State v Ratu - Summing Up [2016] FJHC 752; HAC083.2015S (24 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 083 OF 2015S

STATE

vs

INOKE RATU

Counsels : Mr. M. Vosawale and Ms. S. Lodhia for State
Ms. C. Choy and Ms. K. Boseiwaqa for Accused
Hearings : 15 to 19 and 23 August, 2016
Summing Up : 24 August, 2016
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SUMMING UP

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1. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim, which is the public in this case. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same to you:

“... [read from the information]....”

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   • (i) Did the accused, between 1 December 2014 and 7 January 2015, at Kadavu in the Eastern Division, without lawfully authority, cultivated 26.4 kilograms of cannabis sativa plants?
     

5. THE OFFENCE AND IT’S ELEMENTS

9. The accused was charged with “unlawful cultivation of an illicit drug”, contrary to Section 5(a) of the Illicit Drugs Control Act 2004. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:
   
   • (i) the accused
   • (ii) knowingly
   • (iii) without lawful authority
   • (iv) cultivated
   • (v) an illicit drugs

10. Under Section 2 of the Illicit Drugs Control Act 2004, an “Illicit Drug” means “any drugs listed in Schedule 1 of the Act”. In Schedule 1 Part 8 of the above 2004 Act, a “cannabis plants”, whether fresh, dried or otherwise, is an “Illicit Drugs”. A cannabis sativa plant, commonly known as a marijuana plant, according to the above definition, is an “Illicit Drug”. To make the accused liable for the offence, the prosecution must make you sure that what the accused was cultivating, at the material time, was an “Illicit Drug”, within the definition of the above 2004 Act.
    
11. The prohibited act in the offence is the verb “cultivate”. Under Section 2 of the Illicit Drugs Control Act 2004, the word “cultivate” means “planting, sowing, scattering the seeds, growing, nurturing, tendering or harvesting”. Put simply, the prosecution must make you sure that the accused was planting or growing an illicit drug, at the material time. This is the physical element of the offence.
    
12. In addition to the above, the prosecution must make you sure that, the accused, at the material time, knowingly cultivated an illicit drug. It must be shown that the accused knew, at the material time, that he was cultivating an illicit drug. This is the mental element or fault element of the offence.
    
13. The prosecution must also make you sure that the accused had no lawful authority to cultivate an illicit drug, at the material time. However, the accused can escape liability for the offence if he proves, on the balance of probabilities, that he had lawful authority to cultivate the illicit drug. You must look at and carefully consider the total evidence, when answering the above issues.
    

6. THE PROSECUTION’S CASE

14. The prosecution’s case were as follows. On 30 July 2014, the accused (DW1) was 24 years old. He was originally from Vuda, married to a lady from Tavuki, Kadavu. He was residing in Naini settlement in Tavuki in Kadavu. According to the prosecution, he was a subsistence farmer by profession and planted dalo, cassava, yaqona and vegetables for a living. According to the prosecution, the police received information that he was cultivating marijuana at Nabununikoula farm between 1 December 2014 and 7 January 2015.
    
15. On 6 January 2015, Sergeant 3131 Meli Bola (PW1) briefed PC 4651 Vakuru Sawalu (PW2) and PC 5322 Timoci Malanicagi (PW3) to search for the accused’s marijuana farm. At 5.45 am on 7 January 2015, PW2 and PW3 left the Kadavu Police Station to search for the farm. According to the prosecution, at about 10 am on the same day, they discovered a marijuana farm at Nabununikoula. They briefed PW1 on their findings, and PW1 instructed them to wait at the farm for its owner. They accordingly waited at the farm from 10 am to 4 pm.
    
16. According to the prosecution, PW2 and PW3 saw the accused come to the marijuana farm at about 4 pm on the same day. In the farm, PW2 and PW3 saw the accused stood still, looked left, right, left and right, and began to weed the grass besides the marijuana plants. He was weeding with a cane knife. According to PW2, he was weeding for about 30 minutes. PW2 said, he held the marijuana plants with his arms and smell them. After a while, PW2 walked to the accused, and arrested him for cultivating marijuana. PW2 said, the accused admitted that the marijuana farm was his. According to the prosecution, PW2 gave him his rights. The marijuana plants were later uprooted by police. There were 228 marijuana plants in total. The same were packed, and brought to Kadavu Police Station. The accused was also brought to Kadavu Police Station.
    
17. On the same day, at 8.18 pm, the accused was caution interviewed by Corporal 3349 Moape Tau (PW4). The interview was concluded at 8.58 pm. Twenty questions and answers were taken. On 8 January 2015, PW4 took the accused to Suva in the “Lomaiviti Princess” (boat). They left Kadavu at about 1 pm and arrived in Suva at about 10 pm. PW4 also took the 228 marijuana plants with him. From Suva, PW4 took the accused and the marijuana plants to Nasinu Police Station. On 9 January 2015, the marijuana plants were analyzed by a government analyst (PW6). The drugs were found to be cannabis sativa and weighed a total of 26.4 kilograms. On 9 and 10 January 2015, PW4 continued his interview of the accused. At the end of the interview, the accused confessed to the crime.
    
