State v Rahman [2021] FJHC 287; HAC063.2019 (16 April 2021)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Fiji

Date of Hearing: 22 March – 26 March, 29 March – 31 March, 1 April 2021

[1] On the night of 14 February 2019 at about 8 pm, a team of police officers with the assistance of two trained sniffer dogs searched a residential property at Caubati Road under a judicial warrant. The police found thirty nine bars of a powdery substance wrapped in parcels and concealed inside the master bedroom of the property. The substance was scientifically tested by a government analyst. The substance was cocaine.

[2] As a result of the discovery of cocaine, the Accused, Joshua Aziz Rahman was charged with unlawful possession of illicit drug contrary to section 5(a) of the Illicit Drugs Control Act. The Accused pleaded not guilty to the charge.

acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug

[4] Illicit drug means any drug listed in Schedule 1. Cocaine is an illicit drug listed in Schedule 1 of the Act and Schedule 1 of the Convention on Narcotic Drugs 1961.

[5] Section 4 (2) of the Act states that in any proceedings, proof of lawful authority lies upon the accused person.

[6] Possession is not defined in the Act but the definition of possession under section 4 of the Crimes Act include “having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person”.

[7] Before the commencement of the trial, the State amended the particulars of the charge to read that “the Accused with another between 23 January 2019 and on 14 February 2019 at Caubati in the Central Division, without lawful authority, was found in possession of illicit drugs namely cocaine weighing 39.5 kilograms”.

[8] In his opening statement, Counsel for the State alleged that the Accused was in joint possession of the illicit drugs with his father, Tallat Rahman.

[10] The Accused is presumed to be innocent. The burden to prove the charge is on the prosecution. Each element of the charge must be proved, but not every fact of the story.

[11] The prosecution must prove the charge beyond a reasonable doubt. That simply means that I must feel sure of the Accused’s guilt before convicting him. If I entertain a reasonable doubt of guilt, I must find him not guilty of the charge.

[12] The burden to prove the charge remains on the prosecution throughout the trial unless the law expressly specifies that the burden of proof in relation to a matter in question is a legal burden on an accused, or requires the accused to prove a matter, or creates a presumption that a matter exists unless the contrary is proved. Whenever there is a reverse burden on an accused, he is required to discharge that burden on the balance of probabilities.

[13] The verdict must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses examined in court, as well as the physical and documentary exhibits tendered in court. Media coverage of the case is not evidence. Opening and closing addresses of counsel are not evidence.

[14] In order to prove the offence of “Found in Possession of an Illicit Drug”, the prosecution must prove beyond reasonable doubt that on the date and place the Accused was in possession of an illicit drug, without lawful authority.

[15] A person acts with lawful authority in relation to an illicit drug if that person has been prescribed the drug on a medical ground or the person's lawful profession involves administration of an illicit drug. There is no suggestion that the Accused acted with lawful authority in this case. That brings me to the element of possession.

[16] The word ‘possession’ has a legal meaning. It is not necessary for you to have something in your hand, pocket or physical custody before the law says that you have it in your possession. Further you do not need to own something in order to possess it. You can possess something temporarily, or for some limited purpose. You can possess something jointly with one or more other persons. However, if something has been, for example, slipped into you’re your luggage unknown to you, you are not regarded as having possession of it in law, even though the bag you are carrying could be said to be under your control.

[17] The essence of the concept of possession in law is that, at the relevant time, the Accused intentionally have control over the object in question. The Accused may have this control alone or jointly with some other person or persons. The Accused and those persons (if any) must have a right to exclude other people from it. If these conditions are fulfilled than the Accused may be said to have possession of that object, whether it is his own sole possession or whether it is a joint possession with somebody else.

[18] There is a factual presumption provided by section 32 of the Illicit Drugs Control Act that when any illicit drug is found on any premises under the control of the accused, the accused is presumed to be in possession, until the contrary is proved.

[19] Whenever an issue is raised by an accused that he didn’t know or believe or had reason to suspect that the premises under his control had an illicit drug of some sort, the onus is on him to show on the balance of probabilities that he neither believed nor suspected nor had reason to suspect that the substance found on the premises was an illicit drug. In order words, it is for the Accused to show that it is more likely than not that he didn’t know or believe or had reason to suspect that the premises under his control had an illicit drug of some sort.

[20] A person’s state of mind is as much a question of fact as any other question of fact. It is not possible to have direct evidence of this. No one can look into the accused’s mind and describe what he knew or believed at any particular time.

[21] However, it is something that can often be inferred from all the proved facts and circumstances. They include, for instance, what the accused himself actually did. That will often be a very important matter. A person’s actions, in themselves, may clearly show his intention or knowledge.

[22] Other matters that may be relevant are what the accused said and did before the alleged offence. What the accused said at the time of the alleged offence. What the accused said and did after the alleged offence, including his statement to the police, and what the accused said in evidence may indicate his intentions, beliefs and knowledge.

[23] In this case the prosecution relied upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the Accused which they say when taken together lead to sure inference that that the Accused committed the alleged crime.

[24] An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused having committed the crime. For the Accused to be guilty, an inference of guilt must be the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies beyond reasonable doubt that the Accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then the Accused must be not guilty.

[26] The Accused has admitted to certain facts, which are considered as true. The admitted facts are:

[27] At trial, the prosecution called evidence from twenty witnesses and tendered thirty five exhibits. The defence called evidence from the Accused and tendered three exhibits. It is not necessary to repeat the evidence of each witness in detail. I will summarize the salient features relevant to the issues for determination for the purpose of a verdict.

[28] The first two witnesses for the prosecution, Alfred Rounds and Alanieta Masitabua were the caretakers of the property at Caubati Road. The owner of the property at the time was Ratu Cokanauto. The couple was distantly connected to the owner and they lived at the back flat as caretakers.

[29] As caretakers the couple was familiar with the layout of the house. They knew the master bedroom was occupied by Tallat Rahman while the room directly opposite to the master bedroom on the left was occupied by the Accused. A third bedroom was usually occupied by guests.

[30] The couple said that Tallat Rahman stayed continuously at the house after taking over the tenancy in 2017 while the Accused used to come and go. They saw drinking parties being held at the house at the time when the Accused was present at the house.

[31] Mr Rounds’ evidence is that he had the keys to the house, but he had only entered the house once or twice when the tenants were staying there, to fetch a receipt for payment of a utility bill or to switch off the lights on the tenant’s request.

[32] The next witness was Poseci Rawaqa. Mr Rawaqa was a private security guard at the house from 31 January 2019. He worked at as security guard in the evenings. Mr Rawaqa’s evidence is that the Accused was introduced to him by his father, Tallat Rahman. He said that he had witnessed other people coming to the house almost every afternoon while he worked there as a night security guard. Mr Rawaqa last saw Tallat Rahman on 7 February 2019 when he left the house for Nadi to fly out to New Zealand. Mr Rawaqa said that he last met the Accused on 10 February 2019 when the Accused returned home in the morning, drunk. After that he next saw the Accused when he was brought to the house by police on 14 February 2019.

[33] The next witness was Sergeant Naupoto. He is the police photographer who accompanied a team of officers to the house at Caubati Road on 14 February 2019. He said that he arrived at the house at around 8 pm. He said he received his instructions from Sergeant Tawake. He tendered a photographic booklet of the photos he took at the scene as Prosecution Exhibit 2. It is not necessary to repeat the captions describing each photo in detail. The photos show the discovery of the drugs as they were found in the master bedroom of the house. After the drugs were seized and packaged, they were photographed at the scene and were unwrapped next at the Forensic Lab for testing.

