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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 006 OF 2016LAB
STATE
V
JONE SERU
Counsels : Mr. R. Kumar for State
Accused in Person
Hearings : 17, 18, 19 and 20 July, 2017
Summing Up : 21 July, 2017
SUMMING UP
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 Counsel and the accused have made submissions to you, about how you should find the facts of this case. That is in accordance
with their duties as State Counsel and accused, 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.
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.
7. You have a copy of the information with you, and I will now read the same to you:
“... [read from the information]....”
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 October 2011 and 8 February 2012, at Savusavu in the Northern Division, without lawful authority,
cultivated 23 plants of cannabis sativa plants, weighing 5.5 kilograms?
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 drug
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 plant”, whether fresh, dried or otherwise, is an “illicit drug”. 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 seed, 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.
F THE PROSECUTION’S CASE
14. The prosecution’s case were as follows. On 8 February 2012, PC 4799 Peter Pickering (PW1) and his cousin went to a drug farm 100 meters from the Savusavu Magistrates Court. They had known the farm
existed and wanted to find out, who the owner was. According to the prosecution, PW1 and his cousin found the accused Jone Seru,
hiding near a tree log among the farm. They chased him. He ran down the hill, but was later caught by the two. PW1 arrested
the accused and called Savusavu Police Station for assistance via his mobile phone.
15. PC 4272 Inia Cagilevu (PW2), Corporal 2753 Lesley Morris Miller (PW3) and PC Mataiasi arrived from Savusavu Police Station. PW1 handed the accused to PW2, who later handed him to PW3. PW3 later escorted the accused to Savusavu Police Station. PW1, PW2 and PC Mataiasi later uprooted the marijuana plants from the drug farm and the same were taken to Savusavu Police Station. On 9 February 2012, SC 1833 Badal Lal (PW6) took the above drugs to Koronivia Research Station for analysis. It was received by Ms. Miliakere Nawaikula (PW5), the then government analyst. PW5 analyzed the same and found it to be cannabis sativa weighing 5.5 kilograms. She returned the drugs to PW6.
16. On 8 and 9 February 2012, PC 3553 Baleisuva (PW4) cautioned interviewed Jone Seru at the Savusavu Police Station. All his legal rights were given to him, he was cautioned and given the standard meal and rest breaks. During the interview, the accused admitted the offence. He was later produced at the Savusavu Magistrates Court on 10 February 2012. The case remained in the Magistrate Court until 15 March 2016, when it was brought to the Labasa High Court. He had been charged for unlawfully cultivating illicit drugs between 1 October 2011 and 8 February 2012.
17. Because of the above, the prosecution is asking you, as assessors and judges of facts, to find the accused guilty as charged. That was the case for the prosecution.
G THE ACCUSED’S CASE
18. On 18 July 2017, the first day of the trial proper, the information was put to the accused. He had previously waived his right
to counsel and had chosen to represent himself. 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 remain silent and called no witness. That was his right.
19. Remember, nothing negative whatsoever should be imputed to the accused for choosing to remain silent and calling no witness. As I told you in paragraph 4 hereof, the burden to prove the accused’s guilt beyond a reasonable doubt rest with the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. He is not required to prove his innocence or prove anything at all.
20. As to his alleged admission in his caution interview statements, he cross-examined the police officers involved in his arrest and interview. He suggested to them in his questions that they repeatedly assaulted and threatened him to confess, when he was in their custody. He suggested to them that, he didn’t give his interview statements voluntarily, and thus you should reject them. If you find his challenge, via cross-examination credible, then you are entitled to disregard his caution interview statements. If you think otherwise, then you may accept his interview statements. It is a matter entirely for you.
21. In his closing submission, he submitted he did not cultivate illicit drugs, at the material time. Because of the above, he is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the accused.
H ANALYSIS OF THE EVIDENCE
(a) Introduction:
22. In analyzing 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 and judges of fact,
please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analyzing the evidence, we will first discuss
the state’s case against the accused; then we will discuss the accused’s position in the case, and lastly, the need
to consider all the evidence.
(b) The State’s Case Against the Accused:
23. The State’s case against the accused was based on various types of evidence. First, the State relied on the evidence of
PC 4799 Peter Pickering (PW1) who saw the accused hiding behind a tree log in the midst of a marijuana farm a 100 meters from the
Savusavu Magistrate Court. Secondly, the State relied on the evidence of PW1 and PC 4272 Inia Cagilevu (PW2), who jointly uprooted
the marijuana plants from the farm mentioned above. Later, they took the same to Savusavu Police Station, where the drugs were
later taken to Koronivia Research Station by SC 1833 Badal Lal (PW6). Thirdly, PW6 handed the above drugs to the government analyst,
Ms. Miliakere Nawaikula (PW5), who analyzed the same, and found it to be cannabis sativa, weighing 5.5 kilograms. Lastly, the State
relied on the accused alleged confession in his caution interview statements, taken by PC 3553 Beleisuva on 8 and 9 February 2012
at Savusavu Police station. We will now discuss those evidence in turn.
