State v Nandan - Summing Up [2016] FJHC 139; HAC31.2012 (24 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

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1. I will now explain to you the legal principals you should apply in this case. You must accept my directions on law and must follow them when you analyze the facts of this case in order to arrive at your opinion.
   
2. During this exercise, I may refer to certain evidence wherever necessary while explaining the legal directions and I will also be providing you a summary of the evidence. However, being the judges of fact, you and you alone should decide what weight you give to the evidence. Therefore, if I express my opinion on the facts of this case or if I appear to do so, you are at liberty to either accept or disregard such opinion. Do not accept my views on the facts of this case unless you agree with them.
3. When I say 'evidence', that includes what the witnesses said from the witness box, the admitted facts and the exhibits tendered.
   
4. Please remember that this summing up is not evidence. That said, in this summing up, I will not be reproducing the entire evidence led in this case. If I do not refer to a certain portion of evidence which you consider as important, you should still consider that evidence and give it such weight as you may think fit.
   
5. The arguments, questions and comments by the counsel for the prosecution and counsel for the defence are not evidence. A suggestion made by a counsel during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening addresses and you heard the closing addresses. Those arguments and comments made by counsel in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence if you wish to do so, but you are not bound to accept them.
   
6. You must not consider anything you have heard or read about this case outside this courtroom before or during the trial. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box, the admitted facts and the exhibits tendered. You must approach the evidence with detachment and objectivity and should not be guided by emotion.
   
7. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
8. You should bear in mind that witnesses may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
9. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence or whether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that a previous statement made out of court is not evidence except for those parts that are put to a witness as inconsistent versions. As I have already told you, evidence is only what came out from the witness box.
   
10. Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
11. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such a witness as a reliable witness notwithstanding the inconsistency.
    
12. You should bear in mind that you cannot consider anything said by a person other than a witness who gave evidence in this case in deciding the issues before you.
    
13. In this case, the accused persons have admitted certain facts relating to this case and you have those facts before you. You should consider those admitted facts as proven beyond reasonable doubt.
    
14. Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. Then apply the relevant law as per my directions on law to those facts and inferences, to form your opinion as to whether an accused is guilty or not guilty of a particular charge.
    
15. You are not required to decide every point which has been raised by counsel in this case. You should only deal with the offences the accused persons are charged with and matters that will enable you to decide whether or not each charge has been proved.
    
16. When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that an accused is guilty and an accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.
    
17. The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of an accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of an accused person's guilt.
    
18. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of an offence an accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. However, if you find that the prosecution has proved all the elements of a particular offence beyond reasonable doubt, you should find the accused guilty of that offence.
    
19. The first accused in this case is charged with two counts. You should bear in mind that you should consider each count separately. You must not assume that the 1st accused is guilty of the other count just because you find him guilty of one count. Further, there are two accused persons in this case. You should remember to consider the evidence against each accused separately. In the event you find one accused guilty of a particular count, you must not simply assume that the other accused must be guilty as well. It is necessary that you consider whether the prosecution has proved each count beyond reasonable doubt separately.
    
20. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether an accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my final decision.
    
21. Let us now look at the Information. DPP has charged the accused for 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.

22. You will find that both accused are charged with the same offence which is 'unlawful possession of illicit drugs' contrary to section 5(a) of the Illicit Drugs Control Act.
    
23. The first accused is charged with being in possession of 134.6 grams of Cannabis in the first count. This charge is in relation to the drugs that were found in the Taxi Registration No. LT 6407. In Count two, the 1st accused is charged with being in possession of 6434.9 grams of Cannabis. This is in relation to the drugs that were found inside the flat at 67, Shalimar Street.
    
24. The second accused is charged with being in possession of 4.1 kilograms of Cannabis in the third count.
    
25. The following facts are admitted in this case. Therefore, you should consider the following as proven beyond reasonable doubt.
    

That the police had found dried leaves packed in a yellow bag at Lot 67 Shalimar Street on the 13th day of December 2011.

That the police had found two 20 litre yellow containers packed with dried leaves at Lot 67 Shalimar Street on the 13th day of December 2011.

That a pink shopping bag containing dried leaves were found at the back seat of taxi LT 6407 parked at 67 Shalimar Street on the 13 day of December 2011.

That the two black bags were seized by police from the back seat of Taxi registration number LT 7133 parked near 67 Shalimar Street on the 13th day of December 2011.

There is no dispute about the identity of the defendants or that they were arrested by police or were questioned by police as suspects in this case.

It is not disputed that police had to attend to a report or a complaint about a domestic disturbance at 67 Shalimar Street, Samabula on 13th December 2011 in the morning at around 6.30am.

Arnold Vilash Nandan (1st Defendant) is a taxi driver and drove a taxi registration number LT 6407 on 13 December 2011.

That the 1st defendant was at a flat at 67 Shalimar Street, Samabula on 13th of December 2011 when he was arrested.

It is not disputed that police searched a flat at 67 Shalimar Street, Samabula on 13th December 2011.

Vimlesh Chand (2nd defendant) was arrested by police at 67 Shalimar Street, Samabula on the 13th of December 2011 at around 8am.

It is not disputed that dried leaves seized by police during the course of investigations into the case were submitted by police to the government analyst Miliakere Nawaikula on the 13th December 2011 for analysis.

There is no dispute or objection by any party to having the government analyst report rendered by Miliakere Nawaikula in relation to the case against the defendants, tendered by consent as prosecution exhibit.

26. To prove the offence of unlawful possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act, the following elements must be proved beyond reasonable doubt;
    
    1. the accused
    2. without lawful authority
    100. was in possession
    4. of an illicit drug
       
27. The first element of the offence is concerned with the identity of the person who committed the offence. In this case, the identity of the accused persons in relation to the three counts is not disputed. The two accused persons in this case do not take up the position that they had lawful authority to possess drugs. In view of the admitted facts (k) and (l) there is no dispute that the substance found by the police in relation to the three counts is an illicit drug namely Indian hemp or Cannabis sativa. Therefore, the only disputed element in this case is 'possession'.
    
28. The element relating to possession has two sub-elements. There is a physical element and a mental element. The physical element is whether the thing in question was in the custody or was subject to the control of the accused. The mental element is the knowledge of the accused that the thing existed and it was in his possession.
    
29. Simply put, in order to prove 'possession', the prosecution has to prove beyond reasonable doubt that the thing in question was in the custody of the accused or was under the control of the accused and, that the accused had the knowledge that the thing existed and it was in his custody or subject to his control as the case may be.
    