[34] In cross examination Sergeant Naupoto said he could not recall taking photographs of any hand written notes that were seized from the house.

[35] The next witness was Inspector Vuniwaqa. Inspector Vuniwaqa is based at the Transnational Crime Unit at the Fiji Revenue and Customs. He carried out a covert surveillance on 9 February 2019 on two persons of interest arriving in Nadi from Sydney upon receiving information from the Australian Federal Police. He said that the names of the two persons of interest were Sam Amine and Mangolini. Sam Amine was a Fiji resident who owned a property at Fantasy Island. He said that he carried out the surveillance of the movements of these two men from Nadi to Suva. He said that on their way to Suva he saw a third person by the name Samuel Veisuvuraki join Sam Amine and Mangolini in their rental vehicle at Maui Bay. When they got to Suva they went to Gloria Jeans Café at Damodar City and met a slim guy. He then handed the surveillance to another officer.

[36] Inspector Vuniwaqa’s next role in the case was to escort the Accused from Namaka Police Station to the CID Headquaters in Toorak on 13 February 2019. He said that they left Nadi at about 9 am and upon arrival in Suva at about 12.45 pm, he handed the Accused to Corporal Dutt.

[37] In cross examination Inspector Vuniwaqa said the covert surveillance was conducted without a warrant from the court.

[38] The next witness was Corporal Lal from the Transnational Crime Unit. He took over the covert surveillance from Inspector Vuniwaqa at Damodar City involving Sam Amine and Mangolini. Corporal Lal said that Sam Amine and Mangolini were subject of an investigation relating to some cash at the Nausori Airport. He saw Sam Amine, Mangolini and Samuel Veisevuraki being joined by an unknown man at the coffee shop at Damodar City. The four of them sat for a few moment at the coffee shop and then left together on the same vehicle. He saw the vehicle was a rental car with the registration number LR 1690. He saw the four leave Damodar City and drove to Nandos at Laucala Bay. He saw them having lunch together at Nandos. He took photos of them while they were exiting Nandos.

[39] Corporal Lal tendered a booklet of surveillance photos that he took as Prosecution Exhibit 3. He identified the four people at the coffee shop and at Nandos as Samuel Veisevuraki, Mangolini, Sam Amine and Joshua Rahman. He saw four of them drove back to Damodar City where the Accused exited the vehicle and boarded a taxi outside Damodar City. Corporal Lal said he continued with the surveillance of the remaining three after the Accused exited the rental vehicle.

[40] The next witness was Corporal Nair from the Transnational Crime Unit. Corporal Nair arrested the Accused on 12 February 2019 at around 10.30 pm from the Mecure Hotel in Nadi on the instructions of his manager. He informed the Accused that he was wanted for questioning by CID Headquarters. The Accused was calm and cooperative. His room was searched under a warrant and foreign and local currencies, a bank card, a pocket wifi and a mobile phone were seized. The Accused was detained overnight at Namaka Police Station and transported to Suva the following morning.

[41] The next witness was Corporal Cakausese. He accompanied a police team sent to arrest the Accused from the Mecure Hotel on 12 February 2019. Apart from searching the room he also searched the Accused by taking him to the washroom for his privacy. He maintained the search was for a legitimate purpose. He explained that he mentioned that the Accused was arrested for dealing with drugs in his out of court statement because the police suspected that the currencies found on the Accused may have originated from drugs. He said that all items seized from the Accused’s bedroom were listed in the search lists acknowledged by the Accused. The search lists are Prosecution Exhibits 4 and 5.

[42] The next witness was the Principal Scientific Officer at the Fiji Police Forensic Chemistry Lab, Miliana Werebauinona. Her qualifications were not in dispute. She scientifically tested the 39 bars of white powdery substance found at the house using both colour matric testing and FTIR analysis. Both tests revealed the substance was cocaine. The total weight of the drugs was 39.5 kg. Her findings are recorded in Prosecution Exhibits 8 and 9. She did not test the cocaine for purity as she was not requested to carry out a purity test.

[43] The next two witnesses were Inspector Yawayawa and Customs Officer Tuiraki. These two officers were trained sniffer dog handlers. They accompanied the police team to the house on 14 February 2019 with their trained sniffer dogs. After the dogs were deployed, they showed interest on the couch and the TV rack in the living room, but nothing was found there. After the kitchen was cleared, the dogs went straight to the master bedroom and sat in front of the bedside drawer. When the officers opened the drawer they saw a parcel wrapped with a grey colour duct tape as seen in photo number 11, Prosecution Exhibit 2. The dogs were taken to the other bedrooms but they did not show any interest in those bedrooms.

[44] The next witness was ASP Taoka from CID Headquarters. ASP Taoka’s evidence is that on 15 February 2019, Corporal Dutt referred the Accused to him after concluding his caution interview on a currency case. He said that the Accused was not charged with any offence relating to currency after his caution interview. He said that he informed the Accused that he was going to be released from the police custody and that he did release the Accused from police custody at about 7.45 pm on 15 February 2019.

[45] In cross examination, ASP Taoka said that the Accused was re-arrested outside the CID premises shortly after he was released from police custody.

[46] The next witness was Inspector Donu. His evidence was that he was instructed by his supervisor to re-arrest the Accused after he was released from the police custody on 15 February 2019. Inspector Donu said that he arrested the Accused outside the CID Headquarters at about 7.55 pm. He said that he advised the Accused of his rights and escorted him back to the CID Headquarters and handed him to Corporal Dutt.

[47] The next witness was Inspector Bari. Inspector Bari formally charged the Accused on 17 February 2019 at the CID Headquarters. During the process the Accused made a statement which was recorded in writing after the Accused was advised of his rights. The charge statement (PE 12) of the Accused reads:

“I don’t have any knowledge about the things I am charged with for being in possession of drugs and do not even reside full-time in the country they were found in, let alone reside full-time in the house where they were found. I only stay there when I’m in Suva with my father”.

[48] The next witness was Corporal Avinesh Dutt from the Major Crime Unit. Corporal Dutt interviewed the Accused under caution after he was brought to the CID Headquarters from Namaka Police Station. The interview commenced on 13 February 2019 at 5.56 pm and was concluded on 15 February 2019 at 7.10 pm. During the process, the interview was suspended for the Accused to consult his lawyer or for overnight rest or to conduct a search at his Caubati residence. The purpose of the interview was to ascertain the Accused’s connection with one Aaron Lawson from New Zealand, Samuel Veisevuraki from New Zealand and Mangolini Guisappe from Australia.

[49] The Record of Interview was tendered as Prosecution Exhibit 13. In that interview the Accused disclosed that the purpose of his visit to Fiji was to explore his business options. The Accused admitted that he ran into three guys at the Gloria Jeans, Damodar City on Saturday 9 February 2019. The Accused said that he did not know their names but their face looked familiar. The Accused said that he had coffee with them and then on their invitation he accompanied them on their vehicle to Nandos for lunch. The Accused said that after having lunch the three guys dropped him off at Damodar City and that he did not meet them again.

[50] Corporal Dutt said that on 14 February 2019 he suspended the interview at 6.15 pm to conduct a search of the Accused’s residence at Caubati Road under a warrant. He briefed a team and arrived at the scene at about 8 pm. He said that the Accused was brought to the house for the search. After complying with the procedure for search, the house was searched with the assistance of the sniffer dogs. He said that the first bar of drugs was found inside the bedside drawer in the master bedroom of the house.

[51] Corporal Dutt said that he also searched the Accused’s bedroom which was directly opposite the master bedroom. He said that he found a notepad with some loose pages (Prosecution Exhibits 18, 19, 20 and 21) on top of a table inside the Accused’s bedroom. He said that he added his initials on the documents on the date they were lifted but may have put the wrong date of 17/2/19.

