State v Abourizk - Judgment [2016] FJHC 317; HAC126.2015 (22 April 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA
CRIMINAL CASE: HAC 126 OF 2015
BETWEEN:
STATE
AND:
1. JOSEPH NAYEF ABOURIZK
2. JOSESE MURIWAQA

Counsel : Mr Semi Babitu for Prosecution
Mr. M. Thangaraj S.C., with Mr. Iqbal Khan and Mr Warwick Korn for 1st Accused
Mr. Mark Anthony for 2nd Accused
Date of Hearing : 11th of April 2016 to 15th of April 2016
Date of Closing Submissions : 15th of April 2016
Date of Legal Submissions : 15th and 19th of April 2016
Date of Summing Up :20th of April 2016
Date of Judgment : 22nd of April 2016
JUDGMENT

1. The first and the second accused persons are charged with one count of Unlawful Possession of Illicit Drugs, contrary to Section 5(a) of the Illicit Drugs Control Act 2004, The particulars of the offence are that;
   

"Joseph Nayef Abourizk and Josese Muriwaqa on the 13th day of 2015, at Lautoka in the Western Division, without lawful authority, were found in possession of illicit drugs weighing 49.9 kilograms"

2. The two accused persons pleaded not guilty for this offence, hence the matter was set for hearing. The hearing was commenced on 11th of April 2016 and proceeded till 15th of April 2016. The prosecution called four witnesses to prove the charge against the two accused persons. The first accused person gave evidence on oath, but did not call any other witnesses for his defence. The second accused person, neither gave evidence nor called any other witnesses for his defence. However, he advised the court that he endorses and adopts the evidence given by the first accused person for his defence. Subsequently, the learned counsel for the prosecution made his closing submissions, and was followed by the closing submissions of the counsel of the first and second accused persons. The learned counsel for the prosecution and the two accused persons then made their legal submissions in the absence of the assessors. At the conclusion of the respective closing submissions of the parties, I made my summing up.
   
3. The five assessors returned with unanimous verdict of not guilty for the first and second accused persons respectively. The assessors' verdict was not perverse. It was open for them to reach such conclusion based on the evidence presented during the course of this hearing.
   
4. Having carefully considered the evidence adduced during the course of the hearing, the respective closing submissions of the parties, the summing up and the verdict of the five assessors, I now proceed to pronounce my judgment as follows.
   
5. Section 5(a) of the Illicit Drugs Control Act states that;
   

"Any Person who without lawful authority-

1. .....,possesses,........an illicit drugs,

commits an offence and is liable on conviction to a fine not exceeding $ 1,000,000 or imprisonment for life or both"

6. The prosecution alleges that the two accused persons were having in their possession 49.9kg of illicit drugs, namely Cocaine. They were found in a car bearing the registration number HM 046 ( hereinafter referred as HM046) a location close to Vuda Point, Lautoka. The police have found 34 parcels wrapped with plastic wrappers and masking tapes inside a travelling bag and a suitcase. The bag and the suitcase was found inside the boot of the HM 046. Accordingly, the main elements of the offence of Unlawful Possession of Illicit Drugs as charged in the information are that;
   
   1. The two accused persons,
   2. Without lawful authority,
   3. Found in possession,
   4. Illicit drugs namely Cocaine, weighing 49.9 kg.
      
7. If the prosecution proved beyond reasonable doubt that the two accused persons had in possession of such illicit drugs, the burden will then shift onto the two accused persons to prove that they had a lawful authority to bear such possession. However, the first and second accused persons did not adduce any evidence to establish that they had any lawful authority to have in possession of illicit drugs. Hence, the element of "without lawful authority" is not disputed during the course of the hearing.
   
8. I now turn onto the next element of the offence, that is "possession". In these proceedings, the two accused persons have jointly been charged for the offence of Unlawful Possession. Accordingly, the prosecution has to prove beyond reasonable doubt that the first and the second accused persons were found in joint possession of illicit drugs, namely Cocaine.
   
9. Justice Gounder in Koroivuki v State ( 2013) FJCA 15;AAU0018.2010 ( 5 March 2013) held that;
   

" The Illicit Drugs Control Act 2004 does not define the word " possession". In absence of a statutory definition, the court can be guided by the English common law definition of the word " possession". Possession is proven if the accused intentionally had the drugs in his physical custody or control to the exclusion of others, except anyone who was acting in concert with him in the alleged offence ( Lambert [2001] UKHL 37; 2002) 2 AC 545). Possession is also proven if the accused intentionally had the substance in some place to which he either alone or jointly with some other person acting in concert with him has access and might go to get physically or control it ( Lambert, supra)".