30. When it comes to drugs found inside a container such as a bag, in order to establish possession, the prosecution should prove beyond reasonable doubt that;
    
    1. the accused had the custody of that container or it was subject to his/her control; and
    2. the accused had the knowledge that the container exists; and
    100. that the accused knew that there was something in it.
         
31. The law also says that, if it is proved that an illicit drug was on or in any premises or vehicle under the control of the accused, it shall be presumed, until the contrary is proved, that the accused was in possession of that illicit drug.
    
32. Therefore, considering the nature of this case, there are two ways to prove possession. That is, either proving that an accused was in control of the vehicle or the premises in which the drugs are found or proving that the container in which the drugs were found was in the custody or under the control of an accused with the knowledge of its existence and knowledge that something is inside it. Now I will further explain this in relation to the three counts.
    
33. The drugs in relation to count one were found inside a pink bag which was in the vehicle, LT 6407 [admitted fact (c)]. With regard to this count, first you should consider whether the taxi, LT 6401 was under the control of the 1st accused during the time material to this case. If this is proven beyond reasonable doubt by the prosecution, then it is presumed that the 1st accused was in possession of the drugs referred to in the first count until the 1st accused proves to you that he was not in possession of the drugs.
    
34. In the event you are not satisfied beyond reasonable doubt that the 1st accused was in control of Taxi LT 6407, then you should consider whether it is proven beyond reasonable doubt that;
    
    1. The pink bag (PE1) was in the custody or under the control of the 1st accused; and
    2. 1st accused knew that the pink bag existed; and
    100. 1st accused knew that there was something inside the pink bag.
         
35. With regard to the second count, first you should consider whether the room in which the drugs were found was under the control of the first accused. Again, if it is proven beyond reasonable doubt that the room in which the drugs were found was under the control of the 1st accused, then it is presumed that 1st accused was in possession of the drugs referred to in the second count until the 1st accused proves that he was not in possession of the drugs.
    
36. In the event you are not satisfied beyond reasonable doubt that the 1st accused was in control of the room where the drugs referred to in the second count was found, then you should consider whether it is proven beyond reasonable doubt that;
    
    1. The two 20 litre yellow containers (PE 6A & PE 6B) and the yellow bag (PE 5) were in the custody or under the control of the 1st accused; and
    2. 1st accused knew that the two 20 litre yellow containers and the yellow bag existed; and
    100. 1st accused knew that there was something inside the two 20 litre yellow containers and the yellow bag
         
37. In the third count the prosecution alleges that the two bags containing the drugs were found with the 2nd accused who was inside the taxi registration no. LT 7133 when the police seized the items. First you should consider whether the taxi LT 7133 was under the control of the 1st accused during the time material to this case. If this is proven beyond reasonable doubt by the prosecution, then it is presumed that the 2nd accused was in possession of the drugs referred to in the third count until the 2nd accused proves to you that he was not in possession of the drugs.
    
38. In the event you are not satisfied beyond reasonable doubt that the 2nd accused was in control of Taxi LT 7133, then you should consider whether it is proven beyond reasonable doubt that;
    
    1. The black bags (PE 8A & PE 8B) were in the custody or under the control of the 2nd accused; and
    2. 2nd accused knew that the two black bags existed; and
    100. 2nd accused knew that there was something inside the two black bags.
         
39. I just mentioned to you about the two accused having to prove that they were not in possession of the drugs. This is a situation where the law provides an exception to the general rule that always the prosecution should prove a case and the burden of proof never shifts to the accused. However, you should bear in mind that an accused is required to prove something only on a balance of probability.
    
40. So, how does an accused prove that he was not in possession of the drugs? An accused can on a balance of probability show that the drugs were not in his custody and they were not subject to his control, or that he did not have the knowledge that the drugs existed or he did not have the knowledge that the drugs were in his custody and his control.
    

(a) Cautioned Interview Statements

41. You have before you, the cautioned interviews PE2 and PE7. These documents according to the prosecution are the notes of the interview conducted by the police with the 1st accused and the 2nd accused respectively. Prosecution says that the said interview notes contain admissions and that those admissions are true. Both the accused says that they never made those statements.
    
42. In dealing with these alleged cautioned interview statements tendered as PE2 and PE7, you must basically decide the following in respect of each statement separately;
    
    1. Did the relevant accused make the statement in question? If you are not sure that he made it, the matter ends there. You should disregard that particular cautioned interview statement.
       
    2. If you are sure that the accused made it, then you should consider whether the statement was made voluntarily. You have to be sure that the statement was not obtained with oppression and it was not obtained in an unfair manner. If you are not sure that the statement was made voluntarily, then you should disregard it.
       
    100. If you are satisfied that the statement was made voluntarily, then you should decide whether you are sure that the statement is true. Which means that you should consider the cautioned interview statement as you would consider the evidence given by a witness. You may accept the whole statement to be true or a part of it is true or you may consider the whole statement is not true. You may rely only on what you would consider to be true.
         

Case for the Prosecution

43. Former Police Officer Manoa Kalouniviti gave evidence for the prosecution first. On 13/12/2011, around 0700hrs, he received a report regarding causing trouble at Shalimar Street. He attended to the report with the driver Special Constable Jone. They went to the 1st accused's flat at 67, Shalimar Street where an Indian lady opened the door and they went to the room inside the house where the 1st accused was lying down on a bed. There was an iTaukei lady inside that room. He got to know that the 1st accused had brought the iTaukei lady the previous night and they have slept there and the dispute arose when the 1st accused's girlfriend came there that morning. According to him, the 1st accused then told the iTaukei lady to leave and he escorted the iTaukei lady out. On their way, the lady opened the taxi registration number LT6407 which was parked on the driveway to get her shoes. Then he saw the pink bag tendered as PE1 with dried leaves in it. He took PE1 to the 1st accused and asked him about the dried leaves. 1st accused denied any knowledge about the bag. Then he took 1st accused to the Samabula police station. He interviewed 1st accused under caution in the conference room at the police station. He said PE2 is the cautioned interview statement of the 1st accused.
    
44. The interview was suspended at 0815hrs to conduct a search at 1st accused's flat at 67 Shalimar Street. He participated in the search with the 1st accused, Corporal Basilio and Corporal Manu. He said when they arrived at the flat, the 1st accused opened the door, and then the 1st accused also opened the door of the room they searched. During the search, they found one yellow shopping bag containing dried leaves under the 1st accused's bed. They also found two yellow twenty litre gallons, containing dried leaves. Then they went to CID to photograph the dried leaves and thereafter back to Samabula police station where the cautioned interview of the 1st accused recommenced.
    