[52] Corporal Dutt said that after searching the Accused’s bedroom he returned to the master bedroom to switch off the light and the air condition. He said that when he was unable to reach to the switch he slightly moved the mattress and climbed over the bed. When he climbed on the wooden top his leg nearly went inside. He then removed the mattress with the help of another police officer to check what was underneath it. He saw a board placed underneath the mattress with visible screw marks but without any screws affixed to the board. He said when he lifted the board he saw a cavity filled with wrapped parcels stacked on top of a black plastic bag. The parcels – 38 bars of drugs were seized and packaged in brown bags.

[53] Corporal Dutt conducted a second interview of the Accused under caution. That interview was video recorded. The video record is Prosecution Exhibit 24 and the transcripts are Prosecution Exhibit 25. The interview commenced on 15 February 2019 at 11.03 am. That interview concluded on 17 February 2019 at 10.30 pm. During the process the interview was suspended for meals and for overnight rest. In that interview the Accused denied any knowledge of the drugs that was found in the house at Caubati Road.

[54] Corporal Dutt was cross-examined on the inconsistencies between his two self-recorded statements – DE 1 and DE 2. Both statements were purported to be recorded on 16 February 2019 but with two different residential addresses and two different fonts. Corporal Dutt said that he may have used different templates on the computer to type the statements and that he may have overlooked the addresses.

[55] The next witness was Ms Linton Finiasi, an Accounts Officer at Lateef & Lateef Lawyers. Ms Finiasi tendered certain documents which were uplifted from the law firm under a warrant. Ms Finiasi confirmed that the documents were part of the records of the law firm. The first document is an email from Tallat Rahman dated 15 May 2015 instructing the law firm to transfer money into his Fijian account (PE 26). The second set of documents are six payment vouchers that were generated by the ANZ Bank for the law firm. According to the vouchers (PE 27), the payments were made into the trust account of the law firm from Canada by the Accused to his father, Tallat Rahman in Fiji under the company name Tallat Rahman Datec Solar as the account receiving the payments in Fiji. The dates and amounts on the vouchers are as follows:

[57] The next witness was WDC Buidei. She is attached to the Compliance and Investigation Section of the Fiji Immigration Department. She uplifted and tendered the Department of Immigration Boarder Control Travel History Records of the Accused and Tallat Rahman.

[58] The records (PE 28) show the following arrival and departure history on Canadian Passport Number HD855424 by the Accused:

[59] The records (PE 29) show the following departure and arrival history on Fijian Passport Number 937291 by Tallat Rahman:

[60] The next witness was Corporal Nagatalevu. His role was to assist in securing the discovery of the physical evidence at the house at Caubati Road. When he arrived at the property at around 11 pm the house had already been searched. When he was inside the house he saw Corporal Dutt pick a yellow notebook from the top of a drawer inside the Accused’s bedroom and brought it to the living room. He said that the Accused’s room was directly opposite the master bedroom where the 39 bars were found. After the notebook was found he made an entry into the search list. He said that the Prosecution Exhibits 18, 19, 20 and 21 (notebook with three loose pages) were found in the Accused’s bedroom.

[61] In cross-examination Corporal Nagatalevu said that he did not know the notebook was a vital piece of evidence, but when it was handed to their Director at the living room he directed them to seize it. He said that he did not see Corporal Dutt put his initial on the notebook pages when it was uplifted but when he received the documents in a folder sometimes after the seized drugs were exhibited, he saw Corporal Dutt’s initial on notebook pages. He said that he was not aware whether the hand writings on the notebook pages were tested by a handwriting expert.

[62] The next witness was Ms Davina Reddy, Quality Assurance Officer with the Bank of South Pacific. Ms Reddy confirmed that there was an inward telegraphic transfer made by Joshua Rahman from Canada in the Sum of $3485.00 into the account of Ratu Cokanauto Tu’uakitau on 6 August 2018 (Prosecution Exhibit 34). The transaction detail provided in the recipient’s bank statement (Prosecution Exhibit 35) reads “Rent for August”.

[63] The final witness for the prosecution was Detective Senior Sergeant Damien Espinosa, New Zealand Police. Sergeant Espinosa gave evidence via Skype from the Fiji Embassy in Wellington.

[64] Sergeant Espinosa’s evidence was that between 2018 and 2019 he was involved in an investigation into a drug importing syndicate in New Zealand. He spoke about an event on the night of 9 December 2018 when a consignment arrived in New Zealand from USA. He said the consignment was addressed to Ben Hura of 9 Hendry Avenue Hillsborough NZ. He said that on 19 February 2019 he executed a warrant at 9 Hendry Ave. He said that Tallat Rahman was involved in the importation of that package and had pleaded guilty to importing methamphetamine.

[65] Sergeant Espinosa said that on 4 February 2019 another consignment arrived in New Zealand from USA via DHL. The consignment was addressed to Necai Little of ¼ Crewe Close, Albany, Auckland with a phone contact number 0214174269.The package was delivered and it was intercepted by New Zealand Customs and Tallat Rahman pleaded guilty to importing methamphetamine in relation to that package.

[66] Sergeant Espinosa said that on 22 December 2018 Tallat Rahman was seen meeting Mr Sipene Timu at the Four Points by Sheraton in Auckland City. He said that later that evening the CCTV footage from the Four Points showed Tallat Rahman and Joshua Rahman exiting the hotel with Tallat carrying a backpack.

[67] Sergeant Espinosa said while in New Zealand Tallat Rahman used a cell phone number 0204168708. He said that that phone was used by Joshua Rahman when Tallat Rahman left New Zealand.

[68] Sergeant Espinosa in the course of his investigation discovered an Australian telephone number belonging to Samuel Veisevuraki and a cell phone number belonging to Mangolini. He said the New Zealand Police obtained an extraction report from the Fiji Police on the phone numbers and carried out an analysis of the data. The data analysis of the phones revealed Mangolini was called Karate and Veisevuraki referred himself as Mr White. He said that Mangolini was known as Veisevuraki’s associate to New Zealand Police.

[69] In cross-examination Sergeant Espinosa said that when he conducted the analysis of the phone data he did not prepare a report but a statement only.

[71] He said that he was born in Canada to a Fijian father and a Canadian mother. His date of birth is 8 January 1995. His parents separated when he was 1 year old. His mother raised him. He reconnected to his father, Tallat Rahman sometime around 2012 or 2013 after he graduated from High School and at a time when his father was about to transfer all his business to Fiji.

[72] The Accused said that, his father before moving to Fiji for good left him money (about US$40,000.00) after closing his bank account in Canada. He said that his father wanted to start a solar business in Fiji. He said that in July 2014 he transferred a sum of US$5000.00 on six occasions of his father’s money from his bank account to the trust account of Lateef and Lateef on the instructions from his father. He said that Lateef and Lateef were his father’s lawyers. He said that his father did not tell him the purpose of him wanting the money transferred to him in Fiji.

[73] The Accused said that the first time he came to Fiji was in October 2017 after finishing from University. When he first came to Fiji he stayed with his uncle (father’s brother) at Marou Road, Domain.

[74] The Accused said that while he was studying at the university he had travelled to Mexico on numerous occasions with his university friends because Mexico is a very popular tourist destination for Canadians.

[75] The Accused said that in August 2018 he transferred some money from his account to Ratu Cokanauto’s bank account on his father’s request who at the time was in Canada but did not have a Canadian bank account. He said that his father did not tell him the purpose of that payment to Ratu Cakanauto.

