State v Ho [2025] FJHC 473; HAC022.2024 (31 July 2025)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 022 OF 2024

STATE

-v-

1. JUSTIN STEVEN MASHI HO
2. DAVID OTTO HERITAGE
3. LOUIE FRANK PENIJAMINI LOGAIVAU
4. RATU APOROSA DAVELEVU
5. SAKIUSA TUVA
6. JALE AUKEREA
7. RATU OSEA NAIVALUNILOTU LEVULA
8. CATHY TUIRABE
9. VILIAME COLOWALIKU

Counsel:
Mr. J. Rabuku with Mr J. Nasa for the State
Mr. I. Khan with Mr. S. Heritage for 1^st Accused
Ms. L. Volau for 2^nd Accused
Mr. M. Anthony with Mr. R. Bancod for 3^rd Accused
Mr. S. Nand with Ms. V. Cava for 4^th Accused
Mr. T. Varinava for 5^th Accused
Mr. E. Wainiqolo for 6^th Accused
Mr. M. Naivalu for 7^th Accused
Ms. B. Kumari for 8^th Accused
Ms. P. Reddy for 9^th Accused

Dates of voir dire Hearing: 23 April 2025- 15 May 2025
Dates of Hearing 09 June - 03 July 2025
Closing Submissions: 11, 15 July 2025
Date of Judgment: 31 July 2025

(The names of all immunity witnesses are suppressed)

JUDGEMENT

[Illicit Drugs- Joint Possession- Importation-Proceeds of Crime- Defence of Duress-Accomplice Evidnce- S 32 Presumption- Evidential Burden]

Introduction

1. Many foreigners come to Fiji in yachts to enjoy its stunning natural environment, unique cultural heritage and the warm hospitality its people offer. However, the three foreigners involved in this case were on a different mission in their unflagged superyacht. The yacht was loaded with more than 4.5 tonnes of methamphetamine (estimated at FJD 2 billion in value), the largest illicit drug consignment ever found in the Pacific. The consignment was transferred to a local barge in the high seas and offloaded safely at Fantasy Island near Denarau, the main tourism hub in Fiji. The consignment was then transferred to various locations undetected for more than three weeks until it was finally detected and seized by the police in two different places near Nadi, thanks to a local informant. Nearly fourteen suspects were arrested and only nine of them were indicted on multiple counts. The rest were either released or granted immunity to be made witnesses for the State.
   
2. This Judgment consists of seven parts. The information filed by the Director of Public Prosecutions (DPP) is reproduced in Part I. In Part II, the elements of the offences, the law relating to definition of each offence and the burden of proof are briefly discussed. In Part III, the legal principles relevant to the issues and witnesses are examined. Part IV is devoted to discuss the law relating to defence of duress. Part V summarises the evidence presented at the trial. Approximately forty witnesses testified for the Prosecution and seven for the Defence. The evidence adduced in voir dire hearing was adopted by consent. Although some evidence from certain witnesses is not strictly relevant to the issues raised at the trial, I have provided a summary of each witness to give a clear overview of what transpired during the trial. In Part VI, the evidence is analysed and evaluated to reach an appropriate decision on each count and against each accused separately. Part VII concludes with the findings and the judgment.

Part I

COUNT 1

Statement of Offence

UNLAWFUL IMPORTATION OF ILLICIT DRUGS: Contrary to Section 4 (1) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JUSTIN HO STEVEN MASHI HO and DAVID OTTO HERITAGE between the 01^st day of November 2023 to the 23^rd day of December 2023, at Nadi in the Western Division, without lawful authority, facilitated the importation of in excess of 4.15 Tonnes of methamphetamine, an illicit drug.

COUNT 2

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JUSTIN HO STEVEN MASHI HO, DAVID OTTO HERITAGE, and LOUIE FRANK PENIJAMINI LOGAIVAU on the 23^rd day of December, 2023, Denarau, Nadi in the Western Division, without lawful authority, were in possession of in excess of 4.15 Tonnes of methamphetamines, an illicit drug.

