State v Kumar - Summing Up [2018] FJHC 1216; HAC347.2017 (6 December 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 347 of 2017

STATE

vs.

KRITESH KUMAR

Counsel: Ms. J. Fatiaski for the State
Mr. A.K. Singh for the Accused

Date of Hearing: 23^rd, 26^th, 27^th and 28^th November 2018
Date of Summing Up: 06^th December 2018

SUMMING UP

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
2. You are to determine the facts of the case, based on the evidence and then advice the court your opinion. That involves deciding what evidence you accept or refuse. You will then apply the law, as I now explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
3. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard any comments on facts unless it coincides with your own independent opinion.
   
4. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, and the documents and materials, tendered as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The opening address by the learned counsel for the prosecution is not evidence. The purpose of the opening address is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
5. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinion from your consideration. You must have regard only to the testimony put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinion when I deliver my judgment.
   
6. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.

Burden and Standard of Proof

7. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence.
   
8. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
   
9. The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
   
10. However, in certain instances, the law requires the accused to prove certain elements or facts of the offence, which is known as reverse onus. If the law places the legal burden on the accused to prove certain elements or facts of the offence, then the accused is required to prove them on balance of probability.
    

Information

11. The accused is charged with three counts of Unlawful Possession of Illicit Drugs, contrary to Section 5 (a) of the Illicit Drugs Control Act, and one count of Unlawful Cultivation of Illicit Drugs, contrary to Section 5 (a) of the illicit Drugs Control Act. The particulars of the offences are before you therefore I do not wish to reproduce them in my summing up.
    
12. The prosecution alleges in the first count, that the accused was found in possession of 1.4 kilograms of Methamphetamine. The second count alleges that the accused was found in possession of 0.30 grams of Indian hemp, botanically known as cannabis sativa. In respect of the third count the prosecution alleges that the accused was found in possession of 0.8 grams of Indian hemp, botanically known as cannabis sativa. In the fourth count, the accused is alleged that he has cultivated one plant of Indian hemp, botanically known as cannabis sativa.
    
13. Accordingly, the prosecution is required to prove following main elements in respect of the first, second and third count of the unlawful possession of illicit drugs, that:
    
    1. The accused,
    2. Without lawful authority,
    3. Found in possession,
    4. Illicit Drugs, namely Methamphetamine in respect of the first count and cannabis sativa in respect of the second and third counts respectively.
       
14. The main elements of the fourth count as charged are that:
    
    1. The Accused,
    2. Without lawful authority,
    3. Cultivated one plant of illicit drugs known as Cannabis Sativa.
       
15. In respect of the first element, the prosecution is required to prove beyond reasonable doubt that the person who was found in possession of the said illicit drugs, namely methamphetamine and cannabis sativa in respect of the first three counts and also cultivated that one plant of cannabis sativa in respect of the fourth count, was the accused.
    

Possession

16. A person is in possession of an illicit drug if it is in his actual physical custody or control, with the knowledge or belief that the substance is an illicit drugs. The knowledge should not necessarily be that the substance is the same illicit drugs as charged. It is sufficient that the person had the knowledge or the belief that the substance in his actual physical custody or control is some illicit substance.
    
17. Please note that you should not equate ownership with possession. In other words, one may possess an object even though one does not own it. A mere presence of a person in the vicinity of an object is not itself possession of it. e.g. if a person is invited for dinner to a friend‘s home, he is not in possession of the objects in that home simply because he is there and knows that the objects are there. The objects are not in his physical custody and he has neither the intention nor the authority to exercise control over them.
    
18. Accordingly, the prosecution is required to prove beyond reasonable doubt that the accused knowingly had these illicit drugs in his actual physical custody or control and had the knowledge that these substances were illicit drugs.
    
19. 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.”

20. Accordingly, Section 32 has provided a presumption of possession. If you are satisfied beyond reasonable doubt that the prosecution has proven that:
    
    1. The white substances found in the house of the accused is an illicit drugs,

namely methamphetamine, and the dried leaves found in the house of the

accused are illicit drugs, namely cannabis sativa, and

2. The house is under the control of the accused,
   

21. Then you are allowed to presume that the accused was in possession of those illicit drugs, namely methamphetamine and cannabis sativa, until the contrary is proved by the accused. Under such circumstances, the legal burden of proving that the accused was not in possession of those illicit drugs shift to the accused person. The accused is not required to prove beyond reasonable doubt that he was not in possession of those illicit drugs. He is only required to prove it balance of probability. Under the balance of probability, the accused has to prove that it is probable that he was not in possession of these drugs, which means his version is more likely than not.
    
22. According to the admitted facts, the accused does not dispute that the Police seized a clear plastic containing white powder from a wooden cabinet in the accused’ house. The portion of the cabinet where the said plastic was found had been screwed (vide items 5 and 6 of the admitted facts).
    
23. If the prosecution has proven beyond reasonable doubt that the white powder that was found inside the cabinet is methamphetamine and the house was under the control of the accused, you are then allowed to presume that the accused was in possession of those methamphetamine, until the contrary is proved by the accused on balance of probability.
    