[76] The Accused said that in December 2018 he went to New Zealand to spend his Christmas holidays there. He said that his father had travelled to New Zealand by himself and then he went afterwards. He said that he travelled to New Zealand on 21 December and stayed with his father at Sheraton Hotel in Auckland. He said that his father gave him about $2000 or $3000 before returning to Fiji on the 22^nd or 23^rd December 2018. He said that he was not aware of the purpose of his father’s trip to New Zealand.

[77] The Accused said that to his recollection he was with his father when he checked out of the hotel on 22 December. He said that his father had his bags with him but he cannot recall his father carrying a black bag. He said that he stayed at the same hotel during his stay in New Zealand. That was his first and last trip to New Zealand.

[78] The Accused said that he did not know anyone called Karate and White. He said that he did not meet anyone called Karate and White.

[79] The Accused said that when he returned to Fiji on 31 December he went back to his father’s house in Caubati. He said that his father rented the property. His father was responsible for the payments of the bills. His father’s friends and relatives used to come to the house. The Accused said that he did not have anything to do with his father’s business in Fiji.

[80] The Accused said that when he was in Fiji he stayed with his father. His father occupied the master bedroom while he had a bedroom for himself. He kept his clothes, passport, cell phone and laptop in his bedroom. The Accused said that he did not have any ownership or tenancy rights over the property. He had a few friends who used to come to the house for a drink. His father supported him financially during his stay in Fiji.

[81] The Accused said that his father entertained some people from Mexico who were his friends and came for his 60^th birthday celebration. The Accused said that he took their Mexican guests for sightseeing and explore business options in Fiji. The Accused said that he himself was interested in exploring his business options in Fiji and was hoping to become a Fiji citizen.

[82] The Accused said that he was not aware of the drugs that was found in his father’s room on 14 February 2019. He said that the police did not take him inside his father’s room when the drugs were discovered. He said that he signed the search list when told to do so by police.

[83] The Accused said that when his father left for New Zealand in February 2019, he left him some cash and his BSP card. The Accused said that he was going to return to Canada on 28 February 2019.

[84] The Accused said that on 9 February 2019 he was at Gloria Jeans Cafe, Damodar City when three individuals walked passed him and greeted him. They went inside the restaurant and then came out to the table next to his table. They asked him if they could join the table and after joining the table they started a conversation with him. The Accused said that he could not recall if they had met before but their faces looked familiar. The Accused said that they did introduce themselves because he thought it was a general understanding that they may have seen each other in passing by before.

[85] The Accused said that from Gloria Jeans he accompanied the three individuals to Nandos for lunch. He said after having lunch with the three individuals, they dropped him back at Damodar City. He said that he did not exchange phone numbers with the three individuals.

[86] The Accused said that on 11 February 2019 he travelled to Nadi to pick up two business partners and to take them to look at a land in Yaqara the following day.

[87] The Accused said that on 12 February 2019 he did take the two business partners to Yaqara to see the land. When he returned to Nadi he paid for the change of tickets for the two Mexican gentlemen using his father’s BSP card, which they reimbursed with US$800.00 cash.

[88] The Accused said that while he was in Nadi he learnt from his friend, Shaneel that the police came to his house asking about his whereabouts. He said that he went and enquired at Nadi Police Station and then at Namaka Station but the police officers could not help him.

[89] The Accused said that after the enquiry he returned to his hotel. He said that he was staying at Mecure, Room Number 307. He said that around 11 pm he received a knock on the door and there were some police officers outside. He said that the police did not advise him the purpose of their visit. He said that the police showed him a search warrant to search his room. He said that he was also strip searched but nothing was found either on him or in the room. He said that the police confiscated his mobile phone, house keys, his father’s BSP card and cash and his pocket wifi.

[90] The Accused said that he was detained and escorted to Namaka Police Station. He spent the night at the cell block at Namaka.

[91] The Accused said that the next morning two police officers transported him from Namaka to Suva on a police vehicle. He said that he arrived at the CID Headquarters at around 1 pm. He was kept in a room at the CID Headquarters until Corporal Dutt interviewed him under caution after advising him of his right to consult a lawyer. The Accused said that when the interview was suspended he was kept at Totogo Police Station.

[92] The Accused said that on 14 February 2019, he was taken on a police vehicle to Caubati for a search of the house he was living in at the time. He said he was shown a search warrant and given the house keys to open the door. The Accused said that after the search was completed, he was brought back to the station at about 1 am and detained.

[93] The Accused said that his detention continued on 15 February 2019 and that he was never released from custody as claimed by the police officers, or re-arrested outside the CID Headquarters shortly after a release.

[94] The Accused said that after the conclusion of his second interview he was charged at 3.30 pm on 17 February 2019 and produced in court the next day.

[95] Finally, the Accused said that his father was in control of the premises he was staying and not him. He said that he had no knowledge of the drugs in the premises.

[96] In cross-examination the Accused said that the notes Prosecution Exhibits 18, 19 and 20 were found in the house during the search but not in his bedroom. He said that the handwriting on the notes may be his or his father’s handwriting because it is possible that his father asked him to write something down for him.

[98] In the course of his closing submissions, counsel for the Accused has made a number of submissions to exclude or to disregard certain evidence led by the prosecution.

[99] The defence submits that the photos, Prosecution Exhibit 2 “obtained through unlawful surveillance should not be allowed to be used as evidence against Joshua or allowed to be used in Joshua’s case”. The defence submits that a covert surveillance without a warrant from the High Court was unlawful under section 12 of the Illicit Drugs Control Act.

If satisfied that there are reasonable grounds for that suspicion or belief, issue a warrant authorizing the covert monitoring and recording , by any means, of the conduct and communications, including telecommunications, of the person.

In exercising power of monitoring, surveillance, inspection, examination, control delivery, boarding, entry or search conferred by this Act, a police officer, a customs officer or authorized officer may use such assistance and aids as the officer considers necessary.

[102] Section 12 gives the High Court discretion to sanction a covert surveillance under the Illicit Drugs Control Act by issuing a warrant. That discretion is to be exercised on a reasonable suspicion or belief of a police officer of the rank of inspector or above that a person has committed, is committing or is about to commit an offence against section 4 of the Act. Section 4 relates to the offences of importation and exportation of an illicit drug.

[103] The police officers involved in the covert surveillance in this case were Inspector Vuniwaqa and Corporal Lal. They admitted the surveillance that they conducted on 9 February 2019 was without a judicial warrant. Corporal Lal took the photos, Prosecution Exhibit 2 from a distance of 50 meters using a Canon SLR 1100D.

[104] Inspector Vuniwaqa said that section 23 of the Illicit Drugs Control Act gave police power to conduct a surveillance without a warrant. That view is misconceived. Section 23 authorizes use of aids as the police officer considers necessary when exercising any power of surveillance conferred by the Act.

[105] The covert surveillance in this case was conducted after the Australian Federal Police tipped off the Fiji Police Force regarding Sam Amine and Mangolini travelling to Fiji with foreign currencies. When the Accused was arrested on 12 February 2019 and subsequently interviewed under caution on 13 February 2019, he was questioned regarding his meetings with one Aaron Lawson, Veisevuraki and Mangolini.

[106] The Accused only came under the police radar when he met Sam Amine, Mangolini and Veisevuraki at the Gloria Jeans Café Damodar City and at Nandos Laucala Bay. But the police had not established the identity of the Accused at that stage. He was referred to as a slim guy joining Sam Amine and Mangolini who were under surveillance. The Accused in his evidence does not deny meeting three individuals at the Gloria Jeans Café and at Nandos.