10. Accordingly, a person is in possession of illicit drugs, if it is in his actual physical custody, or is otherwise within his control and he knows it is there and has the intention to exercise custody or control over it.
    
11. Justice Gamalath in Sheik Mohammed and Michael Chandra v State ( Criminal Appal No AAU0092 of 2001) has discussed the issues of joint possession, where his lordship held that;
    

"Considering this under the principle of "a fotiori", that if the definition for "possession" should be in accordance with the English Common Law; [Laisiasa Koroivuki v The State (supra)]; then the definition of "joint possession" should also be in accordance with the English Common Law.

According to the English Common Law, in attributing criminality for being in joint possession of an illicit drug, it should be based, not only on the evidence of having the mere possession of the noxious item, but also on additional material to demonstrate that there had been extra beneficial factors that operate in furtherance of the interest of each confederate to the crime.

In R. v. Searle [1971] Crim.L.R. 592 CA, it was decided as follows:-

"...the defendants were convicted of possessing a quantity of various dangerous drugs which had been found in a vehicle used by them for a touring holiday. It was alleged that they were all in joint possession of all the drugs. Possession of any particular drug could not be attributed to any particular defendant. The court held: (a) that mere knowledge of the presence of forbidden article in the hands of a confederate was 'not enough, it being impossible to equate knowledge with possession; and (b) that an appropriate direction would be to invite the jury to consider whether the drugs formed a common pool from which all had the right to draw at will, and whether there was a joint enterprise to consume drugs together, because then the possession of drugs by one in pursuance of that common enterprise might well be possession on the part of all."

According to Archibald [2012], para. 27.69, pg 2526,

"An allegation of joint possession of drugs, where they have not been found on the person of any of the alleged joint possessors, entails an allegation that each had the right to say what should be done with the drugs, a right shared with the other joint possessors. Knowledge is a sine Quo non of possession, but it is not enough.

A person in a car, who is told of the presence of drugs in the car, is not thereby saddled with possession thereof; R v Strong and Berry [1989] L. S. Gazette, March 8, 41, CA.

It appears clear from the tenor of the court's judgment, however, that their view was that evidence of a defendant's presence in a car where drugs were found combined with evidence of knowledge of the presence of the drugs would raise a prima facie case of possession against the defendant. If the defendant was the owner or the user of the car, then, depending on all the circumstances, knowledge might be imputed".

13. Accordingly, the prosecution is required to prove beyond reasonable doubt that the two accused persons knowingly had these illicit drugs in their actual possession or of their custody. and they had the knowledge and consent of each others to have these illicit drugs in their possession.
    
14. Section 32 of the Illicit Drugs Control Act, states 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 possession of such illicit drugs, controlled chemical or controlled equipment".

15. Accordingly, Section 32 has provided a presumption of possession, if the prosecution is satisfied beyond reasonable doubt that;
    
    1. The suitcases and the traveling bag were found inside the HM046,
    2. The bag and the suitcases contained something inside, and
    3. That "something" in the traveling bag and one of the suitcases were illicit drugs, namely Cocaine,
    4. The vehicle HM046 was under the control of the two accused persons,
       
16. If the prosecution proved beyond reasonable doubt the above mentioned four factors, the burden will then shift onto the two accused persons to prove contrary. What the two accused persons are required to do is to adduce evidence or point to evidence that suggest a reasonable possibility that the contrary to the presumption of possession existed. If the two accused persons successfully proved the contrary, the court is then required to determine whether the prosecution has proven all essential ingredients of offence of unlawful possession beyond reasonable doubt.
    
17. Having discussed the applicable law pertaining to the offence of Unlawful Possession of Illicit Drugs, I now proceed to analyse the evidence presented by the parties with the applicable laws.
    
18. The first and second accused persons have admitted in the agreed facts, that they are known to each other and had been traveling in HM046 since 7th of July 2015. They have further agreed that they were travelling in HM 046 on the 13th of July 2015. The second accused person was the driver of HM046 and the first accused person was the passenger when the police approached them at Vuda Point.
    
19. During the course of hearing, the two accused person did not challenge that the suitcases and a bag were in the HM 046. ASP Neiko stated in his evidence that he found some suitcases and a traveling bag inside the boot of HM046 when he approached and searched the car. He has then found 20 parcels wrapped with plastic wrappers and masking tapes in the travelling bag and 14 more such parcels inside one of the suitcases found in HM 046. He positively identified the bag and suitcase together with those 34 parcels, while giving evidence in court.
    