18. On 12 January 2015, the accused was taken to the Suva Magistrate Court, charged with “unlawful cultivation of an illicit drug”. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
    

7. THE ACCUSED’S CASE

19. On 16 August 2016, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to give sworn evidence in his defence, and called no witness. That was his right.
    
20. The accused’s case was very simple. On oath, he denied the allegation against him. He said, he did not cultivate cannabis sativa, as alleged by the prosecution. He said, the marijuana farm the police found on 7 January 2015 at Nabununikoula was not his. He said, the 228 marijuana plants the police uprooted from the farm were not his. He said, the allegation by the police against him were nothing, but a fabrication.
    
21. He asks you to disregard his alleged confession to the police, which were taken on 7, 9 and 10 January 2015. He said, the police repeatedly assaulted him on 7 January 2015 when he was arrested. He said, he was also repeatedly assaulted and threatened by police when caution interviewed on 7, 9 and 10 January 2015. He was forced to sign his caution interview statements. He said, the police refused to take him to CWM Hospital for a medical examination. He said, he was so frightened by the police, that he confessed to them.
    
22. He said, he did not voluntarily give his caution interview statements because he was frightened of the police. He said, he gave the statements without his own free will. He said, the alleged confessions were not true. He asks you to disregard his alleged confessions because it was forced out of him and they were not true. As a result of the above, he asks you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.
    

8. ANALYSIS OF THE EVIDENCE

(a) Introduction:

23. In analysing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analysing the evidence, we will first discuss the “Agreed Facts”, then we will consider the State’s case against the accused, which were fundamentally based on his alleged verbal and written confessions to the police. Then we will discuss the accused’s case, and the need to look at all the evidence.
    

(b) The Agreed Facts:

24. The parties submitted an “Agreed Facts”. A copy of the same is with you. Please, read it carefully. There were three paragraphs of “Agreed Facts”. Because the parties are not disputing the same, you may treat the same as established facts and that the prosecution had proven those facts beyond a reasonable doubt. The significance of the “Agreed Facts” were that, they confirmed the accused was in police custody from 7 to 12 January 2015, before he was taken into Suva Magistrate Court on 12 January 2015.
    

(c) The State’s Case Against the Accused:

25. The State’s case against the accused rested solely on his alleged confessions to the police. He allegedly made two forms of confessions to the police. First, when he was allegedly caught red handed in his marijuana farm on 7 January 2015. Second, when he was caution interviewed by police on 7, 9 and 10 January 2015. We will discuss these alleged confessions in turn.
    
26. On 6 January 2015, Sergeant 3131 Meli Bola (PW1) received information at Kadavu Police Station that the accused was cultivating marijuana at his farm. PW1 briefed PC 4651 Vakuru Sawalu (PW2) and PC 5322 Timoci Malanicagi (PW3) on the information and instructed them to look for the marijuana farm. On 7 January 2015, at 5.45 am, PW2 and PW3 left Kadavu Police Station to look for the marijuana farm. They travelled a distance which was like from Suva High Court No. 1 to Nabua Police Station. At 10 am on the same day, PW2 and PW3 located a marijuana farm at Nabununikoula. PW2 and PW3 rang Sergeant Bola (PW1) at Kadavu Police Station and advised him of their discovery. PW1 instructed PW2 and PW3 to wait at the farm for its owner. The two complied with the instruction.
    
27. At about 4 pm on the same day, the alleged owner came to the marijuana farm. Both PW2 and PW3 were observing him while hiding in the bush. PW2 said, the accused came to the farm, stood still, looked left, right, left and right, and then started to weed the grass among the marijuana plants, with a cane knife. Then he started to hold the marijuana plants with his arms and started smelling them. Then he continued weeding the weeds in the marijuana farm. PW2 said, he was observing the accused for about 30 minutes. After a while, PW2 went to the accused, and arrested him for cultivating marijuana. PW2 said, the accused was shocked, and he told PW2 not to trespass on his marijuana farm. This utterance amount to a verbal confession, given the surrounding circumstances.
    
28. PW2 said, he gave the accused his right to silence and his right to counsel. He said, he and PW3 did not assault or threaten the accused while he was in their custody. PW3 gave evidence, and he confirmed what PW2 said above. PW2 later contacted Sergeant Bola (PW1). PW1 later came with other police officers. The accused’s marijuana plants were uprooted, bundled together and taken to Kadavu Police Station. There were 228 marijuana plants in total. The accused was also taken to the Kadavu Police Station.
    