24. Likewise, if the prosecution has proven beyond reasonable doubt that they found 0.30 g of cannabis sativa on the 30th of October 2017 and 0.8 g of cannabis sativa at the house of the accused on the 1st of November 2017, respectively, you are then allowed to presume that the accused was in possession of those cannabis sativa, until the contrary is proved by the accused on balance of probability.
    
25. If the prosecution established beyond reasonable doubt, that the accused had the possession of an illicit drug, then the accused is required to prove that he had a lawful authority to possess such drugs. However, in this case, the accused did not adduce any evidence to prove that he had any lawful authority to possess these illicit drugs. Hence, the element of “without lawful authority” is not disputed in this trial.
    

Cultivation

26. I now take your attention to the “cultivation”. The term “cultivation” has been defined under Section 2 of the Act, as:
    

“Cultivate" includes planting, sowing, scattering the seed, growing, nurturing, tending or harvesting, and also includes the separating of opium, coca leaves, cannabis and its extracts from the plants from which they are obtained; and.”

27. The mental element is the knowledge or the belief of the person that he is cultivating any illicit drugs. The mental element can be inferred from the physical act.
    
28. If the prosecution established beyond reasonable doubt, that the accused had cultivated one plant of cannabis sativa as charged under fourth count, then the accused is required to prove that he had a lawful authority to cultivate such a plant. However, in this case, the accused did not adduce any evidence to prove that he had any lawful authority to cultivate any illicit drugs. Hence, the element of “without lawful authority” is not disputed in this trial.
    

Separate Consideration

29. As you can see, the accused has been charged with three separate counts of unlawful possession of illicit drugs and one count of unlawful cultivation of illicit drugs. It is your duty to consider each of these counts separately. If you found the accused guilty for one count, that does not automatically make him guilty for the remaining counts for which he is being charged with.
    

Agreed Facts

30. I now draw your attention to the agreed facts, which are before you. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution.
    

Evidence of the Prosecution

31. I now turn onto summaries the evidence presented by the prosecution and the defence during the course of this hearing. This is quite a long trial where number of witnesses gave evidence over a period of more than five days. Therefore, I will take sometimes to summarize the evidence presented by the prosecution and the defence and expect your concentration as it would help you in reminding yourself of the evidence presented during the course of the trial.
    
32. The first witness of the prosecution is SC Peni. He had received an information about some drugs at No 21, Vo Place, Valelevu. When he received the information, he was getting ready to commence his night shift at 7 p.m. on the 30th of October 2017. He received this information nearly thirty minutes before he commence his night shift from one of his sources. He had then gone and informed Cpl. Eloni as he is the senior officer. SC Peni has been attached to the operation team of the Valelevu Police Station. Cpl. Eloni has then summoned and arranged a team of police officers to go and raid the place. Cpl. Eloni had spoken to Resident Magistrate Ms. Hamza to obtain permission for a search warrant under Section 22 of the Illicit Drugs Control Act. Afterwards, the team, which consisted with by Cpl. Eloni, SC Anare, PC Totoka, PC Eisaki, PC Ifreni,, and SC Peni, had gone to 21, Vo Place, Valelevu.
    
33. Once the team arrived at the place, they have found the gate of the compound was locked and dogs were inside it. They had called the accused by his name. The accused had taken nearly fifteen minutes to come out. He had then opened the gate and tied down the dogs. Cpl. Eloni has introduced them to the accused and informed him that they are here to conduct a search in his house. The officers had declared themselves to the accused and then entered into the house. SC Peni said that they started to search the house from the living room. The accused was also present with them. While he was searching the house, he had notice that the wooden cabinet at the bar counter had been nailed with nails except one wooden line as it was screwed with a screw nail.
    
34. SC Peni said that he found a screw driver, lying on the floor. He took it and unscrewed the wooden wall and opens the secret cabinet. He found a white clear plastic, containing white powder inside the secret cabinet. He had then uplifted the plastic and asked the accused what was it. The accused had replied that it was battery acid. The accused had admitted that the plastic was belonged to him. SC Peni handed over the plastic containing the white powder to Cpl. Eloni. SC Peni said that he did not see anything else inside the cabinet apart from the said plastic. You could recall that SC Peni identified the plastic containing white power which is tendered as prosecution exhibit 10, as the same plastic that he uplifted from the cabinet on the 30th of October 2017. He then identified two photographs of the cabinet with the secret opening.
    
35. After handing over the plastic to Cpl. Eloni, SC Peni continued the search in the living room, the bedroom and the washroom. He had not uplifted anything apart from the said plastic containing with white powder. After completing the search, Cpl. Eloni had given the accused his rights and then arrested him. They have then boarded into the vehicle including the accused and gone back to the police station.
    
36. You may recall that SC Peni was cross examined by the learned counsel for the defence. He said that he doesn’t know any persons by the name of Rodney or Rakesh, who are taxi drivers. He does not know that the accused owns a taxi. SC Peni further said that he did not receive a call from one Rodney on the 30th of October 2017. SP Peni said that he never inquired the accused about $40,000. He denied the suggestion that he unscrewed the screw nail by his hand. When he took out the plastic from the cabinet, he did not see or find any coca cola bottle with liquid inside it. According to SC Peni, he had handed over the item that he found during the search to the senior officer of the team, that was Cpl. Eloni. He has not put his name or any marked on the said plastic. However, by the look of the plastic that was shown to him during the trial, SC Peni could identify that it was the same plastic that he uplifted from the cabinet at the house of the accused. There was no photographer to take the photos of the scene during the search.
    