[107] There is no evidence before me that a police officer with the rank of an inspector or above in Fiji had ever suspected or believed on reasonable grounds that the Accused was committing or was about to commit an offence of importation or exportation of an illicit drug contrary to section 4 of the Illicit Drugs Control Act when the covert surveillance was carried out on 9 February 2019.

[108] There is nothing in the Act prohibiting a covert surveillance of suspects without a judicial warrant in relation to an offence contrary to section 5 of the Illicit Drugs Control Act, with which the Accused is charged. If there is a lacuna in the law then that lacuna requires a legislative reform and not a judicial intervention. The Illicit Drugs Control Act only requires judicial sanction for covert surveillance for importation and exportation offences contrary to section 4 of the Act. No judicial warrant is required for covert surveillance for section 5 offences.

[109] I am satisfied so as to feel sure that the covert surveillance in the present case was lawful and the photos, Prosecution Exhibit 2 obtained through that surveillance is admissible. In coming to this conclusion I am mindful that the primary evidence is the oral testimony of Inspector Vuniwaqa and Corporal Lal. The photos only support what they saw during the covert surveillance.

Whether the arrest, detention and search of the Accused on 12 February 2019 was unlawful?

[110] The defence submits that the arrest and detention of the Accused on 12 February 2019 was unconstitutional and unlawful because he was not promptly informed the reason for his arrest and detention.

[111] Section 13(1) gives every person who is arrested or detained the right to be informed promptly the reason for the arrest or detention and the nature of any charge that may be brought against that person.

[112] I accept the evidence of Corporal Nair that the Accused was arrested and detained at about 11 pm on 12 February 2019. I accept Corporal Nair’s evidence that he informed the Accused that he was wanted for questioning by the CID. The Accused at that stage was not informed of the nature of any charge that may be brought against him.

[113] I accept the evidence of Corporal Dutt that the Accused was informed of the reason for his detention during the caution interview but not the nature of the charge that may be brought against him. At that stage the Accused was only being considered a suspect due to his association with Sam Amine, Mangolini and Veisevuraki on 9 February 2019 in Suva.

[114] When the Accused was arrested on the night of 12 February 2019 his hotel room was searched under a judicial warrant. The defence submits that the search and seizure was unlawful because the warrant did not authorize a search by night, the search warrant did not specify the items to be searched and the warrant was issued under the wrong provision of the Criminal Procedure Act.

[115] The Search Warrant (PE 7) that was issued in this case was in a standard Form approved under the repealed Criminal Procedure Code. But the substance of the warrant was contrary to section 98 of the Criminal Procedure Act of 2009. The Form does not matter. The substance matter. The search warrant described the place to be searched and the items to be searched. The warrant was issued after it was sworn before a justice of peace authorized by section 98 of the Criminal Procedure Act.

[116] Section 99 of the Criminal Procedure Act states that every search warrant may be issued on any day (including Sunday) and may be executed between the hours of sunrise and sunset, but the magistrate or justice of peace may by the warrant, specifically authorize the police officer to execute it at any hour. My reading of section 99 is that there is no mandatory requirement for a police officer to obtain an express authority from a magistrate or justice of peace to execute a search warrant during nighttime. A magistrate or justice of peace may give an express authority, but in the absence the sanction of a magistrate or justice of peace, a search warrant may still be executed at nighttime by a police officer.

[117] The police compiled a search list of all the items that were seized from the Accused’s hotel room on 12 February 2019. The search list (PE 4 & 5) had been acknowledged by the Accused.

[118] I am satisfied as to feel sure that the arrest and detention of the Accused and the search of his hotel room on 12 February 2019 was lawful.

[119] The prosecution has not tendered any of the items seized on 12 February 2019 as evidence against the Accused in respect of the charge he is facing. There is no direct link between the search and seizure including the strip search of the Accused on 12 February 2019 and the charge of possession of cocaine. Even if the search and seizure was unlawful, it has no consequence to the charge before the court.

[120] The defence submits that the results of the search at the Caubati property on 14 February 2019 should be excluded from consideration because the Accused was continuously detained in police custody without a charge beyond 48 hours in breach of his right under section 13 (1) (f) of the Constitution.

[121] Section 13 (1) (f) of the Constitution provides that a person arrested or detained has a right to be brought before a court as soon as reasonably possible, but in any case not later than 48 hours after the time of arrest, or if that is not reasonably possible, as soon as possible thereafter.

[122] The evidence led by the prosecution is that the Accused was arrested and detained at about 11 pm on 12 February 2019. The search and seizure of the drugs at the Caubati property was made before 11 pm on 14 February 2019.

[123] The search and seizure of the drugs and other physical exhibits at the Caubati property was made within 48 hours of the Accused’s detention.

[124] The Accused’s evidence is that he was not released from police custody after the conclusion of his first caution interview on 15 February 2019. He said that his detention continued from the time he was arrested in Nadi on 12 February 2019 until he was charged and produced in court on 18 February 2019.

[125] However, when the Accused’s second interview commenced on 15 February 2019 at 8.43 pm he was accorded with the first hour procedure under the Legal Aid Scheme. The interview record shows that the Accused was visited and advised of his rights by a lawyer from the Legal Aid Scheme. The interview was suspended overnight and recommenced on 16 February 2019 at 12.27 pm. The interview record shows that the Accused’s counsel of choice was present with him throughout the interview until it was concluded on 17 February 2019 at 2.10 pm. At no stage the Accused or his counsel took an objection that he was continuously detained beyond 48 hours without a charge. There is no evidence of any complaint by the Accused regarding violation of his constitutional rights by the police made to the relevant authorities until the trial commenced.

[126] I prefer and accept the evidence of the police officers that the Accused was released from police custody on 15 February 2019 on the advice of the Director of Public Prosecutions and re-arrested shortly thereafter on the allegation of being found in possession of an illicit drug.

[127] There is no law prohibiting the police from re-arresting a suspect on a different allegation immediately after being released from custody.

[128] When the Accused was re-arrested and detained, he was interviewed under caution on an allegation of being found in possession of an illicit drug. That interview continued for two days until 17 February 2017 when the Accused was charged with being found in possession of an illicit drug and produced in court the following day. The caution interview and the charge contains exculpatory statements from the Accused.

[129] I am satisfied that there has not been any breach of the Accused’s constitutional rights to exclude the evidence of the search that the police conducted at the Caubati house on 14 February 2019.

[130] It is not in dispute that on 14 February 2019 the police found 39.5 kg of cocaine concealed in the master bedroom of the house at Caubati Road. There is no suggestion that the Accused had lawful authority to possess an illicit drug.

[131] The real issue for consideration is the element of possession, that is, whether the Accused was in possession of the drugs?

[132] To prove possession, the prosecution relies upon the factual presumption provided by section 32 of the Illicit Drugs Act. For the presumption to apply, the prosecution must prove beyond reasonable doubt that the premises in which the drugs were found was under the control of the Accused.

[133] The prosecution alleges that the Accused was in joint possession of the drugs with his father, Tallat Rahman.

[134] The defence case is that the premises in which the drugs were found was not under the control of the Accused.

[135] The question whether the house in which the drugs were found under the control of the Accused is a question of fact.

[136] The Accused does not dispute that the house at Caubati Road in which the drugs were found was his residence whenever he visited Fiji from Canada. The property was a rental property. The legal tenant was the Accused’s father, Tallat Rahman. Tallat Rahman moved into property sometime in November 2017.

[137] When the Accused first arrived in Fiji in October 2017 he lived with his uncle at Marou Street but then moved in to live with his father at Caubati Road from November 2017 till January 2018 when he returned to Canada. Whenever he returned to Fiji he lived with his father at Caubati Road. His second trip to Fiji was for a duration of two months from 8 May 2018 to 5 July 2018. His third trip to Fiji was for a duration of two months from 7 September 2018 to 3 November 2018. His fourth trip to Fiji was for a duration of about a month till he left for New Zealand for one week on 21 December 2018. When he returned to Fiji on 31 December 2018 he continued to live at Caubati Road until he was arrested on 12 February 2019.

