State v Nandan - Judgment [2016] FJHC 126; HAC31.2012 (26 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 31 of 2012

STATE

V
1) ARNOLD VILASH NANDAN
2) VIMLESH CHAND

Counsel : Mr. S. Vodokisolomone & Ms. S. Tamanikayaroi for the State
Ms. L. Lagilevu and Mr. E. Radio for 1st Accused
Ms. S. Vaniqi for 2nd Accused
Dates of Hearing : 11th February – 19th February 2016
Date of Summing Up : 24th February 2016
Date of Judgment : 26th February 2016

JUDGMENT

1. The two accused are charged with the following offences;
   

FIRST COUNT

Statement of offence

Unlawful Possession of Illicit Drug: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004

Particulars of offence

ARNOLD VILASH NANDAN on the 13th day of December 2011 at Shalimar Street, Samabula, in the Central Division without lawful authority possessed 134.6 grams of Cannabis, an illicit drug.

SECOND COUNT

Statement of offence

Unlawful Possession of Illicit Drug: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004

Particulars of offence

ARNOLD VILASH NANDAN on the 13th day of December 2011 at Shalimar Street, Samabula, in the Central Division without lawful authority possessed 6434.9 grams of Cannabis, an illicit drug.

THIRD COUNT

Statement of offence

Unlawful Possession of Illicit Drug: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004

Particulars of offence

VIMLESH CHAND on the 13th day of December 2011 at Shalimar Street, Samabula, in the Central Division without lawful authority possessed 4.1 kilograms of Cannabis, an illicit drug.

2. The opinion of the assessors on the three counts were as follows;
   

1st Count – Not guilty (unanimous)

2nd Count – Guilty (two assessors); Not Guilty (one assessor)

3rd Count – Guilty (unanimous)

3. I direct myself in accordance with the summing up delivered to the assessors on 24th February 2016 and the evidence adduced during the trial.
   
4. In order to prove the offence of 'unlawful possession of illicit drugs' under section 5(a) of the Illicit Drugs Control Act 2004, the prosecution should prove the following elements beyond reasonable doubt;
   
   1. the accused
   2. without lawful authority
   100. was in possession
   4. of an illicit drug
      
5. There was no dispute regarding the identity of the accused and on the fact that the substance found in relation to the three counts was an illicit drug. The two accused did not take up the position that they had a lawful authority to possess drugs. Therefore the only contested element was 'possession'.
   
6. The first count is concerned with illicit drugs found in a bag inside a taxi; second count is concerned with drugs found in two twenty litre gallons and a bag inside a room and the third count is concerned with drugs found in two bags inside a taxi with the 2nd accused.
   
7. In the case of R v Lambert [2001] UKHL 37; [2001] 3 All ER 577, Lord Clyde said this;
   

"When the drug is in a container, it is sufficient for the prosecution to prove that the defendant had control of the container, that he knew of its existence and that there was something in it, and that the something was in fact the controlled drug which the prosecution alleges it to be. The prosecution does not require to prove that the accused knew that the thing was a controlled drug"

8. Section 32 of the Illicit Drugs Control Act 2004 provides that;
   

"Where in any prosecution under this Act it is proved that any illicit drug, controlled chemical or controlled equipment was on or in any premises, craft, vehicle or animal under the control of the accused, it shall be presumed, until the contrary is proved, that the accused was in possessionuch illicit drub>drug, coled chemichemical or controlled equipment."

The Cautioned Interviews

9. In this case the prosecution sought to rely on the cautioned interview statements of the two accused. Though both accused filed grounds of objection taking up the position that the statements were not made voluntarily, during the voir dire hearing both of them took up the position that they never made those statements. Since the issue whether a particular accused made a confession is a matter for the assessors decide first, a ruling on voluntariness was not made in respect of both interviews.
   
10. The position taken by the first accused in respect of the cautioned interview tendered as PE2 was that he placed his signature on the document where the interviewing officer told him to sign because he relied on an undertaking given by this interviewing officer to release him. He said he did not make the statement at PE2. He also said he was assaulted during the time he was questioned and he was drunk when the questioning commenced and not given time to rest on the 1st day of interview till he was locked in the cell in the evening. Interviewing Officer Manoa Kalouniviti said there was no oppression but he admitted that he did not give the accused time to sober up and that accused's lawyer was not allowed to see the accused.
    
11. Considering certain answers recorded in the cautioned interview which are consistent with the evidence given by the 1st accused, I am satisfied that the 1st accused did give the answers recorded in PE 2. However, considering all the evidence relevant to the recording of PE 2 and especially the admissions of the interviewing officer where he said in evidence that the accused was not given time to sober up knowing he was drunk, and that the lawyer was not allowed to see the 1st accused, I am not satisfied beyond reasonable doubt that the circumstances under which PE 2 was obtained were fair. Therefore, I hold that the prosecution failed to prove that cautioned interview of the 1st accused was made voluntarily and that PE 2 should be disregarded.
    
