State v Ravia - Summing Up [2019] FJHC 374; HAC255.2017S (29 April 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 255 OF 2017S

STATE
vs
NEMANI RAVIA

Counsels : Mr. I. Rakaria for State
Ms. S. Prakash and Ms. N. Pratap for Accused
Hearings : 23, 24, 25 and 26 April, 2019.
Summing Up : 29 April, 2019.

______________________________________________________________________________

SUMMING UP
______________________________________________________________________________

1. ROLE OF JUDGE AND ASSESSORS

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

2. THE BURDEN AND STANDARD OF PROOF

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

100. THE INFORMATION

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

“... [read from the information]....”

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   • (i) Did the accused, on 9 June 2017, at Naqia Village, Wainibuka, in the Eastern Division, without lawful authority, cultivate 87 plants of cannabis sativa plants, weighing 34.2 kilograms?
     

5. THE OFFENCE AND IT’S ELEMENTS

9. The accused was charged with “unlawful cultivation of an illicit drug”, contrary to section 5 (a) of the Illicit Drugs Control Act 2004. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:
   • (i) The accused
   • (ii) knowingly
   • (iii) without lawful authority
   • (iv) cultivated
   • (v) an illicit 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, in 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 has lawful authority to cultivate the illicit drug. You must look at and carefully consider the total evidence, when answering the above issues.
    

6. THE PROSECUTION’S CASE

14. The prosecution’s case were as follows. On 9 June 2017, the accused, Mr. Nemani Ravia (DW1) was 36 years old. He was married with four (4) young children aged 12, 10, 7 and 5 years old. He resided with his family in their residence at Naqia, Wainibuka, Tailevu. He is a subsistence farmer by profession and plants bananas, dalo, cassava, vegetables, yaqona and other crops. He also kept domesticated animals. According to the police investigation officer, Corporal 4106 Waisea (PW4), Naqia Village was considered a “red-zone area” as far as the unlawful cultivation of cannabis sativa plants was concerned. PW4 said, their information were normally received from the relatives of those alleged to be cultivating cannabis sativa, commonly known as marijuana.
    
15. According to the prosecution, the police decided to raid Naqia Village on 9 June 2017 to catch the alleged marijuana cultivators. According to PC 3908 Emosi Nokonokovou (PW1), the police received information that Mr. Nemani Ravia (DW1) was allegedly selling and cultivating marijuana. PW1 said a team was formed, which included him, PC 5382 Jiutasa Taiki (PW2), SC 2089 Saimoni Kete (PW3), and a police driver to apprehend Mr. Ravia. On 9 June 20187 at about 4 am, PW1 and his team left Korovou Police Station in a police vehicle and went to Mr. Ravia’s house. At 8 am, they knocked at Mr. Ravia’s house, and later searched the same with the authority of a search warrant.
    
16. According to police, nothing was found at Mr. Ravia’s house. He was later taken to Nayavu Police Post by police. According to PW1, PW2 and PW3, Mr. Ravia admitted to them, at the Police Post, that he had a marijuana farm at Naqia. They returned to his residence at Naqia. According to the prosecution, Mr. Ravia later led PW1, PW2 and PW3 through bush and mountain tracks, to his marijuana farm, which was 2 hours journey to and from his residence. At the farm, the police saw marijuana plants growing, and according to prosecution, Mr. Ravia allegedly admitted to police that the marijuana farm and plants were his. PW2 and PW3 later allegedly uprooted the plants. There were 86 in total, and 1 consisting of plant materials. Altogether, there were 87 plant materials.
    
17. PW1, PW2 and PW3 later carried the marijuana plants from the farm to the road. They later took the same to Nayavu Police Post. From there, they took the plants to Korovou Police Station and handed the same to Corporal 4106 Waisea (PW4). PW4 was the police investigation officer. PW4 later handed the 87 marijuana plants to WPC 4501 Mere (PW5), the Korovou Police Station exhibit writer, for safe keeping. At 2.40 pm on 9 June 2017, PW4 handed the 87 marijuana plants to the police forensic officers, Ms. Susana Lawedrau (PW6) and Ms. Miliana Werebauinona (PW7), to analyze for cannabis sativa content. After examining and analyzing the 87 plant materials, PW7 found the same to be cannabis sativa, and it weighed a total of 34.2 kilograms. The plants were later handed back to PW5 for safe keeping.
    
18. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
    

7. THE ACCUSED’S CASE

19. On 23 April 2019, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he chose to give sworn evidence and called his first cousin (DW2) as his only witness. That was his right.
    
20. The accused’s case was very simple. On oath, he denied the allegation against him. He, however, admitted planting one marijuana plant on his dalo plantation, for his own personal use. He denied that the 86 marijuana plants and 1 plant material obtained from a farm he showed the police were his. According to the accused (DW1), he wanted to help the police by showing them the marijuana farm. He said, instead of thanking him, the police framed him by saying the farm was his.
    
21. Furthermore, the accused said, he did not admit to the police that the marijuana farm was his. He said, the police were lying. Because of the above, the defence is asking you, as assessors and judges of fact, to find the accused 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 this case, and lastly, the need to consider all the evidence.
    

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

23. In terms of the elements of the offence, as discussed in paragraphs 9 (iv), 9 (v), 10 and 11 hereof, the prosecution’s case were as follows. The police, as a result of Mr. Nemani Ravia’s assistance, managed to locate a marijuana farm one hour walk over bush, mountains and creeks from his residence in Naqia. The police via PC 5382 Jiutasa (PW2) and SC 2089 Saimoni (PW3), uprooted 86 marijuana plants from the marijuana farm. One (1) marijuana material was also located at the farm. In total, PW2 and PW3 said, they uprooted and seized a total of 87 marijuana plant materials from the marijuana farm on 9 June 2017.
    