[138] The Accused had his own bedroom in the house. He had personal effects in his bedroom. There is evidence that the Accused had an ability to regulate his and his father’s affairs from the house. The Accused was free to entertain his own guests and as well his father’s guests in the house. The Accused had the keys to the house. He was free to leave and return to the house at any time. In other words, the Accused had a free access to the property at any time he was in Fiji. Above of all, he had free access to all the rooms including the master bedroom occupied by his father.

[139] When the discovery of the drugs were made inside the master bedroom, the Accused was the only person who had a free access to the house. The Accused’s father had left for New Zealand on 8 February 2019. The Accused was in Suva on 9 February 2019. He admitted meeting three unknown men in Suva on 9 February 2019. The security guard saw the Accused returned to his home drunk on 10 February 2019. From 31 December 2018 till 12 February 2019 the Accused was the legal occupant of the house.

[140] The caretakers had the keys but their evidence is that they had only accessed the property once or twice in the past when the tenant’s told them to attend to something. The caretakers did not have a free access to the house like the Accused.

[141] Based on the evidence I am satisfied so as to feel sure that the house in which the drugs were found was under a joint control of the Accused and his father. There is a factual presumption that the Accused was in possession of the drugs unless the Accused can show that it is more likely than not that he didn’t know or believe or had reason to suspect that the premises under his control had an illicit drug of some sort.

[142] If the account given by the Accused to the court is or may be true, then he is not guilty of the offence. He did not know or believe or had reason to suspect that the premises under his control had an illicit drug of some sort.

[143] The credibility of an accused and reliability of his evidence is to be assessed like any other witness. There are no set rules for assessing credibility and reliability of evidence. Demeanour, spontaneity and consistency are important tools but not an exhaustive list. What is required is a common sense approach to determine whether the evidence of a witness ring a bell of truth to be reasonably reliable. I am entitled to accept part of a witness's testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[144] I observed the demeanour of the Accused during his video interview and during his evidence in court. He has a calm demeanour. He was very composed when giving his answers to the questions put to him. He was spontaneous and consistent about one matter, that is, he did not know that the premises he was occupying had an illicit drug of some sort.

[145] However, he was evasive or inconsistent on other material issues during his caution interview and his evidence in court.

[146] The Accused was reluctant to reveal the identities of the men he met at Gloria Jeans and Nandos on 9 February 2019 to police during his caution interview. I quote from the transcripts of the interview (PE 25):

CPL Avinesh	You also can tell me where you were on the 9^th of February 2019?
Joshua	9^th of February
CPL Avinesh	It was a Saturday....
Joshua	Yeah, I was at Damodar City for majority of the day. I know I wouldn’t have been at home for other portions of it....
CPL Avinesh	So did you, what time did you went from home to this?
Joshua	I am not sure. Maybe between 11 and 12, around that.
CPL Avinesh	So can you tell me again which place you went?
Joshua	Damodar City
CPL Avinesh	Damodar City
Joshua	Yeah
CPL Avinesh	So you went to any specific shop or you were just roaming around the complex?
Joshua	When I first got there I went to Mamasita’s and had 2 beers with a friend there, and then I went out to Gloria Jeans to have a coffee. Sat by myself outside on the patio area. Gloria jean had ran to 3 guys but 2 of guy knew that when I got coffee he came out, I started talking to them. They asked me if I was hungry, I said yes, we went out to have lunch at Nandos restaurant in Laucala Bay. I had lunch there, then I came back to Damodar City and I went to Bad Dog Café for a couple of hours with another friend and then to my knowledge, I went home.