12. At this point I should note that I am not inclined to make a finding whether or not the Prosecution Witness Manoa Kalouniviti solicited and/ or received money from the 1st accused and/ or the 2nd witness for the 1st accused as making a finding on that issue was not essential to decide the main issues in this case and also because the said issue could be the subject matter of a future investigation and/ or prosecution.
    
13. Now I turn to the cautioned interview tendered as PE7 which is alleged to be the interview of the 2nd accused. PE 7 is not signed by the interviewing officer. Signatures of the 2nd accused and the witnessing officer only appear in respect of questions 2, 5, 8, 54 and 58. There is no signature at the bottom of every page and especially at the conclusion. At least there was no evidence that the 2nd accused had read over the interview at the conclusion. The interviewing officer said that the interview was conducted at CID Office on the 2nd day where the witnessing officer said that it was conducted at the Samabula Police Station on the 2nd day. Considering all the evidence pertaining to the recording of PE 7 and especially the aforementioned evidence, I am not satisfied that the prosecution has proved beyond reasonable doubt that PE 7 was made by the 2nd accused. Therefore I hold that PE 7 should be disregarded.
    

First Count

14. The issue to be decided in relation to the first count is whether the first accused had the possession of the illicit drugs found inside the pink bag (PE1) which was found inside the Taxi LT6407. The fact that the pink bag was found inside the Taxi LT6407 and the fact that the dried leaves found in the pink bag is cannabis sativa are not disputed. The dispute is regarding the issue whether or not the first accused was in possession of the drugs found inside the pink bag.
    
15. Therefore, in order to prove the first count, the prosecution should prove that the first accused had the custody of the pink bag or it was under his control and the first accused had the knowledge that the pink bag existed and he knew there is something in it.
    
16. Since this pink bag was found inside the Taxi LT 6407, another way of ascertaining whether the drugs were in the custody or under the control of the 1st accused, is to consider whether the first accused had the control of the Taxi LT 6407. If the prosecution is able to prove that LT 6407 was under the control of the first accused when the drugs were found, in view of the provisions of section 32 of the Illicit Drugs Control Act, it is presumed that the first accused was in possession of the drugs found therein until he proves on a balance of probability that he was not in possession of drugs.
    
17. It is an admitted fact that the 1st accused drove the said taxi on 13/12/2011. However, there was undisputed evidence that the said taxi was parked in the drive way near 67, Shalimar Street and it was not locked at the time the pink bag was found. 1st accused also said that one Rani and the iTaukei lady who was escorted out from 67, Shalimar Street that morning travelled in that taxi the night before and this iTaukei lady was sitting on the back seat of the taxi. It could be inferred without difficulty that this taxi remained unattended by the 1st accused and was unlocked at the time the drugs were discovered by the Police. Therefore, I am not satisfied beyond reasonable doubt that the taxi LT 6407 was under the control of the 1st accused when the drugs were found inside it.
    
18. The prosecution also failed to offer any other evidence to prove that the 1st accused knew that the pink bag existed.
    
19. Therefore, I agree with the unanimous opinion of the assessors that the 1st accused is not guilty of count one. It was open for them to reach that conclusion given the available evidence.
    

Second count

20. The issue to be decided in relation to the second count is whether the first accused had the possession of the illicit drugs found inside the two 20 litre yellow containers (PE 6A and PE 6B) and the yellow bag (PE 5) which were found in a room at 67, Shalimar Street, Samabula. The fact that PE 5, PE 6A and PE 6B were found inside the room in question and the fact that the said containers contained cannabis sativa are not disputed. The question is whether or not the first accused was in possession of those drugs.
    
21. I believe the evidence of Detective Corporal Filipe Puamau who said that the 1st accused was occupying the room at 67, Shalimar Street, Samabula where PE 5, PE 6A and PE 6B were recovered during the search on 13/12/2011. I also believe the evidence of second and third prosecution witnesses who said that the 1st accused had the key to the door of the room in which the drugs relating to the second count were found and that the 1st accused opened that door using the key and led the Police team inside that room. On the other hand, there were inconsistencies as I have noted in my summing up in relation to the evidence of the 1st accused and his 2nd witness who was his girlfriend with regard to the control 1st accused had over the premises in question. Though the 1st accused said that the iTaukei lady left the flat as she wanted to leave; his girlfriend and the Prosecution Witness Manoa Kalouniviti said that, that lady was escorted out to settle the dispute which started when the this girlfriend arrived at the flat that morning.
    