COUNT 3

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (b) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JUSTIN HO STEVEN MASHI HO and LOUIE FRANK PENIJAMINI LOGAIVAU on the 23^rd day of December, 2023, at Nadi in the Western Division, without lawful authority, engaged in dealing for the transfer and transport of in excess 4.15 Tonnes of methamphetamines, an illicit drug from David’s Marine Repairs Yard, Industrial Road, Denarau, Nadi to Subzero Car Wash/I yard, Denarau Industrial Road, Denarau, Nadi.

COUNT 4

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JUSTIN HO STEVEN MASIH HO, and LOUIE FRANK PENIJAMINI LOGAIVAU on the 24^th day of December, 2023, at the Subzero Car Wash/I yard, Denarau Industrial Road, Denarau, Nadi in the Western Division, without lawful authority, were in possession of in excess of 4.15 Tonnes of methamphetamines, an illicit drug.

COUNT 5

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (b) of the Illicit Drugs Control Act 2004.

Particulars of Offence

LOUIE FRANK PENIJAMINI LOGAIVAU, RATU APOROSA DAVELEVU, and ANOTHER between the 28^th day of December, 2023 and the 29^th day of December, 2023 at Nadi in the Western Division, without lawful authority, engaged in dealing for the transfer and transport of in excess 4.15 Tonnes of methamphetamines, an illicit drug from Subzero Car Wash/I yard, Denarau Industrial Road, Denarau, Nadi to Motorex Business Centre, 15 Nadi Back-Road, Nadi.

COUNT 6

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

LOUIE FRANK PENIJAMINI LOGAIVAU and RATU APOROSA DAVELEVU on the 29^th day of December, 2023, at Motorex Business Centre, 15 Nadi Back-Road, Nadi in the Western Division, without lawful authority, were in possession of in excess of 4.15 Tonnes of methamphetamines, an illicit drug.

COUNT 7

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (b) of the Illicit Drugs Control Act 2004.

Particulars of Offence

SAKIUSA TUVA & ANOTHER between the 29^th day of December, 2023 to the 14^th day of January, 2024, at Nadi in the Western Division, without lawful authority, engaged in dealing for the transfer and transport of in excess 4.15 Tonnes of methamphetamines, an illicit drug from Motorex Business Centre, 15 Nadi Back-Road, Nadi to Voivoi, Legalega, Nadi.

COUNT 8

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JALE AUKEREA, SAKIUSA TUVA, RATU OSEA NAIVALUNILOTU LEVULA, CATHY TUIRABE and VILIAME COLAWALIKU between the 29^th day of December, 2023 to the 14^th day of January, 2024, at Voivoi, Legalega, Nadi in the Western Division, without lawful authority were in possession of in excess of 4.15 Tonnes of methamphetamines, an illicit drug.

COUNT 9

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5 (b) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JALE AUKEREA, SAKIUSA TUVA and ANOTHER between the 13^th day of January, 2024 to the 20^th day of January, 2024, at Maqalevu Nadi in the Western Division, without lawful authority engaged in dealing for the transfer, transport and storage of 1.05 Tonnes of methamphetamines, an illicit drug from Voivoi, Legalega, Nadi to Maqalevu, Narewa.

COUNT 10

Statement of Offence

POSSESSION OF PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME: Contrary to Section 70 (1) (a) of the Proceeds of Crime Act 1997.

Particulars of Offence

JUSTIN HO STEVEN MASHI HO on the 23^rd day of January 2024 at Taveuni in the Northern Division, possessed cash amounting to FJD 21,691.60, AUD 450.00 and USD 100.00 suspected of being proceeds of crime.

COUNT 11

Statement of Offence

POSSESSION OF PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME: Contrary to Section 70 (1) (a) of the Proceeds of Crime Act 1997.

Particulars of Offence

LOUIE FRANK PENIJAMINI LOGAIVAU on the 23^rd day of January 2024 at Taveuni in the Northern Division, possessed cash amounting to FJD 112.25 suspected of being proceeds of crime.