45. On the 14th December 2011, the interview recommenced after receiving the reports from the government analyst tendered in Court as PE 3 and PE 4; and the interview was concluded around 1200hrs on the same day. He said he did not threaten 1st accused at any point during the interview and the 1st accused did not make any complaint to him during the interview. He also said that the visitors were not allowed to see the 1st accused because he, the 1st accused was in custody.
    
46. During cross examination, he said the 1st accused and the iTaukei lady smelt of liquor when they were at the room. He said that the 1st accused was renting the flat but he had not seen a tenancy agreement. He said when he first saw the pink bag it was opened. The iTaukei lady was also taken to the police station but a statement was not obtained from her. He said he did not allow the 1st accused to sober up before commencing the interview. He denied the allegation that he promised to release the 1st accused if he is given money and the allegation that he received $400 from Rashika, the 1st accused's girlfriend. He also denied the allegation that he assaulted the 1st accused at his flat for 1st accused to say that 1st accused own the drugs. He said the police team only checked the bedroom, the 1st accused led them into and they did not go inside any other rooms. He denied the suggestion that 1st accused was assaulted at CID. He said the two twenty litre gallons found in 1st accused's room could not be seen when the 1st accused opened the room door as they were behind the door.
    
47. He said the 1st accused was taken to CID Headquarters on 14/12/11 for compiling the documents with Corporal Filipe and when they came back, the 1st accused wanted to withdraw some money for his girlfriend. He said he took the 1st accused to Westpac Nabua with Corporal Filipe. He also said that it is not proper police procedure to do so. He denied the suggestion that the same taxi driver brought them back to the Samabula police station from Westpac. He also denied that he received $500 from the 1st accused after he withdrew that amount from the Westpac Nabua branch. He admitted that 1st accused's girlfriend paid the taxi fare for that trip. He also admitted that lawyer Henry Rabuku was not allowed to see the 1st accused. He denied the suggestion that he told the 1st accused not to worry about the answers he is recording because he had been paid $400 at the commencement of the cautioned interview, and he denied that the 1st accused signed the interview because the 1st accused trusted his assurance that he will release the 1st accused.
    
48. Next witness was D/Cpl Basilio Vevewa. He has served the police for 10 years and in 2011, he was attached to the Drugs Unit. On 13/12/2011, he participated in conducting a search at 1st accused's room at Shalimar Street. He, D/C Manueli, PC Manoa and the 1st accused were there when the search was conducted. He said the 1st accused led them inside the house and then opened a room door with his keys and took them inside. They found a yellow bag with dried leaves underneath the bed in that room. The bag was tendered as PE5. They also found two yellow 20 litre drums filled with dried leaves tendered as PE 6A and PE 6B. They were found behind the door to that room. They took the 1st accused and the items found to the CID Headquarters. He said he did not see the 1st accused being assaulted at CID Headquarters, and 1st accused did not make any complain to him.
    
49. During the cross examination by the counsel for the 1st accused, he said he did not see a tenancy agreement regarding the flat he searched. He confirmed that the 1st accused opened the room door with the key that 1st accused had in his possession.
    
50. PC Manueli Yavayawa said he was serving in the Drugs Unit in 2011. He, Constable Manoa, Corporal Basilio and the 1st accused went for a search at Shalimar Street on 13/12/2011. He said the 1st accused led them inside the 1st accused's bedroom by opening the room door with the key. During the search Corporal Basilio found a bag with dried leaves underneath the bed. Then they also found two twenty litre yellow gallons filled with dried leaves. Then they took him and the seized items to the CID Headquarters.
    
51. During the cross examination by the counsel for the 1st accused, he said that he believed that the 1st accused lived in the house searched at Shalimar Street because 1st accused was arrested and items were seized from that house. He said, the search team only concentrated on the 1st accused's room. When it was suggested to him that the 1st accused could not have had a key because at the time the 1st accused was being interviewed, he said that the properties of a suspect have to be surrendered only before going into the cell and at the time of the search, 1st accused had the key to his bedroom. He confirmed that the bedroom was locked. He denied the allegation that the police assaulted the 1st accused to admit having knowledge of the drugs. He said at the CID the 1st accused and the 2nd accused were kept in the same room. He denied the suggestion that the 1st accused was assaulted at the CID.
    
52. During the cross examination on behalf of the 2nd accused, he denied the suggestion that the purpose of taking 2nd accused to CID instead of Samabula police station was to hide the accused from his lawyers. He said the accused was taken to CID because the Samabula police station is crowded and there was more space available at CID. He said the two accused persons were not assaulted at CID Headquarters. He denied the suggestion that the police threatened and swore at the 2nd accused.
    
53. Fourth prosecution witness was Imtiaz Ali Buksh who is a Financial and Administration Manager. He was temporarily driving the taxi, LT7133 in December 2011. He said on 13/12/2011, he went to Shalimar Street where the 1st accused's taxi was parked, and picked up two bags which a passenger had forgotten in 1st accused's taxi on the request made by 1st accused's girlfriend Rashika by phone around 7.45am. He was given the bags by an iTaukei man when he went to the bottom flat at Shalimar Street and then he went to No.15 Gaji Street. At No. 15 Gaji Street he honked and Vimlesh Chand, the 2nd accused came out. He said both bags were locked. When he asked the 2nd accused whether the bags belong to him, 2nd accused said yes. There he agreed to do another run to Nakasi with the 2nd accused. On their way to Nakasi, 2nd accused told him he had forgotten two twenty litre gallons and then they went to Shalimar Street to pick them. At Shalimar Street he was approached by a police officer. When he told this police officer about the bags he picked up earlier and that 2nd accused is in the taxi with the bags, he was escorted by the police officer to the taxi. When they came to the taxi he saw that the 2nd accused is not in the front seat but was at the back seat, trying to hide the bags. When the police officer asked the 2nd accused to open the bags, 2nd accused took the keys from a small bag brought from Gaji Street and opened the bags.
    
54. During cross examination on behalf of the 2nd accused he denied the suggestion that 2nd accused got into the taxi only because he offered him a lift. He said upon arriving at Shalimar Street, he got down to collect the yellow gallons on the request of 2nd accused. He denied the suggestion that he has something to do with the two bags found in the taxi and the yellow drums and that he is putting the blame on the 2nd accused.
    
