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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 05 of 2016
STATE
v
NAVINESH NIRMAL PRASAD
Counsels: Mrs. D. Kumar for the State
Mr. A. Sen for the Defendant
Dates of Hearing : 16, 17, 18, 19, 20 July 2018
Date of Summing Up : 23 July 2018
SUMMING UP
1. Madam and Gentlemen assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.
2. As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.
3. Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case, they have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.
4. You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.
5. On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until he or she is proved guilty.
6. The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.
7. Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else.
8. The accused has been charged with one count of possession of illicit drugs and two counts of cultivation of illicit drugs. You will understand that the possession count relates to the matters found in the bedroom of the accused and the two cultivation counts relate to the plants found in the two sites described by the prosecution witnesses.
9. In order for you to find the accused guilty of the first possession count, you must find so that you are sure that:
10. Similarly for the cultivation counts you must find, so that you are sure that:
11. Cultivation includes planting and growing of plants.
12. The evidence for these counts led by the prosecution was given to the Court by 8 Police witnesses and one Police chemist who analysed the items seized.
13. The Police told us about going on a raid to the home of the accused and his mother in Navudi, Seaqaqa. They said it was early morning, at about 6am. There was some variance between the witnesses as to the actual time, but it was generally agreed that it was about daybreak. In any event time differences do not affect the matters which you have to decide.
14. The leader of the operation was Bhawan Singh who at the time was the Northern Division Police Commander. It was the 7th February 2016 and pursuant to information that he had received he briefed a team of 13 to 16 officers at the Seaqaqa Police station before leading them to the accused’s house. They arrived in the area sometime between 4.30am and 5.30am. They parked their 4 vehicles about 1 km away and then walked to the house. In this way they were able to surprise the suspect. It was daybreak when the search warrant was executed, close to 6am. The accused was there along with his mother and wife. He had asked Corporal Dharmend to execute the warrant but he didn’t see him do that because he remained at the back of the party of officers. The “front line” officers were Dharmend, P.C. Harnam and P.C. Arvin Maharaj. On entering the house, the suspect (accused) and his family were asked to stay in the sitting room while the house was searched. Before the search he was told the nature of the raid and search. The witness later learned that a small quantity of dried leaves was found in the accused’s bedroom. Nothing of interest was found in the compound. The accused was then willing to show the Police where he was growing plants, which was at a distance from the house. The witness instructed the team to accompany the accused to that place. He stayed behind with the vehicles. He waited 2-3 hours for the team to return. They returned with uprooted plants which were loaded onto a Police truck. The party then all returned to Seaqaqa Police station where the accused was handed over. This witness told the officers there to prepare to interview the accused under caution and to give him breakfast. They were to organize an analyst to come and test the plants, to test for weight and nature of the substance. The witness then left the station.
15. In cross-examination he denied assaulting the accused by slapping him and pushing his head against a wall.
16. Ladies and Sir, the second prosecution witness was Harnam Singh, and I ask you to put his evidence from your mind. For legal reasons that need not concern you, he was not a competent witness. If you do remember any of his evidence, you are to discard it.
17. Corporal Dharmend told us that he was given the search warrant by PW1. He executed the warrant by showing it to the suspect at his house. He explained it and told him that he was suspected of growing marijuana and that they were going to search his house. The search was done and items were seized. Outside they found a half gallon drum with soil in it and the accused told him that he used that for germinating seeds. He told of the trek to the land where 11 big plants were found. The accused said that there was another place and he pointed out 8 more baby plants. The plants were uprooted and carried back to the vehicles. The witness said that the accused was very co- operative. The plants were taken back to the station and into the Police Station. The accused was interviewed under caution at the station and Dharmend told us that he was the witness to this interview, conducted by PC Arvind. In the course of the interview the accused admitted that he had planted marijuana. He told us that there was nothing improper done to the accused, such as threats, assaults or promises held out at any time, during the search and during the interview. The Corporal produced the record of the interview in evidence. I will later tell you how to approach this record in your deliberations.