37. You have heard that the learned counsel cross examined SC Peni about the statement he made to the police regarding this search. SC Peni has not stated in the statement that he surrendered everything to the accused before he started the search. He has searched the second bedroom and not the bedroom used by the accused. When he searched the bedroom, the accused was standing near the door. There were few officers with him when he searched the bedroom. He can’t recall whether fleet No 301 came to the scene with SC Paula. Cpl. Eloni had prepared the search list after the search was conducted. He has stated in the statement based on his own estimation that the weight of the plastic with the powder is about 2 k.g.
    
38. The second witness of the prosecution is DC Pita. He said that he was not on duty on the 30th of October 2017. He was at his police barrack when Cpl. Eloni and SC Peni called him to assist them for a raid. It was in the evening, though he could not recall the exact time. He then went to the police station, where Cpl. Eloni had briefed the team about the information received by SC Peni. After the briefing, they had gone to the location. You may recall that DC Pita explained how they have reached to the location and entered into the house of the accused. He had seen SC Peni had opened the secret cabinet and uplifted the clear plastic containing white powder. DC Pita had then looked inside the cabinet and found nothing inside it apart from the said plastic containing white powder. The accused was also present when SC Peni found the said plastic from the cabinet. After that the team had continued their search. DC Pita has searched one of the two bedrooms and found few dried leaves inside a drawer in the room. Those dried leaves were scattered inside the drawer. He had taken those dried leave onto his palm and shown it to Cpl. Eloni. He has then handed it over to Cpl. Eloni. Apart from that, DC Pita has not found any other items during the search. Having found those dried leaves, he had continued his search in the washroom. Cpl. Eloni then arrested the accused after explaining him his rights. Cpl. Eloni had made a search list and gave it to the accused to sign it. The accused was then escorted to the police station.
    
39. You have heard DC Pita explained about the entries of the station diary of the Police Station in respect of this operation. According to the entry number 141, the operation team had left the station at 18.45 hours for this raid. The entry No 166 states that the operation team had brought the accused to the police station at 20.16 hours.
    
40. During the cross examination, DC Pita said that entry number 153 of the Station diary has the cross reference to entry number 161. He said that SC Peni and DC Aisake went straight to the kitchen when the rest of the officers were in the living room. According to the evidence of DC Pita, the house of the accused was fully searched on the 30th of October 2017.
    
41. You have heard the learned counsel for the accused cross examined DC Pita regarding the statement he made to the police. DC Pita has not stated in his statement that he searched the bedroom. He said that their main concern at that time was focused on the white powder. He had made another statement on the 20th of February 2018 in respect of the dried leaves. He said that the finding of dried leaves was not given much importance on the day. He was present when the search list was made. He has seen the accused had signed the search list. DC Pita said that he stated in his second statement that he found 2 x clear plastic containing dried leaves at the house of the accused. He then said what he said in his evidence in chief that he found dried leaves scattered in the drawer is not correct. During the re-examination DC Pita said that he was confused with some other raids that why he said as such. He said what has been recorded in his second statement is correct in respect of finding of dried leaves. According to DC Pita, there were CCTV cameras inside the house.
    
42. The third witness of the prosecution is DC Daniela Turaga. He has conducted the caution interview of the accused. The recording of the caution interview had commenced on the 31st of October 2017 and concluded on the 1st of November 2017. The caution interview was conducted at the Valelevu police station. It was recorded in a laptop computer. The accused signed the record of the interview after it was concluded and copies were printed out. The caution interview was conducted in English language and the accused had given answers which have been recorded in the record of the interview. DC Daniela said the document referred in question number 46 was given to him by Cpl. Eloni. Moreover, Cpl. Eloni gave him the white crystal which he referred to in question 47 of the record of the interview. The white crystal was packed in a white plastic and sealed with the forensic lab tape. The tap was red. You may recall DC Daniela identified the plastic containing white substance (PE 10) as the same crystal which he referred to in question number 47 of the record of the interview. DC Daniela said that he went for reconstruction of the scene with a search team led by I.P. Isoa Native.
    
43. During the cross examination, DC Daniela said that he could not recall whether the plastic containing white powder had the writing of 2 k.g. HCL on it. When the accused was asked about the white crystal that was seized by the police at his house in question number 37, the accused had answered that it was battery acid. After that he had said that he got it from a friend who was working for Rapco Tyres and Automotive Supplies. That company is now closed. When the learned counsel for the defence asked DC Daniela, why did the police make no effort to get a statement from the friend, DC Daniela said that the accused answered that he does not know the name of the friend and also the company that he worked for has been closed. DC Daniela denied that the accused said the name of the friend as Vikash, who works for Pacific Battery.
    
44. At the conclusion of the recording of the interview the accused was given an opportunity to read back the record of the interview, which he opted not to read. He then asked the accused if he wants to make any changes, alter or add anything to the record of the interview, for which also the accused said ‘no”.
    
45. The fourth witness of the prosecution is DC Inoke Tuilola. He was the witnessing officer of the caution interview of the accused. He was present during the recording of the interview. He had then accompanied the accused, the interviewing officer and some other officers to attend the reconstruction at the house of the accused. When they reached there, officers from the forensic were also present at the scene to take photos of the reconstruction. After the reconstruction, the officers had searched the house again. They had the search warrant.
    