55. The next witness was DC 3331 Joeli Rokotuiwailevu. On 13/12/2011 while he stood guard near the main road near Lot 67, Shalimar Street, he saw the taxi no. LT7133 arrive and park opposite lot 67. The taxi driver came out of the taxi and went to the suspect's house. He was told by Corporal Filipe to remove the key from the taxi. First he saw that the 2nd accused was sitting on the front passenger seat. When Corporal Filipe opened the back door after he removed the key, he saw that the 2nd accused was sitting at the back seat. He said Corporal Filipe arrested the 2nd accused and thereafter was taken to CID Headquarters. He said he did not see any officer assault the 2nd accused in the taxi or at CID. He said 2nd accused did not make any complaint to him or to any other officer regarding an assault.
    
56. During the cross examination on behalf of the 2nd accused, he denied the suggestion that the police forced the 2nd accused to sit at the back seat and to put his hand on the black bag. In re-examination he said he saw the 2nd accused holding onto a bag and was lying on the other bag.
    
57. Former Police Officer Sailasa Turagalulu took the stand next. He said he was with the Drugs Unit at CID/HQ in 2011. He was the interviewing officer of the 2nd accused in this case and the interview was conducted at the CID office at Toorak. He said PC Lasarusa was the witnessing officer. The cautioned interview statement of the 2nd accused was tendered as PE 7. He said the interview was conducted in English. The accused's right to counsel was communicated to him but the 2nd accused did not want to have a lawyer at that time. He said he overlooked to have the 2nd accused sign at the conclusion of the interview. This was the first cautioned interview he conducted.
    
58. He said the 2nd accused did not make any complaint to him. He did not see any officer assaulting the 2nd accused at CID. He said on the 2nd day, the interview was conducted at CID. He said he did not fabricate the answers in the cautioned interview and he did not forge the 2nd accused's signature. He said he did not force the 2nd accused to give the answers.
    
59. During the cross examination on behalf of the 2nd accuse, he admitted that there is no signature in the space provided for the signatures at the bottom of the pages from page 2 to 10 of the cautioned interview. He confirmed that the cautioned interview was conducted at the CID on the 2nd day.
    
60. PC 2819 Lasarusa Batikalavo gave evidence next. He was the witnessing officer of the 2nd accused's cautioned interview. He said PE 7 is the 2nd accused's cautioned interview statement. He said 2nd accused was not assaulted during the recording of the interview. The police officers did not swear at the 2nd accused and did not use threat or force against the 2nd accused. He said the interview was conducted at the Samabula police station on the 2nd day. He also said that he did not forge the signature of the 2nd accused.
    
61. During the cross examination by the counsel for the 2nd accused he confirmed that the cautioned interview was held at Samabula police station on the 2nd day. He denied the suggestion that he forged the 2nd accused's signature.
    
62. Final witness for the prosecution was D/Cpl 2496 Filipe Puamau. He has been in the police force for 20 years. In 2011, he was serving in the Drugs Unit based at the CID Headquarters. He was a tenant in the top flat at Lot 67, Shalimar Street, Raiwasa since 2010 till 2015. He said that there were three flats where the first and the second flat had 3 bedrooms each and 3rd flat which is at the bottom had only one bedroom. Describing the middle flat, he said there is one bedroom as you enter from the main door and there are steps to access the other two rooms.
    
63. He said that as at 13/12/2011, the room at the bottom of the 2nd flat was occupied by the 1st accused. He said the 1st accused moved out of the flat two or three months after the raid. On 13/12/2011, he could hear the 1st accused, an Indian lady and an iTaukei lady arguing, and he went down to check. On his way down, a Fijian lady came running up the driveway. He said that police attended to the fight, and also seized some drugs from 1st accused's taxi which was parked in the driveway.
    
64. Based on information he received, he informed the Drugs Unit to raid the middle flat. He did not take part in the raid. As Constable Manu went to pick up the 1st accused and Constable Manoa, a taxi stopped right opposite his driveway. He identified the 2nd accused inside that taxi. He ran to the taxi and opened the left-back door of the taxi. He saw the 2nd accused holding a black bag and leaning onto another Canterbury bag trying to hide the bags. He said the two bags contained dried leaves. He seized the bags and then waited for the driver of the taxi who went to 1st accused's flat to return. Upon questioning the driver, he was told by the driver that the bags belong to the 2nd accused. The two bags were tendered as PW 8A and PW 8B.Then the 2nd accused and the bags were taken to the CID. At CID, the drugs were itemized and the police officers wrote their statements. He said the two bags were padlocked and the keys for the two bags were inside the 3rd bag which was with the 2nd accused inside the taxi.
    
65. During the cross examination on behalf of the 1st accused he said, that he does not know whether Rashika Chand was interviewed in relation to this case or not, as he only took her to the investigating officer. He said he moved in to 67 Shalimar Street around July – August 2010 and when he moved in, 1st accused was already there. He said he had gone to that middle flat on several occasions to stop fights between the 1st accused and his friends and with the two couples staying in the other two rooms. During the cross examination on behalf of the 2nd accused he said when the 2nd accused arrived in the taxi, the 2nd accused was seated on the front seat. Upon being questioned on the 3rd bag, he said the 3rd bag which was at the front seat was initially seized, but since there was nothing else except for keys, that bag was returned to the owner after seizing the keys. He said the 2nd accused jumped from the front seat to the back seat when he arrived at the taxi. He told Constable Joeli to run straight to the driver's seat and he went to the left side to prevent the 2nd accused from running away. He said the 2nd accused was not assaulted at any point, and no swearing or threats made against him.
    
66. That was the case for the prosecution.
    

Case for the Defence

67. At the end of the prosecution case you heard me explain several options to the two accused. Both the accused chose to give evidence and to call their witnesses.
    
68. 1st accused gave evidence and said that he was a taxi driver in December 2011 and he was driving the taxi, registration no. LT 6407 owned by one Prithma Devi. He said, on 13/12/2011 around 6.00am he was drinking beer with his friends, namely Sova, Rani and two other girls. He said the flat was shared by those four who were drinking with him.
    