29. On 7 January 2015, at about 8.18 pm, the accused was caution interviewed by Corporal 3349 Moape Tau (PW4). The interview ended at 8.58 pm. A total of 20 questions and answers were made. PW4 said, he was asking the questions and the accused was answering. PW4 said, he recorded the interview with his own hand writing. PW4 said, he gave the accused his rights under Section 13(1)(a) to (k) of the 2013 Fiji Constitution, his right to counsel and also formally cautioned him. The interview was suspended until the 9 January 2015 at Nasinu Police Station. On 8 January 2015, the police took the accused and the 228 marijuana plants uprooted from his farm, from Kadavu Police Station to Nasinu Police Station.
    
30. On 9 January 2015, PW4 took the 228 marijuana plants to the Fiji Police Forensic Department at Nasova for analysis. Ms. Miliana Werebauinona (PW6), the police Principal Scientific Officer, analysed the marijuana. She confirmed the same to be cannabis sativa, an illicit drug, and it weighed 26.4 kilograms. She submitted her Certificate of Analysis (Prosecution Exhibit No. 4) and Analysis of Cannabis Report (Prosecution Exhibit No. 5) as proof thereof. The 228 marijuana plants were handed by PW6 back to PW4 at the end of the analysis.
    
31. On 9 and 10 January 2015, the accused’s caution interview resumed at Nasinu Police Station. PW4 gave the accused his right to counsel and his rights under Section 13(1)(a) to (k) of Fiji’s 2013 Constitution. On 9 January 2015, questions and answers 21 to 50 were covered. On 10 January 2015, the accused was again given his rights under the 2013 Constitution. Questions and answers 51 to 69 were covered. PW4 said the accused was given his right to counsel, the standard caution and the standard meal and rest breaks. At the end of the interview, PW4 said the accused confessed to the crime: see questions and answers 29 to 42, 44 to 50, 58 to 65. This was the second type of confession the accused made to police. PW4 tendered the accused’s caution interview statements as Prosecution Exhibit 1(A) – hand written version, and 1(B) – typed version. Please, read the interview notes carefully.
    
32. The way the above alleged confessions were obtained by police were the subject of dispute between the parties. According to the police, they did not assault or threaten the accused while he was in their custody. According to the police, he was given his constitutional rights under Section 13(1)(a) to (k) of the 2013 Constitution, was given his right to counsel, was cautioned, was given the standard meal and rest breaks, while he was in police custody. According to the police, he gave his verbal and written confessions to the police voluntarily and out of his own free will. The police said, they saw no injuries on him, and they took him to Makoi Health Centre when required. The police said, he never complained to the Magistrate of any alleged police misbehaviour on 12 January 2015, when he first appeared in the Suva Magistrate Court. The accused said, he complained to the High Court on 27 February 2015 of police misbehaviour, but the court record does not verify the above.
    
33. The accused, on the other hand, said the police beat the above confessions out of him. He said, when the police arrested him at the marijuana farm, they hit him with the blunt side of a cane knife. Later, he said, the police threatened to kill him if he does not co-operate with them. He said, they force him to walk like a duck for 30 minutes, and forced him to do 25 press ups. He said, Corporal Moape (PW4) punched him in the mouth. He said, the other police officers at the farm jointly assaulted him to admit the farm was his. He said, they also pulled his ears. He said, during the caution interview, PW4 continually swore at him. He said, at Kadavu Police Station, they hit his ribs with a stick and police baton for 4 hours. He said, he was taken to Makoi Health Centre because he had body pains, sore head and a loose tooth. He said, on 10 and 11 January 2015, he was repeatedly slapped and assaulted by police for 4 hours. He said, he was beaten 55 times with a table leg stick. He said, as a result of the repeated assaults by police, he confessed.
    
34. When considering the above evidence. I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements as alleged by the police above. If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
    
35. If you accept the accused’s above confessions, then you will have to find the accused guilty as charged. If you don’t accept the same, then you will have to find the accused not guilty as charged. It is a matter entirely for you.
    

(d) The Accused’s Case:

36. The accused denied the allegation against him. He appeared to say that, at no time whatsoever, did he ever unlawfully cultivated marijuana. As to his alleged confessions, he said, the police repeatedly assaulted and threatened him, and as a result, he didn’t give his statements voluntarily. He said, the police forced the confession out of him, and he asks you to disregard the same.
    

(e) Considering All the Evidence:

37. You will have to look at and consider all the evidence together. You will have to compare and analyse all the evidence together. You have heard and seen all the witnesses give evidence. You had observed their demeanour in the courtroom. Who do you think was the credible witness? Who do you think was forthright as a witness? Who do you think was the evasive witness? Who do you think, from your point of view, was telling the truth? If you think the prosecution’s witnesses were credible witnesses and you accept their evidence, then you must find the accused guilty as charged. If otherwise, then you must find the accused not guilty as charged. It is a matter entirely for you.
    

1. SUMMARY

38. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
    

39. Your possible opinions are as follows:

(i) Unlawful Cultivating of Illicit Drugs : Guilty or Not Guilty

40. You may retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
    

Salesi Temo

JUDGE

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

Solicitor for Accused : Legal Aid Commission, Suva.