46. During the search, DC Inoke had searched the one of the bedrooms of the house and found a plastic containing some dried leaves under the bed. He had shown the plastic to the accused and then seized it. DC Inoke had then continued his search in the house. He had then gone out of the house to get some fresh air. When he came out of the house, he found a plant believed to be marijuana, was planted near the fence of the compound. He uprooted and took it to the police station and handed it over to the investigation officer.
    
47. During the cross examination, DC Inoke said that he saw the search warrant but did not read the contents of it. They have first done the reconstruction and then searched the house. DC Inoke knew that the house was searched by the police on the 30th of October 2017 as well.
    
48. DC Inoke has stated in his statement made to the police that he took the accused outside the house and searched around the compound, where he found a small plant. He then said what he has stated in the statement is correct and not what he said in evidence in chief, where he said that he found the plant when he went out to get some fresh air.
    
49. The next witness of the prosecution is Cpl. Eloni. He was at his home in the police barrack in the evening of 30th of October 2017, when SC Peni came and informed him at about 6 p.m, about the information that he received regarding this transaction of illicit drugs. Cpl. Eloni then went to the police station and summoned a team of police officers. According to the SC Peni, the drugs was going to be picked from the location in 20 to 30 minutes time. So the police had no time to go and properly obtain a search warrant due to the time restrain. He had then managed to speak to the Resident Magistrate Mrs. Hamza and obtained her approval to act under Section 22 of the Illicit Drugs Control Act. They have then gone to the accused’s house.
    
50. You may recall Cpl. Eloni explained how the police officers called the accused and entered into the house. Once other officers entered into the house, Cpl. Eloni had gone out of the house to check the vicinity of the house in order to make sure that his officers are safe. When he came back to the house, he had seen that the accused was seated on the sofa and SC Peni was holding a clear plastic containing white crystal in his hand. SC Peni had told Cpl. Eloni that he uplifted the said plastic from a proton of the cabinet in the house. He then took the said plastic into his custody. DC Pita then brought him another two small plastic containing dried leaves.
    
51. You have heard and seen that Cpl. Eloni has identified the plastic containing white powder and the plastic containing with dried leaves as the same plastics that were given to him by SC Peni and DC Pita on the 30th of October 2017. Having received those two plastics, Cpl. Eloni has then prepared a search list and got the signature of the accused. Cpl. Eloni explained the procedure of collecting and uplifting of items during the search.
    
52. Cpl. Eloni had taken the plastic containing white powder and the dried leaves to the police station. They all have travelled back to the police station in the same vehicle. Cpl. Eloni was seated in the back seat with the accused and either DC Pita or SC Peni was in the front passenger seat. When he reached to the police station, he had entered the details of items recovered in the station diary. He has locked those items in the locker in the CID room of the Police Station. Cpl. Eloni had used a key to lock the locker and kept the key with him.
    
53. On the next day, Cpl. Eloni unlocked the locker with the same key and took the items from the locker in order to take them to the Fiji Police Forensic Laboratory. He said the key of the locker was with him all the time. Cpl Eloni had taken the items to the Forensic Laboratory at Nasese. He had handed the items over to the Forensic Laboratory for the testing. On the following day, Cpl. Eloni collected the items after they were tested at the Forensic Laboratory. He got the report of the result, which has confirmed that the white powder is positive for methamphetamine. Moreover, it was further confirmed that the dried leaves were marijuana. Having collected those items from the Forensic Laboratory, Cpl. Eloni had taken them back to the Police Station. He had then given the report and the items to Cpl. Daniela who conducted the caution interview of the accused.
    
54. According to the evidence given by Cpl. Eloni, he has taken the white powder for another test. It was to test the purity level of the substance and it was done one or two months after the first testing. You have seen that Cpl. Eloni identified the plastic containing white power and the plastic containing dried leaves as the same white powder and the dried leaves that he obtained from the accused house, and then locked in the locker, and subsequently taken to the testing at the Forensic Laboratory.
    
55. Cpl. Eloni said that they had no time to arrange a photographer to take the photographs during the search due to the time constrain. However, he had later gone to the house of the accused with a lady officer from the Fiji Police Crimes Stoppers in order to take photographs of the house. The brother of the accused was present with them. However, the gate had a problem, therefore the lady officer was not able to go into the compound. Cpl. Eloni had then gone to the house and taken the photographs. Cpl Eloni had taken part in the training of basic crime photography with the Fiji Police. The photographs were taken sometimes in December.
    
56. During the cross examination, Cpl. Eloni said that the house of the accused is located five minute drive away from the police station. They have left the police station at 18.45 hours and reached the house of the accused about 18.50 hours. It was bit dark when they reached there. Cpl. Eloni had not seen or known the accused before this search on the 30th of October 2017. Cpl. Eloni had told the accused that they came to search the house for drugs before the accused opened the gate. He had then gone back and took sometimes before he opened the gate using the remote controller.
    
