuana, then the accused may be find guilty to the count of cultivation of an illicit drug. If you decide that it is not so, then you must find the accused not guilty to the charge.
[48] Any re directions the parties may request?
[49] Madam and Gentlemen assessors, this concludes my summing up of law and evidence. Now you may retire and deliberate together and may form your individual opinions on charge against the accused. When you have reached your separate opinions the charge you will come back to Court, and then you will be asked to state your opinion.
[50] I thank you for your patient hearing.
ACHALA WENGAPPULI
JUDGE
At Labasa
18 November, 2016
Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of P. Lomaloma Esq., Barrister & Solicitor, Labasa
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