18. In cross-examination, Dharmend admitted that he had never mentioned the half gallon drum in the statement he originally made about the search.
19. PC Nadan (PW4) was one of the officers who searched the bedroom of the accused. He said that the accused and his mother were in the room at the time. The search took 10 minutes. He found a plastic bag on top of the mosquito net, a bag which contained dried leaves. He gave the exhibit to Corporal Dharmend.
20. From the house he went with the others to the suspected “farm”, the accused showing the way. On arrival the accused pointed out big green plants, saying that it was marijuana. The plants were pulled up. The accused said that there was another site and took the Police there where he showed them more plants which he said were marijuana. Two officers carried the plants back to the Police vehicles and the accused was with them.
21. PC Kris (PW5) was the officer detailed to escort the accused, that is to stay with him all the time the Police were there. He said that he saw Cpl Dharmend show the search warrant to the accused and the latter agreed to the search. PC Kris was in the bedroom standing near another door while Nadan was searching. The mother was in the room but the accused was sent back to the sitting room. PC Nadan found something of interest. Kris was then told to accompany the accused on a “farm” search. The accused led the team and he was co- operative. At the first place there were green plants planted in rows surrounded by a gold fence. These pants were uprooted and carried to the second site with the accused leading them. All of the plants were carried back to the vehicles and then to the station with the accused himself. The plants were handed over to the exhibits officer.
22. PC Shivnil (PW6) saw Cpl Dharmend show the search warrant to the accused and the witness was instructed to be the second officer to search the bedroom, along with PC Kris and PC Nadan. The accused’s mother and his wife were present. He found a small amount of seeds wrapped in a tissue and some leaves wrapped in paper; both items found in the wardrobe. He gave both items to PC Arvind the Investigating Officer. The leaves were dried leaves. The accused confessed that he had planted marijuana and he was willing to take the Police there. On seeing plants the accused said he planted them and that they were marijuana. The plants were uprooted and taken back to the vehicles. At the station they were handed into the custody of PC Arvin. No force was used to make the accused point out the plants.
23. PW 7 was the lady officer who took photographs with a mobile phone. These photos were not properly developed, nor were they produced in evidence. I direct you to take no notice of the poorly developed black and white photos that you have been shown. Mr Sen has shown you one of those photos telling you that the accused looks frightened. He has no right to give that opinion evidence during trial. If the photos were allowed in evidence (which they are not) it would be for you to make up our own minds what the photos depict.
24. PC Arvind was PW8. He was in the sitting room during the bedroom search and could not see the search. Dried leaves and seeds were found and they were handed over to DPC Bhavan. Arvind admitted that the seeds and dried leaves found in the bedroom are now missing. They were in a clear plastic bag provided by the analyst.
25. The accused led the Police to the “farm”. He pointed out plants and said that he planted them. He said that they were marijuana. There were about 19 plants seized and they taken back to the station and kept there for analysis. He identified and produced the plants (now dried) in Court and read out the exhibit number assigned to them by Cpl Dharmend.
26. PW8 interviewed the accused with Dharmend being the witness. The interview started on the 7th February 2016 and was completed the following day. It was conducted in English at the choice of the accused. It was signed in places by the accused and by himself and by the witness Dharmend. He identified the record of interview which had been produced by Dharmend. He told us that there was no force, no assaults nor any threats used to make the accused make the admissions that he did. He was given meals at appropriate times and was treated well while he was in custody.
27. In cross-examination he said that he saw the analyst cutting the roots off the plants; he also said that the accused was standing in the bedroom doorway during the search of that room.
28. It is at this stage Ladies and Sir, that I must direct you how to deal with the record of interview that is before you. You are aware that it purports to show admissions by the accused that the dried leaves wrapped in paper and the seeds were his. He said he knew that the seeds were marijuana seeds. He went on to say that he had planted seeds in the half gallon and had replanted them after two weeks in the bush. He planted 11 plants of marijuana and he would visit every three weeks to check on them. In a different place he had planted 8 plants; altogether he was tending 19 plants. He was shown the 19 plants uprooted by the Police and he said that they were his and he had planted them.