57. You may recall that Cpl. Eloni had explained the procedure of searching and seizing of items as stipulated under Force Standing Orders of the Police. He said that neither the signature of SC Peni nor his was placed on the plastic containing white powder. Cpl. Eloni said that he did not handover the two plastics to any other officers, specially SC Paula while they were at the accused’s house. He further said that no officer took the items away from the house and returned after an hour with the items. You have heard Cpl. Eloni had visited the accused in remand centre after he was charged and remanded for this matter. Cpl. Eloni had gone to visit the accused in respect of the breaking of the accused’s house subsequent to this incident. He can’t recall that the accused was telling that the white substance was battery acid given to him by one Vikash. Moreover, Cpl. Eloni can’t recall that the accused was telling that the CCTV camera in the house had the recording of Vikash giving the accused those battery acid.
    
58. Cpl. Eloni explained that the last column of the search list has stated that all the items listed in the list were found in the kitchen of the accused. He said that the police officers were more concern about the white substance than other items, on that day as it was the biggest amount of methamphetamine found in the division at that time.
    
59. The next witness of the prosecution is DC Eliki Kaumaitotoya. He has gone with the crime officer to the Magistrate’s Court to obtained a search warrant on the 1st of November 2017. After that he had gone to the house of the accused together with some other officers. He had then started to search the house. While searching the house, he had found a glass smoking apparatus under the bed in the bedroom. DC Inoke had then handed him over some dried leave and a plant. The dried leaves had been found inside the house and the plant had been uprooted in the garden by DC Inoke. They were wrapped together in a aluminium foil. He has then prepared the search list and included the items that were uplifted during the search. The glass smoking apparatus has been listed under item 11 and the dried leaves and plant were listed as the last item in the search list. DC Eliki explained that he put the dried leave and plant under one items as they were given to him together.
    
60. Moreover, DC Inoke had given him a plastic containing small plastics in it. He has not seen who uplifted it but was given to him by DC Inoke. DC Eliki had taken all of those items to the police station under his custody and handed them over to the exhibit writer for safe keeping. He had then taken the glass smoking apparatus, dried leave and the plant to the Fiji Police Forensic Laboratory in a subsequent date. He could not clearly recall the date exactly. Once the testing was done at the forensic laboratory, he had taken the items back to the police station. He has seen the report made by the forensic analyst in respect of the dried leaves and the plant. You have seen that DC Inoke identified those dried leaves and the plant while giving his evidence as well as the analysis report made for them.
    
61. During the cross examination, DC Eliki said that he did not mention about the making of search warrant in the statement he made to the police. He had made that statement in respect of the testing done for the glass smoking apparatus. He further said the search warrant does not contain the information of the person who found or uplifted the items. He was given a fresh plant by the DC Inoke. However, he had entered the dried leaves and fresh plant as dried leaves in the search list as all of them were given to him together. When the dried leaves and the plant were given to him, they were all placed in a plastic. The forensic laboratory has separated the plan, the foil and the loose leaves during the testing.
    
62. The seventh witness of the prosecution is SC Paula. You may recall that he was not questions by the learned counsel for the prosecution. He was presented to the defence to cross examined. He has driven a flat No 301 and taken an operation team to attend a crime scene at 19.45 hours. While he was at that location, he received a call from SC Peni informing him that they have raided a house and found methamphetamine. He had then dropped the operation team and gone to the accused house. He has seen that Cpl. Eloni had the white substance in his hand. He said that he did not take that white substance and went away to another location.
    
63. The last witness of the prosecution is Ms. Miliana Werebauinona. She is the Principal Scientific Officer at the Fiji Police Forensic Laboratory. You may recall that she explained her qualification and the experiences in the field of forensic science.
    
64. On the 31^st of October 2017, she tested crystal white substance that was received for testing. She has conducted two tests. The presumptive colour test and the Instrumental Analyst using FTIR.
    
65. The presumptive colour test conducted in two stages. You may recall that she explained the manner she conducted this test. The first test under the presumptive colour test suggested that the sample was methamphetamine and the second test under presumptive colour test confirmed that the sample was methamphetamine. The finding was then recorded in the report. The weight of the substance was 1424 g or 1.4 kg. She has measured the weight of the substance. The substance was given to her in a clear plastic bag and was labelled with prisoner’s property. After the testing was done, the substance was repacked in the forensic laboratory clear plastic and sealed it with evidence tap and job number. She recognised PE 10 as the same substance that she tested and then packaged though she could not find the job number on it. These substances were submitted to the laboratory by a police officer.
    
66. On a subsequent date, she has conducted a purity test in accordance with the United Nations Drugs and Crimes Office recommendations in order to measure the purity level of the substance. After the test, she found the purity level was less than 40%. The remaining 60 % was impurity.
    
67. Moreover, Mrs. Mili said that she tested some dried leaves as well. The dried leaves were also accompanied with the white substances. Having tested the said dried leaves, it was confirmed that they are marijuana. The report of the said test is tendered in evidence as prosecution exhibit 12. The weight of the said dried leaves is 0.30g.
    
68. On the 2nd of November 2017, she has received another sample of drive leaves and a plant to test. The dried leaves and the plant were tested positive for marijuana. The height of the plant is 12.7 c.m.. The weight of the plant is 0.9g. The weight of the dried leaves is 0.8g. The report of the said test is tendered in evidence as prosecution exhibit number 13.
    