69. He said they stopped drinking because his girlfriend Rashika came. She started arguing about him drinking with the four. While they were arguing two Police Officers Manoa and Jone came to the flat. When he was asked by the police what was the argument about, he said that it is because of him drinking beer with the friends. After he told the police that Rashika is his girlfriend, the police asked his friends whether she is his girlfriend and one of the friends said she is. According to him one of the girls decided to leave and the police escorted her out. The police came back with a pink bag and Officer Manoa asked him whether he knows anything about it. He told Manoa that he has no idea. This conversation took place in the sitting room when the rest of the friends were sitting there. Then he was taken to Samabula police station. He was drunk at that time as he was drinking from the previous night. The girl who was escorted was picked up by him and Rani from a shop when they went to buy beer, and she was sitting in the back seat of the taxi.
    
70. His girlfriend Rashika also went with him to the police station. At the station Manoa asked for money in order to release him. He did not have money but Rashika gave Manoa $400. Thereafter Rashika left the station. He said he was told to sign on a document Manoa was writing on and he did not know what was written. After some time he was again taken back to the same flat at Shalimar Street by Manoa and 3 officers. He said the officers asked him to sit in the sitting room and went inside the room which was closer to the sitting room. Both the main door to the house and the door to that room were open. He said when the officers went inside, 3 of his friends who were occupying the flat were standing in the sitting room.
    
71. He said he used to visits Rani at the flat four to five days a week and he would stay long hours drinking with the other friends. He usually parks his taxi in the driveway. He said the officers found two yellow gallons and a few plastics during the search. After the discovery, the officers started punching him, and swearing at him. The officers only searched that room and they did not question his friends. He said the last person who occupied the room was a friend of Rani who was not living there at the time of the search. After assaulting him there, he was taken to CID Headquarters at Toorak in a red twin cab and he was assaulted on the way. At that time he was feeling drunk and was having body pains. At CID, the police opened the plastics and spread the drugs on the floor. He was questioned about the drugs and was assaulted. He saw the 2nd accused being assaulted as well. Thereafter they were taken to the Samabula police station.
    
72. He said Police Officer Manoa started questioning him again at Samabula. He signed where Manoa pointed for him to sign, but Manoa was writing the questions himself. He said at that time his address was Lot 11 Matanikorovatu, Makoi, 8 miles, but Manoa wrote 64 Shalimar Street as his address saying that it is going to help him to be released from the case. He spent the night in the Samabula Police Station cell that day and he was not given time to rest until he was locked in the cell. He was questioned again on the next day. He said he was told by one officer that his lawyer was present but he will not be allowed to see the lawyer. He said after he was charged, Manoa asked for more money and he was taken to Westpac Nabua branch by Manoa in a taxi where he withdrew $500 and gave Manoa. Before he left the police station to go to the bank, he saw Rashika and his lawyer outside the police station and he told Rashika that he was going to the bank to withdraw money to give Manoa. After they came back to the station in the same taxi Rashika was asked to pay the taxi fare.
    
73. He said he was not allowed to read the interview notes but he signed when Manoa told him to sign as he trusted Manoa because of the promise to release him. He also said that he was renting the flat at Makoi from June 2010 to December 2011. A tenancy agreement was tendered as DE 2.
    
74. During cross examination by the counsel for 2nd accused, he said he saw 2nd accused being interviewed at the Samabula Police Station. He said he did not ask his girlfriend to call Imtiaz.
    
75. During the cross examination by the prosecution, he said that he complained to Manoa regarding the assault, but nothing was done. He said he did not report about giving money to Manoa because it was his first experience with the police.
    
76. Next witness was Rashika Chand. She said on 13/12/2011, she came to Shalimar Street looking for the 1st accused. She knew that he was at Shalimar Street because 1st accused told her the previous night that he was drinking there. When she arrived, he was not drinking but was drunk. She got angry when she found him drunk and had an argument. There were few people at that time and two police officers came while they were arguing. She then said that the reason for the argument was the presence of an iTaukei lady in the house and to stop the argument, Police escorted that lady out. Then she saw one of the police officers open the taxi and take out a pink bag. The officer came with the bag to the 1st accused and then the 1st accused was taken to the Samabula Police Station. She also accompanied him.
    
77. She said she does not know who was living at that flat and when she left the flat that morning, the people who were there when she arrived were still there. According to her, at that time 1st accused was renting at Makoi, 8 miles. She said that the police officer opened the taxi after the iTaukei lady who was leaving said something to him. At the Samabula Police Station, Officer Manoa started asking questions from the 1st accused. Manoa said he knows that 1st accused is innocent and asked for some money to release the 1st accused. She said she gave the $400 to Manoa as the 1st accused did not have money at that time and thereafter she left. She said she did not call Imtiaz that morning.
    
78. On the next day she came to the police station around 9.30am to see 1st accused. She said she was questioned by Filipe in a room at Samabula Police Station for about one hour. She was asked to sign a statement. When she was waiting outside the station with 1st accused's lawyer, 1st accused came out with officer Manoa and 1st accused came to her and told her that he is going to the bank as Manoa is asking for more money. She said 1st accused and Manoa went in a taxi and when they returned 1st accused told her that he gave $500 to Manoa and also asked her to pay for the taxi. When she paid the taxi fare to the driver, she got the contact details of the driver upon the advice given by 1st accused's lawyer.
    
79. During the cross examination by the prosecution, she said when she went to the flat at Shalimar Street on 13/12/2011, she saw the 1st accused with a Fijian girl when she peeped through the bedroom window. When she was asked about the statement she gave to the police on 14/12/2011, she said she was not given a chance to read it properly. She said, after knocking at the door for few seconds, she turned the knob and the door was open. She said the statement does not reflect what she told Officer Filipe. She also said that she did not peep through the bedroom window and it was through the sitting room window. She admitted that she got angry when she saw the 1st accused with a Fijian girl and this was the reason for the argument and it was not about his drinking. She said there were few more people sitting in the same room. Again she denied that seeing 1st accused with a Fijian girl in the bedroom made her angry. She denied that she kicked the door as a result of her anger. She denied the suggestion that the $500 withdrawn from the bank was given to her and the suggestion that Manoa did not take $400 from her. As the reason for not reporting about money being given to Manoa she said that that was her first experience with police and she had no knowledge what to do.
    
80. One Arvin Vikash Kumar gave evidence next. He said that in December 2011 he was driving a taxi. On 14/12/2011, he picked the 1st accused and another Fijian man near the post office at Samabula, took them to Westpac Nabua branch and dropped them back at the same place. He said one lady paid the taxi fare and also asked for his number.
    