22. The evidence of the Prosecution Witness Kalouniviti that he escorted this iTaukei lady out of that flat because the 1st accused wanted her to leave, was unchallenged. All this evidence proposes that the 1st accused had some control over the premises where he could remain at that premises with his girlfriend and could demand another person who was there to leave the premises. At this point, this evidence is not considered to support the contention of the prosecution that the 1st accused was in control of the room in question. This evidence, together with the aforementioned inconsistencies is only considered to arrive at the conclusion that the 1st accused's version that he was a mere visitor in that flat is not capable of being believed. The evidence that the 1st accused had a tenancy agreement for the premises at Lot 11, Matanikorovatu, Makoi, 8 miles since June 2010 was also not sufficient to create a doubt in my mind with regard to the fact that the room in question was under his control at the time the drugs were found.
    
23. Accordingly, I am satisfied beyond reasonable doubt that the room in which PE 5, PE 6A and PE 6B were found was under the control of the 1st accused. Thus, in view of section 32 of the Illicit Drugs Control Act, the 1st accused is presumed to have the possession of the drugs found inside PE 5, PE 6A and PE 6B.
    
24. The next issue to be determined therefore, is whether the 1st accused was able to prove on a balance of probability that he was not in possession of the drugs found inside that room.
    
25. 1st accused's version was that he was not occupying the room in question and he was just a frequent visitor in that flat where he went there to meet with his friends who were staying at that flat and have a drink. He also said that the last person who occupied the room was a friend of one Rani but this person was not living there at the time the search was conducted. Considering the evidence placed before the court on behalf of the 1st accused especially in the light of the inconsistencies on this issue, I am not satisfied that the 1st accused was able to establish with credible evidence that it was likely that he did not have the custody or control over the drugs found inside that room or he did not know that the drugs existed or that he did not know that the drugs were in his custody or control.
    
26. In the circumstances, I agree with the majority opinion of the assessors that the 1st accused is guilty of the second count. It was open for the two assessors to reach that conclusion from the available evidence.
    

Third count

27. The issue to be decided in relation to the third count is whether the 2nd accused had the possession of the illicit drugs found inside the two black bags (PE 8A and PE 8B) which were found with him inside the taxi LT 7133. The fact that PE 8A and PE 8B were found inside the taxi 7133 and the fact that they contained cannabis sativa are not disputed. The issue is, whether or not the 2nd accused was in possession of those drugs.
    
28. The 2nd accused did not deny that he was inside the taxi LT 7133 or that he was holding onto the bags when the police found the bags (PE 8A and PE 8B). His version is that he was in that taxi at that time because the taxi driver offered him a lift and he was holding the bags because the police pulled him out from the front passenger seat where he was initially sitting, assaulted him and then made him sit on the back seat and hold the bags.
    
29. I believe the evidence of Detective Corporal Puamau and Detective Corporal Joeli Rokotuiwailevu who said that the 2nd accused was found inside the Taxi LT 7133 sitting on the back seat holding the small bag PE 8B and leaning onto the other bag PE 8A. I believe the evidence of Detective Corporal Puamau that PE 8A and PE 8B were locked at the time they were found and the keys were found inside a third bag which the 2nd accused had with him inside the same taxi. I note that evidence of the 4th Prosecution Witness, Mr. Imtiaz is consistent with the evidence of the aforementioned police witnesses with regard to the fact that the 2nd accused was sitting on the back seat and was trying to hide the bags. Thus I am satisfied beyond reasonable doubt that PE 8A and PE 8B were seized from the 2nd accused and he had the custody and the control of these bags. Therefore, there is no doubt that the 2nd accused knew that those bags existed. Considering the fact that he was trying to hide the bags; the fact that the two bags were locked and he had the keys with him, I am further satisfied beyond reasonable doubt that 2nd accused knew that something was inside the bags.
    
30. I observed the demeanour and deportment of the 2nd accused when he gave evidence. I am unable to believe the 2nd accused's version of events at the time PE 8A and PE 8B were seized by the police. Hence, there is no doubt in my mind that the 2nd accused had the possession of the two bags PE 8A and PE 8B.
    
31. Therefore, I agree with the unanimous opinion of the assessors that the 2nd accused is guilty of the third count. It was open for the assessors to reach that conclusion from the available evidence.
    
32. In the circumstances;
    
    1. I find the first accused not guilty of first count and acquit him accordingly from the first count;
       
    2. I find the first accused guilty of the second count and convict him as charged in the second count;
       
    100. I find the second accused guilty of the third count and convict him as charged in the third count.
         

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the 1st Accused : Lagilevu Law, Suva.

Solicitor for the 2nd Accused : Vaniqi Law, Suva.