69. During the cross examination, Mrs. Mili said that she could not confirm that the white substance marked as PE 10 is the same substance that she tested on the 31st of October 2017 as the job number she put on the package is not seen on it. Mrs. Mili has taken the weight of the substance by herself. She could not recall that the plastic bag had the writing of HCL on it. The samples were handed over to one of her staff Venti Chandra at the Forensic Laboratory. Mrs. Mili confirms that those samples were then came to her for the testing on the 31st of October 2017 and 2nd of November 2017 respectively. The samples that she received for testing on the 2nd of November 2017 were wrapped in aluminium foil.
    
70. Mrs. Milli said that HCL is one of the substances that is used to formation of methamphetamine.
    
71. At the conclusion of the prosecution’s case, the accused was explained about his rights in defence. The accused opted to give evidence.
    
72. The accused in his evidence said that he was at home in the evening of 30th of October 2017. During the day he had driven his taxi. When he came home, he had an argument with his driver Rodney, who drives his taxi, over the income of the taxi. His gate is an electronic one and could be opened with a remote key. He had three remote keys and the three sets of house keys. One of the remote keys and the house key were with Rodney. He had been living in this house with his two kids. The elder one is nine years old and the younger one is five years old. His wife has passed away in 2013. On the 30th of October 2017, his two children have gone to visit his in-laws.
    
73. After his argument with Rodney, the accused had gone to drop his housegirl. Upon his returned he has called another driver, Rakesh to come and drive his taxi. When the driver came, he had given taxi to this driver. The accused had advised the driver to drive the taxi till midnight and bring it back. The accused had given one of the three remote keys and the house keys to this driver when he took the taxi.
    
74. The accused said that one of his friends Vikash had given him a plastic on which HCL 2 kg was written, containing battery acid, and a coca cola bottle filled with liquid. Vikash had told him to mix the battery acid and the liquid together and put that into the battery of the car. The accused had kept this plastic and the bottle of liquid inside the wooden cabinet, which was uplifted by SC Peni on the 30th of October 2017.
    
75. The accused explained that he kept the plastic and the bottle of liquid inside the cabinet and locked it with a screw nail in order to keep it away from his two children as they could have accidentally drink it. The accused had informed the police when they found it during the search.
    
76. According to the accused, he had told Rodney and Rakesh, the new driver about the battery acid and the bottle of liquid and the place where he has hidden it. Sometimes the drivers used to stay at his place overnight if they bring the taxi in the night. They then stay in his visitor’s room, which is the first room after the living area. The accused said that he believed that the plastic continued battery acid when Vikash gave him the said plastic.
    
77. The accused was sleeping when the police came and called him in the evening on the 30th October 2017. He had then checked who was calling him through his CCTV camera and found that the police officers were at the gate. He had then gone to the gate and asked them the reason. When the police informed him that they came to search his house for drugs, he had gone back to get the remote key. He then realized that he had left his remote key and the house key in his car as he drew the taxi during the day. The accused had then gone to look for the extra remote that was at the visitor’s room. He had looked for the key in the drawers and found it. He had taken about ten to fifteen minutes to find the key and open the gate. Before he opened the gate, he had tied down the two dogs.
    
78. When the police came to his house, SC Peni had asked him about $40,000. Then the police had told him to sit in the sitting room and SC Peni had straight away gone to the cabinet and removed the screw nail with his hand and uplifted the plastic containing battery acid. SC Peni did not use any screw driver to unscrew the nail. Once they uplifted the battery acid, the accused had told them that they are battery acid given to him by Vikash. The accused then saw SC Paula came and took the substance with him. The accused was then taken to police station. The police officers had turned his house upside down during the search.
    
79. The accused said how can the police found more dried leaves and a plant on the 1st of November 2017 when they made a thorough search on the 30th of October 2017.
    
80. In respect of the caution interview, the accused said that he did not give his answers voluntarily. He has not read the caution interview when the interviewing officer had offered him to do so. The accused said that he thought that the interviewing officer had written down what he had said in his answers. The accused said that he informed the police that the battery acid was given to him by Vikash, but the police have not properly taken it down in the record of the interview. The accused said that he never cultivated the marijuana plant.
    
81. During the cross examination, the accused said that there were other places in the house that are more suitable to hide the battery acid and the bottle of liquid than inside the cabinet. He said that he cannot keep it in the taxi, as it is a public transport vehicle. The accused does not know the surname of Vikash. The accused said that the search list prepared by DC Eliki on the 30th of October 2017 has accurately reflected the items that were uplifted from his house.
    
82. I have summarized the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.

Analysis and directions

83. In view of the evidence presented by the parties and the agreed facts, the following facts are not disputed by the parties, that;
    
    1. The house at No 21 Vo place is belonged to the accused,
    2. The accused had been living in this house with his two children on the 30th

of October 2017,

3. The police had seized a clear plastic containing white powder from a

wooden cabinet in the accused’s house,

4. The portion of the cabinet, where the said plastic was found, had been

screwed shut,

84. Accordingly the main issues that need to be determined in respect of the first count are;
    
    1. Whether the white substance found in the house of the accused is

methamphetamine,

2. Whether the accused has the possession of that white substance,
   

85. Accordingly, you have to satisfied beyond reasonable doubt that the white substance that was found in the house of the accused, was taken to the Forensic Analysts to test it. The forensic analysts then found the white substance is methamphetamine. In order to prove it, the prosecution presented the evidence of SC Peni and Cpl. Eloni. SC Peni has found this substance inside the cabinet and uplifted it. He has then handed it over to Cpl. Eloni. You may recall the evidence of Cpl. Eloni, where he explained how he took the substance to the police station and kept it in the locker. He had then taken the substance to Forensic Laboratory on the following day. Mrs. Mili in her evidence said that she received the substance which was received by one of her staff members.
    