81. One Sarwan Shankar gave evidence and said that the 1st accused was a tenant from 01/06/2010 to 28/12/2011 in a flat belongs to his father and he is a signatory in DE 2, the tenancy agreement. He did not have the receipt book for that period. During cross examination by the prosecution he said he does not know whether the 1st accused was renting at 67 Shalimar Street, Samabula on 13/12/2011.
    
82. Second accused gave evidence and said that on 13th December 2011, taxi driver Imtiaz offered him a lift while he was on his way from 18 Dhanji Street to buy bread. He got in the taxi as Imtiaz was known to him. Then Imtiaz got a call and they went to Shalimar Street. He told Imtiaz to drop him at the Hot Bread, but he was told by Imtiaz that he will be dropped at home after seeing a customer. He said Imtiaz stopped the taxi at Shalimar Street and went out. He was sitting in the front passenger seat. Then two men came to the taxi, opened the front door and started beating him. They pulled him out and told him to sit at the back seat where there were two bags and told him to hold the two bags. He told them that the bags are not his. Then they took him to CID Headquarters in the same taxi. Before that he saw the taxi driver coming towards him with handcuffs. He was assaulted on the way to CID inside the taxi. He said he was assaulted at CID by about ten to fifteen officers. He said that police scattered drugs on the floor and he was surprised to see that. He saw 1st accused being assaulted. He said that the police got the keys from the side of the small bag and then opened the two bags.
    
83. He said he was interviewed by Sailasa. He does not know English and the answers in the interview are not his. He said he did not sign the interview statement. He was interviewed on the 1st day at the CID and on the next day at Samabula Police Station. He spent the night at Samabula cell on the first day and the 1st accused and one Bili Qita were also there.
    
84. He was assaulted during the interview. He was not told that he has a right to have a lawyer and he did not see a lawyer during the 2 days he was interviewed. His brother, Joseph was not allowed to see him. He said one Mahen who was from the same village and his cousin, Chowdhry assisted him regarding his body pain and injuries.
    
85. During cross examination by the prosecution, he admitted that he did not inform the remand officer that he want to be medically examined because it was his first time and he did not know what to do.
    
86. 2nd accused called one Joseph Small next, who said that 2nd accused is his cousin and he went to the Samabula Police Station on 13/12/2011 but he was not allowed to see the 2nd accused. He heard the 2nd accused yelling in pain and also shouting "get the lawyer". He does not know whether a lawyer was arranged.
    
87. Next witness was Filimone Vosarogo. He said he has been a lawyer for 16 years and he went to the Samabula Police Station on a date between 13th and 16th of December 2011 to see the 2nd accused, but he was told by the police to wait. He waited for about one hour and then he left. During cross examination by the counsel for the 1st accused, he said he also met Mr. Henry Brown at the station who had come to see the 1st accused.
    
88. One Bili Qita gave evidence next and said that he was at the Samabula Police Station during the same time the 2nd accused was there and that he saw the 2nd accused being assaulted by police when he was being interviewed. He was also kept in the same cell with the 2nd accused and he saw that the 2nd accused was weak and also was limping.
    
89. During cross examination by the prosecution, he said he saw the 2nd accused after lunch. But when it was pointed out that the 2nd accused's interview was concluded at midday, he said he saw the 2nd accused before lunch.
    
90. Thereafter one Mahendrajeet Maharaj gave evidence and said that he saw the 2nd accused at Korovou in December 2011 and that 2nd accused was in pain and was not walking properly. He said he gave 2nd accused some medicine to apply for that pain.
    
91. The last witness for the 2nd accused was Navin Chowdhry. He was remanded at Korovou in December 2011 and he gave his bed to the 2nd accused because the 2nd accused was sick.
    

Analysis

92. Let me now explain to you how to deal with the cautioned interview statements PE2 and PE7. Firstly, if you look at PE2 and PE7, you will note that certain portions are blacked-out. That is because those portions are not relevant to be considered in this case. Therefore, you should not form any conclusion with regard to those portions that are blacked out.
    
93. With regard to PE2, the first question you should ask yourself is, are you sure that the 1st accused made it?
    
94. The first accused says that both the questions and answers in PE2 were written by the Interviewing Officer Manoa and he only signed at the places shown by Manoa because of the undertaking given by Manoa to release him. He says that he did not make PE2.
    
95. Considering all the relevant evidence, if you have a reasonable doubt as to whether the 1st accused made the statement at PE2, then you should disregard it.
    
96. In the event you are satisfied beyond reasonable doubt that the 1st accused did make the statement at PE2, then you should consider whether the prosecution has proved beyond reasonable doubt that PE2 was not made as a result of oppression and it was not obtained under unfair circumstances.
    
97. The Interviewing Officer Manoa and other relevant police officers said that the 1st accused was not assaulted and no force was used against him during the recording of PE2.
    
98. 1st accused said that he was assaulted from the moment the items were discovered inside the room at Shalimar Street. He said he was drunk when Officer Manoa started questioning him and that he was not allowed to see his lawyer. Officer Manoa said that he gave the 1st accused his right to counsel but he also said that 1st accused's lawyer was not allowed to see the 1st accused. He admitted that he did not allow the accused to sober up before he commenced the interview.
    
99. Considering the above and the all other relevant evidence, you should ask yourselves whether you are sure that PE2 was made voluntarily. Are you sure that PE2 was not made as a result of oppression and general unfairness did not prevail at the time PE2 was recorded. If you are not sure that it was not made voluntarily, then you should disregard PE2.
    
100. If you are sure that PE2 was made voluntarily, then you should consider whether it is true and what weight you should give it.
     
101. Now take PE7. Prosecution says the 2nd accused made it and the 2nd accused says that he never gave the answers in PE7 and he never placed his signature on PE7. He says that the police had forged his signature after questions 2, 5, 8, 54 and 58 because there is no other evidence against him. He also highlights that there are no signatures at the bottom of the pages 2 to 10 on the space specifically provided for the signatures. He says he was assaulted by the police and the police swore at him, before and during the interview.
     
102. If the police forged the signatures at questions 2, 5, 8, 54 and 58; why didn't the police forge signatures at the bottom of pages 2 to 10? On the other hand, can you be satisfied beyond reasonable doubt that the contents of PE 7 only includes what the 2nd accused told the police when his signature is not there at the bottom of every page especially at the conclusion of the interview and when the interviewing officer has never signed PE 7? The interviewing officer's explanation was that PE 7 was the first interview recorded by him.
     