Later
Inspector Muktar	Did anybody called you to go to Gloria Jeans Coffee Shop?
Joshua	No.
CPL Avinesh	So when you went to Gloria Jeans, you met anybody?
Joshua	I went there by myself, I ordered a coffee so I went out and sat on the patio for maybe 5 minutes or 10 minutes by myself, and then there was a group of guys that came walking and they looked kind of familiar but, I don’t really know names but, they walking and they walked passed me on the entrance they just said ‘oh hey’ and I just say hey back to them, they asked if I was sitting there by myself and I said yes. They went inside, grabbed a coffee, came outside and sat down with me because I was sitting by myself, so....
CPL Avinesh	So you didn’t know them personally?
Joshua	I don’t know them well, no, type of people that you know..... somebody passing, familiar face that kind of thing. I couldn’t tell you what their names are
CPL Avinesh	So you can you describe or explain to me when you say familiar face, what do you mean by that?
Joshua	I mean like, if you go to bars and things like that in Fiji or in restaurant and things, you tend to see a lot of the same people around the same kind of places. So you run into somebody you may not exactly remember their name or know much about them, but you that you‘ve met them before. Fiji is not a big place.
CPL Avinesh	So you are telling me that you have seen them somewhere around Fiji?
Joshua	Yeah
CPL Avinesh	So you are telling me that they are not locals, they are from overseas?
Joshua	Yeah that would be
CPL Avinesh	Can you explain to me why you are saying they are not from Fiji, they are from abroad?
Joshua	They have accents.
CPL Avinesh	Anything apart from that you think you want to tell us?
Joshua	2 of them are white.
CPL Avinesh	So who’s the third guy?
Joshua	I don’t know, he looks like an islander. Maybe like half Fijian and half Samoan or Maori or something like that, I don’t know. He has darker skin than the other 2 guys.
CPL Avinesh	So 4 of you, did you have any chat or something, you discussed something or.... you had a meeting or something?
Joshua	Not a meeting or anything like that, we just chit chatted I don’t know exactly what about but, just kind of you know, talked a bit, what random people do on a Saturday I guess .
CPL Avinesh	So if you do remember, do you know a little bit of what you talked about or discussed about, can you explain it to me?
Joshua	No, to be honest I cant remember what I was talking about with my friends at Mamasita’s so....
Inspector Muktar	Have you ever talked to them on a phone or conversations, any conversation did you have before meeting them?
Joshua	No
Inspector Muktar	You saying that [inaudible 12.42.58] when you met these 3 gentlemen, and you are saying that they were familiar to you but you don’t know them?
Joshua	I don’t know them personally, I don’t know their names, I don’t know where they live, I don’t know what they do that kind of things....recently I’ve met a lot of people here in Fiji.
Inspector Muktar	Then later on you accompanied them to lunch, can you explain us if I meet you today. If somebody meets you in a spur of a minute, and after that you go and have your lunch. Is there anything common you know? Do you have anything common between you 3 or 4?
Joshua	Sorry I don’t understand the question
Inspector Muktar	In a spur of a few minutes you met them at Gloria Jeans to have coffee, and after without a chat, I’m not saying you had any conversation and then suddenly you are going for a lunch at another place which is far from where you met.....
Joshua	Its pretty close by actually
Inspector Muktar	Its close but is not at the same places, and then can you explain to us if there were something common, understating between you all sitting down there?
Joshua	O don’t think so. I think we just got along well and they asked if I was hungry, I was hungry so....
CPL Avinesh	So you were telling me you went along well, what you mean by that?
Joshua	I don’t know sometimes you know you just, when you are sitting with people you have that, good feeling, happy laugh stuff like that.
CPL Avinesh	So how many hours and how many minutes you stayed at Gloria Jeans?
Joshua	I think 20 minutes
CPL Avinesh	So what happened after the 20 minutes?
Joshua	We went to lunch, at Nandos
CPL Avinesh	So that means the 4 of you travelled to Nandos to have lunch?
Joshua	Yeah
CPL Avinesh	How did you, were able to go to Nandos? Did you walk or you...?
Joshua	No one of the guy had a car, so he drove us
CPL Avinesh	Who had a car?
Joshua	The islander guy
CPL Avinesh	The islander guy?
Joshua	Yeah, the darker one
CPL Avinesh	So you are telling me all this while you were chatting at Gloria Jeans, you never asked his name or .....?
Joshua	No to be honest I would be embarrassed because they seem to recognize me and I seem to recognize them but I don’t know who their names were and they didn’t know who my name was. I didn’t want to ask, I assumed that we had met somewhere before and I didn’t want to bring it up again so, I get a bit socially anxious like that.
Inspector Muktar	How did you go to the Nandos?
Joshua	By a car
Inspector Muktar	... and where did you take your seat to that car?
Joshua	When we went to Nandos I was in the passenger seat, in the front.
Inspector Muktar	Front passenger seat?
Joshua	Yeah
Inspector Muktar	Who paid the food at Nandos?
Joshua	The short little stocky hair with the baseball cap.
Inspector Muktar	Can you tell us his name?
Joshua	No
Inspector Muktar	How did you met him, he was European?
Joshua	He is a white guy
Inspector Muktar	A white guy is not European?
Joshua	True, I don’t know what you mean, do you mean like from Europe?
Inspector Muktar	No I mean [inaudible 12.47.13] he is from where. Can you tell us where he’s from?
Joshua	No, not from Fiji. One of those places which has a British sounding accent
Inspector Muktar	Was his name Sam?
Joshua	I have no idea what his name was
Inspector Muktar	Do you know where he is from?
Joshua	No, I don’t know for sure
Inspector Muktar	Initial meeting of a stranger on the street always a person should know whom he is talking to and where he is from. What do you have to say for that?
Joshua	That’s your opinion
Corporal Avinesh	So you telling me after they tell you to go to have a meal, you just go with them?
Joshua	Not anywhere but they asked if I wanted to go for lunch at Nandos, so I knew where it was, I know it was close by, I was hungry, I wanted to try the food.
Inspector Muktar	Have you ever been to Nandos before?
Joshua	No, obviously I don’t know
Inspector Muktar	Was it the first time you went to Nandos?
Joshua	In Suva, yeah
CPL Avinesh	So when you entered Nandos Restaurant which table you were sitting in?
Joshua	Beside the back area. So the counter is like here, and you just walk all the way down to that little raised up platform there like that cables on the side so its near the washroom.
CPL Avinesh	Was it a table of 4, a table of 8 or 10?
Joshua	Its like one of those you know like that community style one, big long table with a bench and that.
CPL Avinesh	So all facing one side, or you were facing each other?
Joshua	Like 2 here and 2 here like across from each other
CPL Avinesh	So you were facing each other?
Joshua	Yeah
CPL Avinesh	2 one side and another 2 the other side?
Joshua	Yeah, Like how we are all sitting now
CPL Avinesh	So what meal did you ordered at Nandos?
Joshua	I had a chicken wrap
CPL Avinesh	And the other friends?
Joshua	I don’t know they had some kind, they had a lot of food. I don’t know, they are much bigger than I am.
CPL Avinesh	So you might have waited quite long for the food to arrive, like about 20 minutes, 30 minutes?
Joshua	No, about 5 minutes or so. It wasn’t that long.
Inspector Muktar	So once sitting and eating with 4 people who you say they are familiar and you don’t know them. What was your conversation all this time?
Joshua	I don’t recall exactly.
Inspector Muktar	Did you talk about the food, what type of food is that or, something?
Joshua	Probably something along those lines yeah.
CPL Avinesh	Did you meet somebody else at Nandos while you people were having your lunch?
Joshua	No
Inspector Muktar	Where did you go after having your lunch at Nandos?
Joshua	They dropped me back off at Damodar City.

[147] In his evidence, the Accused admits meeting three men at Gloria Jeans, Damodar City and then accompanying them to Nandos, Laucala Bay for lunch on 9 February 2019. His evidence is that they did introduce themselves to each other because he thought it was a general understanding that they may have seen each other in passing by before.

[148] The identity of the three men that the Accused met at Gloria Jeans on 9 February 2019 has been reliably established by the evidence led by the prosecution. The three men were Sam Amine, Mangolini and Veseivuraki. But the Accused’s position is that he did not know that the three men he met at Gloria Jeans were called Sam Amine, Mangolini and Veseivuraki.

[149] I accept the prosecution evidence that Sam Amine and Mangolini drove a rental car from Nadi, picked Veseivuraki at Maui Bay and then drove to Gloria Jeans Damodar City to meet the Accused. From there all four went together on the same vehicle to Nandos and had a meeting there before exiting the restaurant one by one. They then boarded the same vehicle and drove to Damodar City where the Accused got off.

[150] The evidence led by the prosecution reveal that the meeting at Gloria Jeans and Nandos were not fleeting encounters with strangers. It was an organized meeting with acquaintances.

[151] I find the evidence of the Accused that he did not know the identity of the three men he met on 9 February 2019 at Gloria Jeans and Nandos not plausible.

[152] The Accused was also evasive or contradictory about the hand written notes (PEs 18, 19, 20, and 21) found in the house during the search on 14 February 2019. I quote from the transcripts of the interview (PE 25):