86. The accused in his evidence said that that white substance was given to him by a friend saying that it was battery acid. Upon uplifting the white substance from the cabinet, SC Peni gave it to Cpl. Eloni. Cpl. Eloni then handed it over to DC Paula, who came later into the scene. DC Paula has then left the house with the substance to somewhere for about an hour. The police had further searched the house for about an hour after DC Paula left the house with the substance. He was then taken back to the police station.
    
87. You have heard the evidence of DC Paula, where he denied that he took the white substance to some other location and retuned after an hour. In order to determine this issue, you have to take into consideration certain entries in the station diary. Specially entry No 153, where it states that the fleet no 301 driven by Paula has left the police station at 19.45 hours. The entry number 153 has cross referred to entry number 166, which states that the accused was brought to the police station at 20.16 hours. Accordingly, the accused was brought into the police station thirty one minutes after DC Paula had left the police station.
    
88. Madam and Gentleman assessors, you have heard that the learned counsel for the defence cross examined Mrs. Mili, the principle scientific officer at the Fiji Police Forensic Laboratory regarding the purity level of this substance. According to the result of the purity test, the white substance contains less than 40% of methamphetamine. However, the purity level of the substance has no relevance at this stage. Only issue that you have to satisfy is whether this white substance contains methamphetamine.
    
89. The learned counsel for the defence cross examined the witnesses of the prosecution, who involved in uplifting this white substance and transporting it to the police station and then to the forensic laboratory, whether they have made any specific marking or naming on the plastic in which the white substance was packed. SC Peni and Cpl. Eloni said that they have not done such marking.
    
90. Another important issue, that I wanted to address you, is relation to the evidence of Mrs. Mili, where she said that she cannot confirm that the package marked and tendered in evidence as prosecution exhibit 10, is the same substance which she tested on the 31st of October 2017. Please be mindful that she did not say that she cannot confirm that the PE 10 is the same white substance that was uplifted by SC Peni at the house of the accused. Therefore the evidence of Mrs. Mili in relation to her inability to confirm the PE 10 as the same substance that she tested on the 31st of October 2017, cannot be taken into consideration when you determine whether the white substance tested by Mrs. Mili on the 31st of October 2017, is the same white substance that was uplifted by PC Peni at the house of the accused on the 30th of October 2017.
    
91. You may recall that the accused said in his evidence that the plastic, in which the white substance was found, had the writing of 2 kg HCL on it. However, the learned counsel for the defence did not put that issue to SC Peni and Cpl. Eloni. The learned counsel only question DC Danieal and DC Eliki about this.
    
92. It is a rule of evidence in criminal trials that if one party is going to present a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given an opportunity to comment on them. The failure to such questions could be used to draw an inference that the accused did not give that account of events to his counsel. That in turn, may have an adverse bearing on whether you accept what the accused said on that particular point or event as true and credible evidence.

However, before you draw such an inference you should consider other possible explanations for the failure of counsel to put questions about such different versions.

93. If you are satisfied beyond reasonable doubt that white substance found at the house of the accused is contained methamphetamine, then you can presume that the accused was in possession of said illicit drugs unless he proved contrary as I explained before.
    
94. The accused in his evidence said that this plastic containing white substance was given to him by a friend name Vikash. He further said that he believed that it was battery acid and did not know that it was methamphetamine.
    
95. Having taken into consideration the evidence given by the accused and the evidence of the prosecution, if you are satisfied that the version given by the accused is acceptable and more probable or more likely than not, you can find that the accused has rebut the presumption of possession of illicit drugs.
    
96. Likewise, you have to consider the evidence presented by the prosecution and defence to determine that:
    
    1. Whether the police found 0.30 g of Cannabis Sativa at the house of the

Accused on the 30th of October 2017,

2. Whether the police found 0.8 g of Cannabis Sativa at the house of the

accused on the 1st of November 2017,

3. Whether the police found a plant of cannabis sativa at the compound of the

accused’s house on the 1st of November 2017.

97. In order to determine the above issues, you have to determine whether the evidence given by the prosecution and the defence are reliable and credible.
    

Evaluation of Evidence

98. You must be satisfied that you can rely on the evidence as the true, correct evidence. In order to do that, you have to be satisfed that evidence is free from mistakes, errors and inaccuracies. If you find the evidence is free from such mistakes, errors and inaccuracies, you can take the evidence into consideration as reliable evidence.
    
99. The assessment of credibility of evidence does not concern with unintended inaccuracy, mistakes or errors. It is focused on the lies or inaccurate facts that are intentional and motivated attempts to deceive. The credibility depends on the individual who gives evidence, his motivations, his relationship to and the reaction to the particular situation.
    
100. Evaluation of the reliability and credibility of evidence will assist you to determine what evidence you may accept and what part of the evidence you may refuse. In doing that, you may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
     
101. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.
     