29. You are aware of the accused’s case. He says that while he willingly gave the Police personal information about himself and his land, he did not provide the answers in the interview that have been attributed to him ; answers which admit that he planted the 19 plants and that he knew that they were marijuana.
30. Your first task then, assessors, is to decide whether those answers are true or not. Was he told to give those answers or were they actually the answers that he gave? If you think that they are not his answers and that they were dictated by the Police, then you are to discard the interview and not use it as evidence.
31. However, if you think they are his answers and that they are true, then there is a further step you must take. The accused says that he was assaulted at the house and on the farm and as a result he was frightened and scared and he gave answers to the questions that he would not have given if he was in a normal state of mind. If you think that is the case or might be the case, then again you are to ignore the interview and judge the case on the other evidence available to you.
32. So in summary: if the confessions are dictated by the Police, ignore the interview.
33. Then if you think he was made to answer through assaults and threats, ignore the interview.
34. If at the end of that exercise, you are sure that the answers are the accused’s and that they were not obtained by force or threat, then you may use the answers in the interview as evidence in the normal way and place whatever weight on it you wish.
35. The final witness for the Prosecution was the lady scientific officer who manages the Fiji Police Forensic Chemistry Laboratory. Part of her work is to identify and analyse material which is suspected to be illicit drugs. She told us of her impressive qualifications for such work and says she has dealt with over 1,000 cases of identification and analysis.
36. She described the methods she uses to identify the illicit drug component of an exhibit and how she extracts samples from material to be later tested in the laboratory.
37. On the 7th February she went to Seaqaqa Police Station to examine leaves, plants and seeds. She took samples from the material and on the 9th February she tested these samples, compiled a report which was produced in Court.
38. The first analysis was on the dried leaves and seeds found in the accused’s bedroom. She found that the total weight of Seeds was 1.3 grammes and of dried leaves 9.3 grammes; both exhibits testing positive for cannabis sativa. The total weight of the 19 plants was 7087.9 grammes and they too tested positive for cannabis sativa.
39. Mr Sen tested the witness’ methods and knowledge in a long and detailed cross-examination which you may or may not have found to be helpful. It was relevant however to learn that she was meticulous in ensuring that her scales were accurate before weighing any material and that she did that on the day she weighed the material at Seaqaqa.
40. Well assessors that was the end of the prosecution case and you heard me tell the accused what his rights are in defence. He could remain silent or he could give evidence. He chose to give evidence. Now I must direct you that in giving evidence the accused does not have to prove anything. The fact that he gives evidence does not relieve the State from proving their case to you so that you re sure. Even if you don’t believe a word he says, it does not make him guilty if the State has not proved its case beyond reasonable doubt.
41. The accused gave sworn evidence. He is 25 years old and married. He earns his living by raising sheep and goats. He has a clear record. You will take that clear record into account when deciding whether he is guilty or not. You might think that somebody who has never been in trouble with the law is less likely to commit any offence.
42. On the 7th February 2016 at about 4.30-5am he was sleeping but awoke to hear somebody calling his name. He opened the door to see a lot of policemen in his compound. They came forward and PC Harnam pushed him aside, came into the house and immediately handcuffed him. Nothing was said to him and no paper or document was shown to him. He was told to sit on the settee. It was still dark, but the solar light was on. There were about 12-20 officers altogether. He felt afraid. They said that they were going to search the house. He said nothing. They showed him a small plastic bag with something inside. He had never seen that before and didn’t know whose it was. It was found in the bedroom. He was on the settee during the search and couldn’t see the search in his bedroom. When he said he didn’t know who it belonged to, PC Shivnil slapped him and pushed his head to the wall.
43. The officers then told him that they were taking him to a place. They did that with PC Harnam leading the team and PC Kris holding his hand. He was still handcuffed. He had no idea where they were going but they took him to a bushy area where there were some plants. That area was in Nawai – there were 2 houses there.