20. IP Maciu in his evidence stated that he was shown by ASP Neiko the bags and the drugs in HM 046. He then called Sgt Rusila to take photographs of the bags with the alleged drugs at the scene. The prosecution tendered 12 photographs taken by Sgt Rusila at the scene as an agreed fact. IP Maciu in his evidence stated that he then took the bag and suitcases with these 34 parcels to the Lautoka Police Station and locked them in a room at the crime office with adequate security. The Principal Scientific Officer of Fiji Police Force conducted the testing of the drugs on 14th of July 2015 at the Lautoka Police Station. The report of the Principal Scientific Officer was tendered as an agreed fact.
    
21. The first accused person in his evidence actually did not dispute the presence of suitcases and the bag in HM046. Furthermore, he did not adduce evidence to establish that neither he nor the second accused person were not in control of HM046. According to the evidence of the first accused person, both of them were in HM 046 at the location where ASP Neiko approached them. In view of these evidence and the agreed facts, I am satisfied that the prosecution has successful proven beyond reasonable doubt that;
    
    1. The Suitcases and the travelling bag were found inside HM 046,
    2. The bag and one of the Suitcases found inside HM 046, had 34 wrapped parcels,
    100. Those 34 wrapped parcels were illicit drugs, namely, Cocaine,
    4. HM 046 was under the control of the first and second accused persons.
       
22. Accordingly, the prosecution has successfully established the presumption of possession as stipulated under Section 32 of the Illicit Drugs Control Act. Hence, the onus is now shifted on the two accused persons to prove contrary or rebut the presumption of possession.
    
23. The first accused person stated in his evidence that he met one Simon at Denarau Golf Club while he was watching a football match. Simon told him that he owns a boat and he charters it for trips. The First Accused person then booked a trip for himself and his wife on Saturday. However, Simon informed him on Saturday morning that he has to cancel the trip. The wife of the accused left Fiji on Sunday evening. Simon again called him on Monday and informed him that he could still go on the boat trip with his wife. Having heard that the wife of the first accused has already left, Simon had offered the first accused person a free boat trip on Monday. The first accused person went to First Landing Resort with the second accused person to meet Simon and go on the said free boat trip. However, Simon has told them there was a mechanical problem in the boat and has taken them to Ba. According to the evidence given by the first accused person, in Ba, Simon has asked them to take the baggages of his crew in HM046 as they can go to the boat and make it ready until the crew returned with the correct marine radio. First accused person returned to Vuda Point with the second accused person and Simon. They dropped Simon at First Landing Resort as he requested them for 15 minutes for him to check out from the Resort. He asked the two accused persons to go to Vuda Marina, which is situated right next to the First Landing Resort and he will meet them there. The two accused persons instead of going there, turned to the left side of the Resort and went along a narrow gravel road to see lands for sale. When they saw a railway cart, which was parked beside the gravel road, they realised that they could not go further. They turned their car back. At that point they saw the vehicle of ASP Neiko. ASP Neiko approached them and asked them what they were doing at this location.
    
24. According to the evidence given by the first accused person, the two accused persons claim that they had no knowledge of or knew nothing of the existence of drugs in the bag and suitcases as it belonged to Simon. It appears that the first accused person has given evidence, which, if believed, could be taken by a court to support their defence.
    
25. Having concluded that, I now turn onto determine whether the prosecution has proven beyond reasonable doubt that the two accused persons had the knowledge and the control of the illicit drugs that was found inside the bag and suitcases in HM 046.
    
26. ASP Neiko in his evidence stated that he and his team stationed at Natabua junction and monitored for six hours the movement of vehicles going towards Nadi from Lautoka City area on the 13th of July 2015. They then noticed HM 046 coming from the Lautoka city and going towards Nadi. They then followed HM 046 until it turned into the gravel road and drove further about 500 meters and stopped at the railway cart. ASP Neiko did not state in his evidence that HM 046 went into First Landing Resort or stopped anywhere to drop off any person.
    
27. ASP Neiko was extensively cross examined by the learned counsel of first accused person. He admitted in his cross examination that he gave evidence during the voir dire hearing and stated that he first saw HM 046 along the Queen's high way and followed it until it turned to the gravel road and stopped near the railway cart. In this instant case, ASP Neiko stated that he first saw HM 046 when it was passing the junction of Natabua and traveling towards Nadi. He explained the reasons for stating Queen's highway in the voir dire hearing. He said the junction of Natabua is also situated on the Queen's highway. Accordingly, I do not find any fundamental inconsistency affecting the credibility and reliability of the evidence of ASP Neiko in stating that he saw HM 046 when it was passing the junction of Natabuwa and then followed it .
    