Cpl Avinesh	Mr Joshua we also found a few notes which was obtained from your room as you were with the Police Officers in you room while searching. So I just want to ask you about a few contents hear to clarify what does it actually means. Do you agree?
Joshua	Sure.
CPL Avinesh	(shows papers)
Joshua	This is don’t know. Not sure.
CPL Avinesh	Can you inform me what this context ‘[Amaze growers/Romeo 13.36.40]’. What do you mean by that?
Joshua	I don’t know, I don’t think that was in my room.
CPL Avinesh	It was seized from your room with exercise books and the notepads. It was found when you were with the police officers in the room?
Joshua	Do you mind if I can see that..... because I am positive these were’nt in my room. These ones yeah they weren’t in my room.
CPL Avinesh	What about these ones?
Joshua	The notepad.
CPL Avinesh	This here?
Joshua	Yeah.
Inspector Muktar	Is this your writing on this notepad? The writing does it belong to you?
Joshua	Yeah it could be my writing yeah.
Inspector Muktar	It’s your writing thank you.
Joshua	Could be, because my dad writes very similarly.
Inspector Muktar	But can you explain if it is your writing, can you explain what is written on it?
Joshua	No.
Inspector Muktar	There are context on this note hear, which you can tell us what it means? (hands over notepad)
Joshua	Yeah, I don’t know. I ‘m sorry but I don’t know
CPL Avinesh	What can you say about the writing, does it belong to you or?
Joshua	Yeah I would say its either mine or my dad’s handwriting.
CPL Avinesh	You said earlier that this notebooks belongs to you, notepads belongs to you which was seized from your room on top of the iron board. Do you agree?
Joshua	Yeah, there’s no iron board in my room so....
CPL Avinesh	If I am corrected I think it was on top of the table?
Joshua	Yeah
CPL Avinesh	Thank you, can you tell me what does these ‘karate, white, black, and orange’ what does it mean to you?
Joshua	Good question, I don’t really remember
CPL Avinesh	Can you tell me what this word ‘orange’ and the set of address down there? What does orange mean?
Joshua	No I don’t know, sorry. Maybe I was taking notes of the company
CPL Avinesh	So you are telling me that you wrote all this things and its all in your handwriting and this is your notepad. But you don’t know what you wrote?
Joshua	No, I can see what I wrote but I’m saying that I couldn’t, I think I might have been writing down stuff for my dad alot, I write so....
CPL Avinesh	So you don’t understand anything about what is written on top here? (shows papers)
Inspector Muktar	Can you please explain what is written? Is it a short call or something you can tell us?
Joshua	I don’t know, there’s a lot of stuff like this my dad asks me to write stuff down for him, if he would be on the phone or reading something he’d say hey just quickly write this stuff down so... This one I do know. That one I wrote for sure but, that one is also mine. This one’s mine and this one’s mine. Just these ones, I don’t know the meaning of them. I don’t deny that I wrote them down but I don’t know the meaning, only these ones I do.
CPL Avinesh	So you are telling me all of these papers, you wrote it? From here and here all these are the same writing and its yours?
Joshua	Yeah most of them I wrote them, but this ones I can explain to you guys. Those ones I don’t know what’s the meaning of them are, anything pass of that I wrote them.
Inspector Muktar	All these which you can’t explain to me contains names and addresses of people in New Zealand, Australia... so you are telling us you don’t know what is this?
Joshua	No I don’t any more information about that other than what you guys can read on the piece of paper
CPL Avinesh	So do you any person by the name of [Necani Bitu 13.42.13]?
Joshua	No.
CPL Avinesh	Do you know any person by the name of [Jack Trainer 13.42.19]?
Joshua	No.
CPL Avinesh	Any person by the name of [Mohammed Al Rasad 13.42.32]?
Joshua	No.
Inspector Muktar	Where did you get the address from?
Joshua	Like I said, sometimes my dad tells me to write stuffs down and I write it down for him. Nothing further than that.
Inspector Muktar	You write it for your dad, but its not with him its with you all in your own
Joshua	Well that, its, in that house. He can come in and out of the house. He’s just not that organized with stuffs.
Inspector Muktar	There’s some amounts written here, of ‘karate’ is amounting to $228,500 and ‘white’ is $327,000. What is Karate and what is white?
Joshua	I’m not entirely sure. All I know is karate is some kind of mix martial art thing or what, but that’s all I know.
Inspector Muktar	Is this white depicts for [green 13.43.47]?
Joshua	I don’t know. If you want to I can explain those other notes the ones that I wrote. I can explain those ones but ...

[153] The Accused in his evidence said that the notes were found inside the house during the search but not inside his bedroom as claimed by the police officers. His evidence is that the notes were found in the living room.

[154] It does not really matter where in the house the notes were found. The real issues regarding the notes are whether the notes are in the Accused’s hand writing and whether he knew what the notes meant.

[155] The prosecution relies upon the notes (Exhibits 18, 19 and 20) to link the Accused to drug offences in New Zealand involving his father, Tallat Rahman. The relevance offered by the prosecution for that evidence is that it rebuts the Accused’s evidence that he didn’t know or believe or had reason to suspect that the house he was staying had an illicit drug of some sort.

[156] I accept the Accused’s evidence that the notes were found inside the house during the search on 14 February 2019 as true. But I do not believe his evidence that the handwriting may not be his but his father’s handwriting as they have a similar handwriting, or that he did not know what the notes meant.

[157] The evidence of the close relationship that the Accused had with his father does not tally with his account that he cannot distinguish his handwriting from his father’s handwriting. The Accused was consistently evasive in the caution interview to commit that the notes are in his hand writing. He was consistently contradictory in his evidence to assert that if the notes are in his hand writing then he did not know what they meant.

[158] The Accused in his evidence has presented himself as an intelligent person who has completed his tertiary qualifications in Business Administration in Canada. He may not have had any direct interests in his father’s businesses but he knew a lot about his father’s businesses. He kept his father’s money in his bank account when his father moved to Fiji for good to do business. On occasions his father made him transfer money from Canada to Fiji although he was not aware of the purpose for which the funds were required.

[159] He made a number of trips to Fiji in 2018 to visit his father. His evidence is that he stayed with his father and that his father financially supported him by giving him allowances. He entertained his father’s overseas friends on occasions by taking them out to see land for business options. He had his father’s bank card when his father went to New Zealand on 8 February 2019. He admitted using his father’s bank card to make a payment for the change of air tickets of his two business associates on 12 February 2019 and in return receive a reimbursement in foreign currency from them. This evidence show that the Accused had access to funds that his father kept in bank in Fiji.

[160] The trip that the Accused made to New Zealand in December 2018 was also funded by the Accused’s father, Tallat Rahman. The Accused admits staying in the same hotel with his father and that his father gave him an allowance of $2000.00 or $3000.00 before returning to Fiji on 23 December 2018.

[161] Sergeant Espinosa’s evidence that on 22 December 2018 Tallat Rahman and the Accused delivered a bag with cash to Mr Timu who resided at 9 Hendry Avenue, Hillsborough for the sale of methamphetamine. Sergeant Espinosa said that Mr Timu pleaded guilty to importing methamphetamine in relation to the consignment addressed to Ben Hura of 9 Hendry Avenue. The same name and address are contained in the note (PE 18) found in the house occupied by the Accused and Tallat Rahman in Fiji.

[162] I find Sergeant Espinosa’s evidence in relation to the Accused and his father’s involvement in paying money to Mr Timu for the importation of methamphetamine which his father and Mr Timu pleaded guilty, to be reasonably reliable. The Accused by his own admission places himself with his father existing the hotel with bags on 22 December 2019. According to travel history records, Tallat Rahman was in New Zealand from 18 December till 23 December 2018 while the Accused was in New Zealand from 21 December till 31 December 2018.

[163] I find Sergeant Espinosa’s evidence that Tallat Rahman pleaded guilty to importing methamphetamine in relation to a consignment that arrived in New Zealand from USA on 4 February 2019 and was addressed to Necani Little of 1/4 Crewe Close, Albany, Auckland with a phone contact number 0214174269. These details appear in the note (PE 19) found in the house occupied by the Accused and Tallat Rahman in Fiji.

[164] I accept Sergeant Espinosa’s evidence that Mangolini was called Karate and Veisevuraki was called Mr White, and that Mangolini was known as Veisevuraki’s associate to New Zealand Police as reasonably reliable. The words “KARATE” and “WHITE” appear in the note (PE 20) found in the house occupied by the Accused and Tallat Rahman in Fiji.

[165] The identity of Mangolini and Veisevuraki was established by the police officers in Fiji. The surveillance photos support the oral evidence of the police officers that the Accused met Mangolini and Veisevuraki in Suva on 9 February 2019, a day after Tallat Rahman had left for New Zealand.

[166] The evasiveness and contradictions in the evidence of the Accused lead me not to believe his account that he didn’t know or believe or had reason to suspect that the house he was staying had an illicit drug.

[167] On the contrary I find the prosecution has rebutted the Accused’s evidence that he didn’t know or believe or had reason to suspect that the house he was staying had an illicit drug. The only use I make of the evidence of the Accused’s involvement to the drug offences that his father pleaded guilty in New Zealand is to rebut his evidence that he didn’t know or believe or had reason to suspect that the house under his and his father’s control at the relevant time had an illicit drug.

[168] I am satisfied beyond reasonable doubt an inference of guilt is the only rational conclusion available from the combined effect of all the facts proved by the prosecution.

[169] I am satisfied beyond reasonable doubt that the Accused, without lawful authority was in joint possession of an illicit drug with another between 23 January 2019 and on 14 February 2019 at Caubati in the Central Division.

Conclusion
[170] The verdict of the Court is that Accused is guilty as charged.

High Court of Fiji

State v Rahman [2021] FJHC 287; HAC063.2019 (16 April 2021)