103. The Interviewing Officer Sailasa Turagalulu said that the 2nd accused was interviewed at CID Headquarters on 13/12/2011 and on 14/12/2011 whereas the Witnessing Officer Constable Lasarusa Batikalavo, the 2nd accused and other defence witnesses said that the 2nd accused was interviewed at the Samabula Police Station on 14/12/2011.
     
104. Again, considering all the relevant evidence, if you are not sure that 2nd accused made PE 7, you should disregard it. If you are sure that he made it, then you should consider whether it was made voluntarily.
     
105. The interviewing officer and the relevant police officers said that PE 7 was made voluntarily and 2nd accused was not assaulted and no force was used against him before or during the interview. The 2nd accused said he was badly assaulted by the police, was not given an opportunity to meet his lawyer or to meet his cousin brother.
     
106. Given all the relevant evidence, are you sure that PE 7 was made voluntarily? If you are not, then you should disregard PE 7.
     
107. If you are sure that PE 7 was made voluntarily, then you should consider whether it is true and what weight you would give.
     

Count one

108. Now let us take count one. To prove the first count, the prosecution has to prove beyond reasonable doubt, either;
     
     1. The 1st accused was in control of the Taxi LT 6407 where the drugs referred to in the admitted fact (c) was found; or
        
     2. that the pink bag (PE 1) was in the custody or under the control of the 1st accused, he knew that they existed and he knew that there was something inside the two black bags.
        
109. It is an admitted fact that the 1st accused drove the said taxi on 13/12/2011. There was undisputed evidence that the said taxi was parked on 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 in the back seat of the taxi.
     
110. Considering all the evidence, are you sure that the 1st accused was in control of the Taxi LT 6407?
     
111. If you are sure that the 1st accused was in control of the Taxi LT 6407, then law says you should presume that the 1st accused was in possession of the drugs found in Taxi LT 6407. You should then consider whether the first accused has proved on a balance of probability that he was not in possession of the said drugs by establishing that;
     
     1. the drugs were not in his custody and they were not subject to his control; or
     2. that he did not have the knowledge that the drugs existed; or
     100. he did not have the knowledge that the drugs were in his custody and his control.
          
112. If you are satisfied that 1st accused has established on a balance of probability, any one of the above, then, you should find the 1st accused not guilty of count one.
     
113. If you are satisfied that the 1st accused has not established at least one of the aforementioned elements in evidence, then you should find him guilty of the first count.
     
114. If your answer to the first question above, namely, 'are you sure that the 1st accused was in control of the Taxi LT 6407' is "No", then you should consider whether the prosecution has proved the following elements beyond reasonable doubt;
     
     1. The 1st accused had the custody of the pink bag (PE 1) or the pink bag was subject to his control; and
     2. 1st accused had the knowledge that the pink bag existed; and
     100. 1st accused had the knowledge that something was there inside the pink bag.
          
115. If you are satisfied beyond reasonable doubt that the prosecution has proved the above elements, then you should find the 1st accused guilty of the first count.
     
116. If you have a reasonable doubt in respect of any of the above elements, then you should find the 1st accused not guilty of the first count.
     

Count two

117. Now we will look at the second count. To prove the second count, the prosecution has to prove beyond reasonable doubt, either;
     
     1. The 1st accused was in control of the room at 67, Shalimar Street where the drugs referred to in the admitted facts (a) and (b) were found; or
        
     2. that the two 20 litre yellow containers (PE 6A and PE 6B) and the yellow bag (PE 5) were in the custody or under the control of the 1st accused, he knew that they existed and he knew that there was something inside the two 20 litre yellow containers and the yellow bag.
        
118. You heard the evidence of former Police Officer Manoa who responded to the complaint regarding the domestic disturbance at 67, Shalimar Street with a police driver on 13/12/2011 who said that he saw the 1st accused lying on the bed in the 1st accused's bedroom. He also said that it was the 1st accused's girlfriend Rashika, the iTaikei lady who was escorted out and the 1st accused who were there inside that room. He was not cross-examined about any other friend or person who was there inside the room or in that flat at the time he first went to that room in the morning on that day and when he went there again for the search later in the day. He also said that the 1st accused opened the door to the flat and also the door to this room where the drugs were found. He said that in his presence, the 1st accused told the iTaukei lady to leave where he escorted her out.
     
119. Second and third Prosecution Witnesses D/Corporal Basilio Vevewa and Constable Manueli Yavayawa who took part in the search at 67, Shalimar Street on 13/12/2011, said that 1st accused opened the door to this room which the drugs were found with the key the 1st accused had with him. They were also not cross examined about any other friend of the 1st accused who was present during the search in the sitting room of the flat in which the search was conducted.
     
120. Prosecution Witness D/Corporal Filipe said that he had been living in the flat above the flat in which the search was conducted since 2010 till 2015. He said that the 1st accused was already occupying the room near the main door of the middle flat even before he moved in to that flat around July-August 2010. He said he had gone to this middle flat on several occasions to stop fights between the 1st accused and his friends. He said there were two couples living on the other two rooms in the same flat which is above the room occupied by the 1st accused.
     
121. 1st accused's position was that he was a tenant at Lot 11, Matanikorovatu, Makoi, 8 miles from 2010 June to 2011 December. He tendered the tenancy agreement as DE2 and also called the other signatory to that agreement one Sarwan Shankar who said that 1st accused was a tenant of his. Mr. Shankar also said during cross examination that he does not know whether the 1st accused was renting at 67, Shalimar Street. 1st accused said on 13/12/2011 he was drinking bear with his friends Sova, Rani and two girls and the flat was shared by those four. According to him, they stopped drinking when his girlfriend Rashika arrived and she started arguing about him drinking with the four friends. He also gave evidence to the effect that these four friends were there when the two police officers came and also that the police officers spoke to the friends by asking them whether Rashika is his girlfriend. This position was not put to the witness, Manoa. Again he said that one of the girls decided to leave and the police escorted her out. He said that he and Rani picked this girl who left early when they went to buy beer. He also said that the remaining three of his friends were standing in the sitting room during the search. Again, the police officers who participated in the search were not questioned about these three friends when they were under cross-examination.
     
122. 1st accused's girlfriend said when she arrived at Shalimar Street looking for the 1st accused; he was not drinking, but was drunk. First she said she got angry because she found him drunk and had an argument. Subsequently she said the reason for the argument was the iTaukei lady in the house and the police escorted the lady out in order to stop the argument. In cross examination, she first admitted that she saw the 1st accused with the iTaukei girl when she peeped through the bedroom window and later on she said it was not the bedroom window but the sitting room window. She also confirmed that the reason for the argument was not about 1st accused's drinking, but about the iTaukei girl.
     