28. The evidence of ASP Neiko with regard to HM 046 entering into the gravel road and traveling down until it found the railway cart and stopped there was not disputed. It rather goes parallel with the evidence given by the first accused person. Hence, I find the evidence of ASP Neiko in relation to observing of HM 046 and then following HM046 until it came and stopped in the gravel road is credible and trustworthy.
    
29. Neither the learned counsel for the first accused nor the counsel for the second accused person cross examined ASP Neiko whether HM046 turned into the First Landing Resort before it entered into the said gravel road, or stop somewhere to drop off a person before it entered into the gravel road.
    
30. Based on the credibility of the evidence of ASP Neiko and the fact that he was not cross examined by the counsel of the two accused persons as to whether he saw HM 046 turning into the First Landing Resort and or stopping somewhere to drop off a person, I do not find the evidence given by the first accused person that he went to First Landing Resort and dropped Simon before entering into the gravel road as credible and reliable evidence.
    
31. The learned counsel for the first accused person submitted during his closing address that Simon has manipulatively and surreptitiously involved the two accused persons in transportation of illicit drugs. If Simon had the intention to involve the two accused persons as drug mules in the transportation of million dollar worth illicit drugs, he must do so in order to transport the substance safely and also to conceal his identity from the law enforcement authorities, if the substance was detected by law enforcement authorities while transporting. If so, Simon should not have travelled with the two accused persons in HM 046 with these illicit drugs and leave it with the two accused persons while he went into the Resort to check out. Simon had not known first accused person apart from his meeting with the first accused person at the Denarau Golf Club. Hence, I do not find the evidence of the first accused person that Simon took them to Ba and asked them to bring the baggages in HM046 with Simon as credible, probable and truthful evidence.
    
32. In view of the reasons discussed above, I refuse to accept the evidence given by the first accused person that the bag and suitcases found in HM046 belonged to a person by the name of Simon and he dropped Simon at the First Landing Resort before they entered into the said gravel road.
    
33. Furthermore, I find the evidence given by the first accused person has not created any reasonable doubt on the evidence of ASP Neiko that he followed HM 046 from the Queen's highway until it came and stopped near the railway cart along the gravel road. Accordingly, I am satisfied that the prosecution has successfully proven beyond reasonable doubt that HM 046 was came along the Queen's highway from the direction of Lautoka City, towards Nadi and then came to this particular gravel road without stopping anywhere or turning to First Landing Resort to drop someone.
    
34. The existence of knowledge and intention could be inferred from the facts that are considered as proven. Drawing of inference is a process which allows to draw a further conclusion of the existence of a fact from evidence which is considered as reliable and proven. The conclusion or the inference must be the only and certain rational conclusion or inference of the guilt of the accused persons. If the evidence that you accepted or considered as reliable and proven, suggest you some other probable inferences or conclusions, which show the innocence of the accused or create a doubt as to the guilt of the accused, it is then not entitled to draw any inference or form any conclusion of guilt of the accused person.
    
35. The prosecution has proven beyond reasonable doubt that the first accused person is an Australian, visiting Fiji, knew the second accused person. They had been traveling in HM 046 since 7th of July 2015. They were found by ASP Neiko while they were driving along Queen's highway in HM046 from the direction of Lautoka City. He followed them until they entered into a gravel road and stopped after driving about 500 meters into the gravel road at a remote location. HM 046 did not stop anywhere or turn into the First Landing Resort to drop anyone. Then the police found suitcases and bag inside HM 046. They further found 34 wrapped parcels inside one of the suitcases and the bag. The parcels were tested and confirmed positively as illicit drugs namely Cocaine.
    
36. In view of these proven facts, I could draw a positive inference that the two accused persons had the knowledge of the existence of these illicit drugs in their joint control. I am satisfied, that the above proven evidence do not suggest any other probable inferences or conclusions showing the innocence of the two accused persons or creating reasonable doubts as to the guilt of the two accused persons. Accordingly, it is my considered opinion that prosecution has successfully proven beyond reasonable doubt that two accused persons were found in joint possession of illicit drugs namely Cocaine.
    
37. In view of these reasons, I find that there is a cogent reason for me to disagree with the unanimous verdict of not guilty given by the five assessors.
    
38. I accordingly hold Mr. Joseph Nayef Abourizk and Mr. Josese Muriwaqa are guilty for the offence of Unlawful Possession of Illicit Drugs, contrary to Section 5(a) of the Illicit Drugs Control Act, 2004 and convict them accordingly.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka

22. April 2016
    

Solicitors : Office of the Director of Public Prosecutions
Messrs Iqbal Khan and Associates for the First Accused person
Messrs Tuifagalele Legal for the Second Accused person