24. PC 3908 Emosi (PW1), PW2 and PW3 said they carried the above 87 marijuana plant materials to the road where their police vehicle was waiting. They later loaded the same onto their police vehicle and took it to Nayavu Police Post, and later to Korovou Police Station. They later handed the same to Corporal 4106 Waisea (PW4), the police investigation officer, at Korovou Police Station. PW4 later handed the same to WPC 4501 Mere (PW5), the Korovou Police Station’s exhibit writer, for safe keeping in the station’s exhibit room. PW5 later handed the 87 marijuana plant materials to Ms. Susana Lawedrau (PW6), a police forensic science officer to prepare the same for examination and analysis for cannabis sativa content by police principal scientific officer, Ms. Miliana Werebauinona (PW7). PW7 analyzed the same and found the same to be cannabis sativa and it weighed 34.2 kilogram. PW7 tendered the “Analysis of Cannabis Report” as Prosecution Exhibit No. 4 and her “Certificate of Analysis” as Prosecution Exhibit No. 5.
    
25. From the above evidence, it appeared that the prosecution had proven that the marijuana plants uprooted from the farm Mr. Nemani Ravia had shown the police, were indeed cannabis sativa, an illicit drug, and the same weighed 34.2 kilogram. The only question that remains to be answered was whether or not the above marijuana plants belong to Mr. Nemani Ravia?
    
26. On the above question, there were two versions of events. First, the prosecution’s version of events through the evidence of PC 3908 Emosi (PW1), PC 5382 Jiutasa (PW2) and SC 2089 Saimoni (PW3). You have heard their evidence on 23 and 24 April 2019. You have watched their demeanor in the courtroom and you have seen how they answered the prosecution’s and defence’s counsels questions. I am sure their evidence is still fresh in your mind, and I will not bore you with the details. Suffice to say that each of the above witnesses said, the accused admitted to them at Nayavu Police Post, and on their way to and on the farm that the marijuana plants were his. PW2 said, the accused told him he did marijuana farming to enable him to build his house.
    
27. The defence did not challenge the admissibility of the above verbal confession in a voire dire proceeding. In any event, when considering the above alleged verbal confession by the accused, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his verbal statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the verbal statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those verbal statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
    
28. If you accept the prosecution’s witnesses’ version of events, 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.
    
29. The accused, in his sworn evidence said, he did not verbally admit to the police that the marijuana farm was his. He only admitted planting one marijuana plant on his dalo plantation for his personal use. So, he admits he does smoke marijuana. He told the police that the farm may belong to one Samuela Koro, although he said he had actually not seen him planting the marijuana plants. He said, he only sees Mr. Koro coming from the area of the farm, and according to police, Mr. Koro is still on the run from them. Note Corporal 4106 Waisea’s (PW4) evidence that alleged marijuana cultivators often blame each other when caught. In any event, the accused said the marijuana farm was not his. If you accept the accused’s evidence and version of events, you must find him not guilty as charged. If otherwise, you must assess the strength of the prosecution’s case and decide accordingly. It is a matter entirely for you.
    

(c) The Accused’s Case:

30. I had summarized the accused’s case to you from paragraphs 19 to 21 hereof. I repeat the same here. If you accept the accused’s version of events, you will have to find him not guilty as charged. If otherwise, you will have to assess the overall strength of the prosecution’s case, and decide accordingly.
    

(d) The Need To Consider All the Evidence:
31. The prosecution called 7 witnesses:

(i) PC 3908 Emosi Nokonokovou (PW1);
(ii) PC 5382 Jiutasa Taiki (PW2);
(iii) SC 2089 Saimoni Kete (PW3);
(iv) Cpl 4106 Waisea (PW4);
(v) WPC 4501 Mere (PW5);
(vi) Ms. Susana Lawedrau (PW6); and
(vii) Ms. Miliana Werebauinona (PW7).

The defence called 2 witnesses:

(i) The Accused (DW1); and
(ii) Mr. Waisea Vusodamu (DW2).

32. The parties submitted an Agreed Facts, dated 12 April 2019.

33. The prosecution submitted the following exhibits:

(i) Search Warrant - Prosecution Exhibit No. 1.
(ii) Search List - Prosecution Exhibit No. 2.
(iii) PW7’s Written Statement - Prosecution Exhibit No. 3.
(iv) Analysis of Cannabis Report - Prosecution Exhibit No. 4.
(v) Certificate of Analysis - Prosecution Exhibit No. 5.
(vi) 3 x Brown paper bag containing the cannabis - Prosecution Exhibit Nos. 6 (A), 6 (B) and 6 (c).

34. You will have to consider the above evidence together. Compare them and analyze them together. If I haven’t mentioned a piece of evidence you consider important, please take it on board in your deliberation. If you find a witness credible, you are entitled to accept the whole or some of his/her evidence in your deliberation. If you find a witness not credible, you are entitled to reject the whole or some of his/her evidence in your deliberation. You are the judges of fact.
    

I. SUMMARY

35. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
    
36. Your possible opinion is as follows:
    • (i) Unlawful cultivation of illicit drugs: - Guilty or Not Guilty
      
37. You may now retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
    

Salesi Temo

JUDGE

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

Solicitor for the Accused : Legal Aid Commission, Suva.