123. There were certain inconsistent evidence particularly in relation to the second count. I have explained to you earlier, how to deal with inconsistencies.
     
124. Considering the evidence of the 1st accused with regard to his friends being present in the flat when the police first arrived on 13/12/2011 and during the search, you would note that the relevant Police Officers were not given the opportunity to respond in that regard by questioning them accordingly when they were cross-examined. Therefore, you may decide what weight you would give to that evidence.
     
125. Taking into account all the evidence, you should decide whether the prosecution has proved beyond reasonable doubt that the 1st accused was in control of the room in which the drugs contained in two 20 litre yellow containers (PE 6A and PE 6B) and the yellow bag (PE 5) were found.
     
126. If you are sure that the 1st accused was in control of the room, then you should presume that the 1st accused was in possession of the drugs in relation to the second count. Therefore, you should then consider whether the 1st accused has proved on a balance of probability that he was not in possession of the said drugs by establishing that;
     
     1. the drugs were not in his custody and they were not subject to his control; or
     2. that he did not have the knowledge that the drugs existed; or
     100. he did not have the knowledge that the drugs were in his custody and his control.
          
127. If you are satisfied that the 1st accused had proved any one of the above, then, you should find the 1st accused not guilty of count two.
     
128. If you are satisfied that the 1st accused has not proved at least one of the above, then you should find him guilty of count two.
     
129. If you are not sure that 1st accused was in control of the room in question, then you should consider whether the prosecution has proved the following beyond reasonable doubt;
     
     1. The 1st accused had the custody of the two 20 litre yellow containers and the yellow bag or the two 20 litre yellow containers and the yellow bag were subject to his control; and
     2. 1st accused had the knowledge that the two 20 litre yellow containers and the yellow bag existed; and
     100. 1st accused had the knowledge that something was there inside the two 20 litre yellow containers and the yellow bag.
          
130. If you are satisfied that the prosecution has proved the above elements beyond reasonable doubt, then you should find the 1st accused guilty of the second count.
     
131. If you have a reasonable doubt in respect of any one of the above elements, then you should find the 1st accused not guilty of the second count.
     

(b) Count three

132. Count three is in relation to the 2nd accused. To prove the second count, the prosecution has to prove beyond reasonable doubt, either;
     
     1. The 2nd accused was in control of the Taxi LT 7133 where the drugs referred to in the admitted fact (d) was found; or
        
     2. that the two black bags (PE 8A and PE 8B) were in the custody or under the control of the 2nd accused, he knew that they existed and he knew that there was something inside the two black bags.
        
133. You heard the evidence of the fourth prosecution witness, Imtiaz Ali Buksh who was the driver of the Taxi LT 7133. He said that the 2nd accused told him that PE 8A and PE8B belong to the 2nd accused. He said the 2nd accused was sitting in the front passenger seat of the taxi when he got down at Shalimar Street to collect two twenty litre gallons on the request of the 2nd accused, but when the police officers approached the taxi, the second accused was at the back seat trying to hide the bags. He said the two bags were locked and the 2nd accused took the keys from another small bag which the 2nd accused brought from where he got on to the taxi.
     
134. D/Corporal Filipe Puamau said that when he approached the taxi, the 2nd Accused was at the back seat of the taxi, holding one black bag and leaning onto another Canterbury bag trying to hide those bags. He said the bags were padlocked and the keys were in a third bag which was with the 2nd accused inside the taxi.
     
135. D/Corporal Joeli Rokotuiwailevu said that he saw the 2nd accused sitting in the front passenger seat of the taxi and when Corporal Filipe opened the back door of the taxi, he saw that the 2nd accused was sitting on the back seat. During cross-examination he showed how the 2nd accused was leaning to a side saying that the 2nd accused was holding a bag and was lying on the other bag.
     
136. The 2nd accused's evidence was that he was merely offered a lift by the Taxi Driver Imtiaz when he was on his way to buy bread in that morning. He said he know nothing regarding the two bags and his version was that when he was sitting in the front passenger seat of the taxi, the police pulled him out and told him to sit at the back seat holding the bags to implicate him. He said he was surprised to see the drugs at the CID office and that the Police got the keys from the side of the small bag (PE8B) and then opened the two bags.
     
137. Again based on all the evidence you would consider to be true, you should decide whether the prosecution has proved beyond reasonable doubt whether the 2nd accused was in control of the Taxi LT 7133 in which the drugs contained in two black bags (PE 8A and PE 8B) were found.
     
138. If you are sure that the 2nd accused was in control of the taxi, then you should presume that the 2nd accused was in possession of the drugs in relation to the third count. Therefore, you should then consider whether the 2nd accused has proved on a balance of probability that he was not in possession of the said drugs by establishing that;
     
     1. the drugs were not in his custody and they were not subject to his control; or
     2. that he did not have the knowledge that the drugs existed; or
     100. he did not have the knowledge that the drugs were in his custody and his control.
          
139. If you are satisfied that he has proved any one of the above, then, you should find the 2nd accused not guilty of count three.
     
140. If you are satisfied that the 2nd accused has not proved at least one of the above, then you should find him guilty of count three.
     
141. If you are not sure that 2nd accused was in control of the room in question, then you should consider whether the prosecution has proved the following beyond reasonable doubt;
     
     1. The 2nd accused had the custody of the two black bags or the two black bags were subject to his control; and
     2. 2nd accused had the knowledge that the two black bags existed; and
     100. 2nd accused had the knowledge that something was there inside the two black bags.
          
142. If you are satisfied that the prosecution has proved the above elements beyond reasonable doubt, then you should find the 2nd accused guilty of the third count.
     
143. If you have a reasonable doubt in respect of any one of the above elements, then you should find the 2nd accused not guilty of the third count.
     
144. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
     
145. Any re-directions?
     
146. Mr. Vodokisolomone – No re-directions

Ms. Lagilevu – On what is balance of probability
Ms. Vaniqi – No re-directions

147. Madam Assessors and Gentleman Assessor, you heard that the standard of proof an accused has to prove something is on a balance of probabilities. Balance of probabilities is about what is likely to be true. There you have to decide whether one version is more probable than the other and what version is more likely to be true.
     
148. Madam Assessors and Gentleman Assessor, now you may retire.
     

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.