102. It is your duty to consider the demeanour of the witnesses, how they react to being cross examined and re-examined and were they evasive, in order to decide the credibility of the witness and the evidence. Moreover, you have to consider the knowledge of the witness on the facts that he or she was testifying, his integrity, and his veracity in order to determine the credibility of the witness and his evidence.
     
103. Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
     
104. In the adversarial system, all the parties who are involved in the hearing are given an opportunity to present their respective case through the evidence, to challenge the credibility, reliability and truthfulness of the evidence adduced by the other parties and suggests their position to the other parties. You can take into your consideration whether the evidence presented by a particular witness was challenged, discredited or suggested otherwise by the opposing parties, in order to evaluate the credibility, reliability and truthfulness of the evidence.
     
105. However, you have to keep in your mind that the questions posed by the counsel are not evidence, unless they are affirmed or admitted by the witnesses in his or her answering.
     

Inconsistencies

106. You may recall that the learned counsel for the accused questioned the witnesses of the prosecution about the inconsistent nature of their respective evidence given in court and their respective statements made to the Police during the investigation. Moreover, the learned counsel for the defence in his closing address point you out the inconsistent nature of evidence given by some witnesses of the prosecution as well as inconsistent nature between the evidence of certain witnesses of the prosecution. I do not wish to highlight them as I have discussed them in my summarization of the evidence of the prosecution above.
     
107. I now explain to you the purpose of considering the previously made statement of witness with his or her evidence given in court. You are allowed to take into consideration about the inconsistencies and the omissions in such statements when you consider whether the witness is reliable and credible as a witness. However, the statement itself is not evidence of the truth of its contents. The evidence is what the witness testified in court.
     
108. The accused elected to give evidence on oath. The accused is not obliged to give evidence. He is not obliged to call any other witnesses. However, the accused decided to give evidence. Therefore, you have to take into consideration the evidence adduced by the accused when determining the issues of fact of this case. Accordingly, it is for you to decide whether you believe the evidence given by the accused. In order to do that you have to determine the reliability and credibility of the evidence given by the accused as well. Therefore, you can take into consideration the contradictory nature of the evidence of the accused if any such evidence exists.
     
109. You may recall that the accused said that he has three remote keys for the gate and three sets of house keys. He then said that one of the remote keys was with Rodney with whom he had an argument in the early part of the afternoon on the 30th of October 2017. He then called Rakesh, and gave him the taxi to drive. He had given the second remote key to Rakesh. The accused then said that, when the police was at the gate and wanted to come into the compound to search for drugs, he realized that he had left his remote key and the house key in the taxi as he drew the taxi during the day. According to this evidence, you can determine whether the accused had a remote key to open the gate when the police came. The accused then said that he went to visitor’s room and search for the extra key in the drawers for about 10 to 15 minutes. He then opened the gate. Finally it is your duty to determine the reliability and credibility of the evidence and make your opinion on which evidence you accept, or not.
     
110. If you find any inconsistency or omission in the evidence given by a witness with the statement that he had made previously on the same issue, or within his own evidence or between the evidence of two witnesses, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.
     
111. In doing so, you must take into consideration that most of the humans do not have a photographic memory. Memory is fallible. A person could not be able to remember each and every piece of detail.
     

Caution Interview of the Accused

112. I now draw your attention to the statement made by the accused in his caution interview.
     
113. The prosecution presented the record of the caution interview that the police was conducted with the accused in evidence. The prosecution states that the accused only told the police that the white substance, which was found in the cabinet, is battery acid and given to him by a friend. The accused has not given the name of the friend as the accused does not know the name. The place of the employment of the said friend is also now closed. The accused claimed that he told the police that the friend name is Vikash, but the police has not recorded it in the interview.
     
114. In order to determine whether you can safely reply upon what made by the accused person in the caution interview, you must decide two issues. Firstly, did the accused person in fact make such statement? Having considered the evidence presented during the course of the hearing, if you are not satisfied or not sure of that the accused has actually made such statement in his caution interviews, you must ignore the that statement made in the caution interview.
     
115. Secondly, if you are satisfied, that the accused has made such a statement in his caution interview, then it is for you to decide whether the contents of the caution interview are truthful, and what weight you give them as evidence. It is for you to decide whether you consider the whole of the caution interview or part of it or none of it as truthful and credible. You must consider all other evidence adduced during the course of the hearing in deciding the truthfulness and the reliability of the confessions and it acceptability.
     

Final Directions

116. Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the first count as charged, you can find the accused guilty for the first count.
     
117. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the first count as charged, you must find the accused not guilty for the first count.
     
118. Likewise, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the second count as charged, you can find the accused guilty for the second count.
     
119. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the second count as charged, you must find the accused not guilty for the second count.
     
120. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the third count as charged, you can find the accused guilty for the third count.
     
121. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the third count as charged, you must find the accused not guilty for the third count.
     
122. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the fourth count as charged, you can find the accused guilty for the fourth count.
     
123. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the fourth count as charged, you must find the accused not guilty for the fourth count.
     

Conclusion

124. Madam and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
     
125. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
     

R.D.R.T. Rajasinghe

Judge

At Suva
06^th December 2018

Solicitors
Office of the Director of Public Prosecutions for the State.
A.K. Singh Law for the Defence.