24. PC 4799 Peter Pickering (PW1) said on 8 February 2012, after 8am, he went to a cousin of his. The name of his cousin was Lyod. Pickering. PW1 said, the two knew about a marijuana farm situated a 100 meters from the Savusavu Magistrate Court. They wanted to know who owned the farm. PW1 said, they visited the farm at about 10am on 8 February 2012. While surveying the marijuana farm, PW1 said he saw the accused hiding beside a rain tree log in the midst of the farm. PW1 said, he had known the accused for 5 years and knew him well. PW1 said, they chased the accused down a hill, as he fled to his house, which was nearby. PW1 said, he later arrested the accused and called for assistance from the Savusavu Police Station via his mobile phone. PW1 said, the assistance arrived a few minutes later, and he handed over the accused to PC 4272 Inia Cagilevu (PW2). PW1 said, he and his cousin did not assault or threaten the accused while he was in their custody.
25. PW2 next gave evidence. He confirmed he received the accused from PW1. He said, he later handed the accused over to Corporal 2753 Lesley Morris Miller (PW3). PW2 said, he later went with PW1 and PC Mataiasi to uproot the marijuana plants from the drug farm PW1 previously identified. According to PW2, they uprooted 20 marijuana plants. PW2 said, they later took the marijuana plants and handed the same to the police investigation officer, PC 3553 Madigibuli Baleisuva (PW4). PW3 had previously escorted the accused to the Savusavu Police Station in a police vehicle. PW2 and PW3 said, they did not assault or threaten the accused while he was in their custody.
26. PW4 next gave evidence. He said, he caution interviewed the accused at Savusavu Police Station on 8 and 9 February 2012, in the i-taukei language. PW4 said, he recorded the same in his own hand writing and he asked 37 questions and the accused gave 37 answers. PW4 said, the accused was given his legal rights and his right to counsel. He was formally cautioned and given the standard rest and meal breaks. In the interview, PW4 said, he translated the interview notes to English, and he tendered the same as Prosecution Exhibit 1(A), i-taukei version, and 1(B), the English version. For his confessions, please refer to questions and answers 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 of Prosecution Exhibit No. 1(B). PW4 said, in questions and answers 36 and 37, the accused admitted his caution interview statements were given with his own free will and they were the truth. PW4 said, he did not assault or threaten the accused while he was in his custody.
27. Ms. Miliakere Nawaikula (PW5) next gave evidence. She was a former government analyst working at Koronivia Research Station. PW5 hold a Masters Degree in Applied Science from the Queensland University of Technology (1996), a Bachelor of Applied Science from the University of Tasmania (1984) and a Certificate in Botanical Identification of Cannabis from New Zealand (1992). She had been a government analyst since 1991 and had previously conducted 30 to 40 thousand cannabis sativa analysis per year. She is certainly an expert in this area. PW5 said, she did the drug analysis in this case. PW5 referred to a copy of a “certificate of analysis” and “analysis of cannabis” she filled in on 9 February 2012. She submitted the same as Prosecution Exhibit No. 2 (Certificate of Analysis) and Prosecution Exhibit No. 3 (Analysis of Cannabis). PW5 said, she received the drug samples from SC 1883 Badal Lal (PW6) at Koronivia Research Station on 9 February 2012. She said, she analyzed the drugs and found them to be cannabis sativa. It weighed 5.5 kilograms. After considering PW5’s total evidence, and in the light of previous case authorities, I declare Prosecution Exhibit No. 2 and 3, as admissible evidence, and you may consider the same in your deliberation.
28. PW6 next gave evidence. He confirmed what PW5 said that he delivered the drugs to PW5 on 9 February 2012. PW6 said he brought the drugs from Savusavu Police Station for analysis at Koronivia Research Station on 9 February 2012 and handed the same to PW5. PW6 said PW5 later gave him the original of Prosecution Exhibit No. 2 and 3, and he took it back to Savusavu Police Station and handed it to the Crime Writer WPC Vulaono.
29. The above were a summary of the prosecution’s case. If you find the prosecution’s witnesses’ evidence credible and you accept the same, you will have to find the accused guilty as charged. If otherwise, you will have to find the accused not guilty as charged. It is a matter entirely for you.
(c) The Accused’s Case:
30. In paragraphs 18, 19, 20 and 21 hereof, we had considered the accused’s position. I repeat the directions I gave you in
those paragraphs. If you accept his version of events, as submitted to you in his closing submission, you are entitled to find
him not guilty as charged. It is a matter entirely for you.
(d) The Need to consider All the Evidence:
31. In this case, the prosecution called 6 witnesses, that is, five police officers and the government analyst. The prosecution
submitted three exhibits, that is, Prosecution Exhibit 1(A) – the accused’s i-taukei caution interview statements; Prosecution
Exhibit 1(B), the English translation of accused’s caution interview statements; Prosecution Exhibit No. 2 (copy of Certificate
of Analysis) and Prosecution Exhibit No. 3 (copy of Analysis of Cannibis). The accused choose to remain silent and called no evidence.
You must consider all the evidence together, compare and analyze them. If I haven’t mention any evidence you consider important,
please take it onboard in your deliberation. Depending on a witness’s credibility, you are entitle to accept the whole of
a witness’s evidence or just some of it, or reject the whole of a witness’s evidence or just some of it. You are the
judges of fact.
I SUMMARY
33. Your possible opinion are as follows:
(i) Unlawful cultivation of illicit drugs : Guilty or Not Guilty
Salesi Temo
JUDGE
Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : In Person
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