44. They asked him what the plants were and he said he didn’t know. PC Harnam then punched him in the stomach and kicked his back. He was a bit afraid he said. He stood there while they up-rooted the plants. They then took him to a second place, Harnam still leading. At that place they took photos. There were some small plants - he said that they were not his and he never said that they were marijuana plants. Those plants were also uprooted. They took him back to the vehicle. He had never been to those two places before and he never saw the plants after they were uprooted.
45. The accused was taken to Seaqaqa Police Station. He was frightened because it was the first time he had been handcuffed and the first time he had seen Police. He says that when he arrived at the station he was put into a cell, then they took him out to be interviewed. He never saw the plants. In the bure he saw the team having breakfast: they offered him some but it was chicken and he is a vegetarian. He had no other breakfast. He was told by the Police before the interview that whatever they say he must agree or he would be assaulted.
46. The accused said that he was poorly educated. He failed Form 4 twice and his English is very poor. PC Arvind, interviewing him spoke in Hindi but wrote in English. They told him what to say throughout. They never brought the plants in to show him, even though that is written in the interview. All the things about buying the seeds and growing the plants are not true. He never went every three weeks to tend the plants.
47. They told him his right to see a lawyer – he said he wanted to see one but they said you will see one later in Court.
48. The interview was read over to him in English. He didn’t understand it. They told him he had to sign it. The contents are not true and the plants found were nothing to do with him and he doesn’t know if they were marijuana plants.
49. He was produced in Savusavu Magistrates Court the following day (9th February). .
50. Ladies and Sir, that is a summary of what I consider to be the important parts of the accused’s evidence. Anything that I have not referred to and you think is important you will give weight to that as you think fit.
51. The accused called no witness and that was the end of the accused’s case.
52. The most important evidence in the prosecution case is the record of interview of the accused, which appears to be a voluntary
admission to growing the 19 plants and a partial admission to the items found in his bedroom. As I have earlier said, to rely on
that record you must find first that the answers are his answers and he gave them not as a result of assault or threat.
53. As to the exhibits in the bedroom, the subject of count one it is for you to decide wither he possessed them all or not. He says that only the seeds and the leaves wrapped in paper are his and not the leaves in the small plastic bag. That is another matter for you to decide. Bar in mind that it was his room and his mosquito net where that bag was found. The law says that if he is found to be in possession of anything that is an illicit drug, then he is deemed to know that.
54. There is one last thing that I must discuss with you.
55. Mr Sen says that there is a gap in the evidence and that the State has not proved to you the whereabouts of the items seized at all times. He submits that there is no evidence that the exhibits were delivered to the laboratory in Suva and that they were sent back to Seaqaqa and therefore the plants and exhibits you have seen in Court may not be the ones that the Police seized on the 7th February 2016.
56. If you think that this is true or maybe true then it would be unsafe to find the accused guilty and you would return a finding of not guilty on all counts.
57. However you will bear in mind the evidence of the officers that the uprooted plants and the bedroom exhibits were taken by them back to the station and kept there until that afternoon when the scientific officer came to weigh them and take samples for testing. The State says that they were shown to the accused that morning during his interview, and he identified them as his and that they were marijuana plants. Only samples were taken for testing and a report was made from those samples. If there is a break in the chain of evidence it is only after the exhibits were weighed, and identified by the accused in his interview. The chemist has given evidence as to the nature of the exhibits following testing. What ever happened to the exhibits subsequently is irrelevant to what ever finding you will make.
58. Ladies and Sir, that is all I wish to say to you. You will retire now and consider your opinions. Your possible opinion on each count is guilty or not guilty.
59. You will let a member of my staff know when you are ready and I will reconvene the Court.
60. Just before you go I will ask Counsel if they wish me to revise or add to any matter of law that I have directed you on.
61. Counsel?
P.K. Madigan
Judge
At Labasa
23 July 2018
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