COUNT 12

Statement of Offence

POSSESSION OF PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME: Contrary to Section 70 (1) (a) of the Proceeds of Crime Act 1997.

Particulars of Offence

JALE AUKEREA on the 23^rd day of January 2024 at Taveuni in the Northern Division, possessed cash amounting to FJD 2100.85 suspected of being proceeds of crime.

3. I refer to the accused by their first name for my convenience and intend no insult to them in doing so. Before the trial began, the 5^th and the 8^th Accused pleaded guilty on their own free will to the charge/s relevant to them. Only the 1^st, 2^nd, 3^rd, 4^th 6^th 7^th and 9^th Accused stood trial. At the close of the Prosecution’s case, the Court heard submissions filed by the 4^th and the 9^th Accused on ‘no case’ applications. Having rejected those applications, the Court decided to put all the Accused to defence except for Count 11 against the 3^rd Accused, who was acquitted on that count, as there was no evidence against him.
   

Part II-

The Elements of the Offences

Importation of Illicit Drugs

4. Section 2 of the Illicit Drugs Control Act defines ‘import’ as follows:

...to bring or cause to be brought, into Fiji, and is a continuing process including any stage thereof until any item reaches the intended recipient (Emphasis added).

5. In State v Nikolic^[1], Goundar J, having referred to the interpretation given by the Australian Courts, defined ‘importation’ in the context of illicit drugs as follows:

[12] There is no ambiguity in the definition. According to the definition, importation is a continuing process. The actual act of importing ceases when an illicit drug reaches the intended recipient. The act of importing embraces activities both preceding and following the arriving of the goods, which are directly related, or proximate or incidental to, bringing the goods into the country. This interpretation is consistent with the interpretation given by the Australian courts to the word importation contained in the Australian narcotic legislation (R v Sukkar [2005] HSWCCA 54 (16 March 2005), R v Toe [2010] SASC 39 (26 February 2010), DDP Cth v Famer (a Pseudonym) and Ors [2017] VSCA 292 (17 October 2017)).

[13] Given that the act of importing is a continuing process and embraces all activities incidental to the bringing of the illicit drug into Fiji, the offence is committed upon the arrival of the illicit drug into Fiji and may extend to a period till the illicit drug reaches the intended recipient.

Possession of Illicit Drugs

6. ‘Possession’ in the context of illicit drugs is an elusive concept^[2] and is criminalised under Section 5(a) of the Illicit Drugs Control Act (IDCA). The IDCA does not define the term ‘possession’. According to Section 4 (a) of the Crimes Act, “possession”, “be in possession of,” or “have in possession” includes (a) not only having something in one’s own personal possession^[3] but also knowingly having anything in the actual possession or custody of another person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person^[4]
7. Possession is certainly not an absolute offence^[5]. Although the fault element or mens rea of the offence is not explicit in the definition, it consists of physical and mental (fault) elements^[6]. The physical element can either be custody or control. The mental element (mens rea) is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his/her possession (which is often to be inferred or presumed); and an intention to exercise possession^[7].
8. In the leading case of R v Warner^[8], Lord Morris of Borth-y-Gest expressed it this way at p 289:

In my view, in order to establish possession, the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it: A charge of possession of a controlled drug also requires proof of knowledge by the accused that what is in his possession is a controlled drug; although he need not know its exact nature.

9. In Lata v State^[9], the Court of Appeal referred to common law and held that the fault element of Possession is both knowledge and intention. The Court observed at [31]:

The law separates the physical element of possession (the corpus) from the mental element (the animus possidendi), i.e. the intention to possess. The fault element of possession is knowledge and intention. A person has knowledge of something if he or she is aware that it exists or will exist in the ordinary course of events. There are circumstances in which the requisite knowledge may be imputed. Knowledge includes deliberately shutting one’s eyes to the truth. Mere knowledge of the presence of illicit drugs cannot be equated with control. A person has intention with respect to possession if he or she means to engage himself or herself in possessing the substance. It is therefore implicit that in every case of possession, a person must know of the existence of the thing which he or she has or controls, although it may not be apparent whether a person knew of the quality of the thing in question. A person will not be liable if he neither believed, nor suspected, nor had any reason to suspect that the substance was an illicit drug. Lord Scarman remarked in Boyesen [1982] 2 A.E.R 161 adopting the description of possession given by Lord Wilberforce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 said: “The question to which an answer is required...is whether in the circumstances the accused should be held to have possession of the substance rather than mere control. In order to decide between these two, the jury should, in my opinion, be invited to consider all the circumstances...the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, he had at the time of receipt or thereafter up to the moment when he is found with it...” I would venture out to say the manner in which the substance was dealt with by the Accused, after it has been received, like in this case, would also be indicative of the intention of the person who received it. [Emphasis added]

10. The direction given by the High Court in State v Balaggan^[10] also confirms that ‘possession’ of illicit drugs consists of both intention and knowledge.

[34] Possession is proven if the accused intentionally had the substance in her physical custody or control to the exclusion of others, except anyone who was acting in concert with her in the alleged offence.

[35] The prosecution must also prove beyond reasonable doubt that in intentionally having such custody or control, the accused did so with the knowledge or belief that the substance was an illicit drug – not necessarily the illicit drug charged here, but a drug the possession of which is prohibited.

11. The Court of Appeal in Abourizk v State^[11], considering Section 23 of the Crimes Act, concluded that, in addition to intention and knowledge, recklessness too is part of the fault element of Possession under Section 5 (a) of the IDCA. However, the Supreme Court took a different view in Abourizk v State,^[12] and observed as follows:
    

...the mens rea – the mental element – which has to be present before someone can be said to be in possession of something. In cases of possession of illicit drugs, the mens rea consists of knowledge that what you have in your possession are illicit drugs. It is well established that you do not have to know what kind of drugs they are. But you do have to know that they are illicit drugs of some kind. All of that is settled law: see Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and R v Boyesen [1982] AC 768.

[27] In the interests of completeness, I should add that Prematilaka JA spent some time discussing the extent to which issues relating to intention or recklessness arise in cases of this kind. I put the question of intention to one side as I do not think it adds anything to the debate, but I can see how in one sense recklessness might be relevant. Knowledge of some particular fact has sometimes been equated to turning a blind eye to it. In other words, if you put your head in the sand to ignore something which would otherwise be staring you in the face, that might be capable of supporting the conclusion that you did indeed know of the matter in question. The alternative view is that closing your eyes to the obvious is simply a matter of evidence, and nothing short of actual knowledge will do. Again, that is not something which can affect the outcome of this appeal. The prosecution did not ask the judge to convict the petitioners on that basis.

Joint Possession of Illicit Drugs

12. When drugs are found in a house, car or other location occupied by more than one person, the prosecution must establish that they jointly possessed the drug to the exclusion of others, except for themselves, in order to prove joint possession. Section 4 of the Crimes Act states that “possession,” “be in possession of,” or “have in possession” includes – (b) .....if two or more persons are involved and any one or more of them, with the knowledge and consent of the others, has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.
13. In Mohammed v State^[13], the drugs were found hidden, stacked into the rear bumper of a car with the two defendants, the driver and a passenger. The allegation was that they were in joint possession of the drugs. The trial judge’s direction to the assessors was based on Section 32 factual presumption in IDCA. The assessors found both accused not guilty. However, the judge convicted both accused. The Court of Appeal quashed the conviction of the passenger (2^nd Accused) and confirmed that of the driver (1^st Accused). The Court found no evidence that the passenger either had control of the vehicle or knew that the drugs were hidden in the car. The Court also found the direction on ‘joint possession’ to be inadequate. Gamalath JA said at [35].

According to English Common Law, in attributing criminality for being in joint possession of an illicit drug, it should be based, not on the evidence of having the mere possession of the noxious item, but also on additional material to demonstrate that there had been extra beneficial factors that operate in furtherance of the interest of each confederate to the crime. (Emphasis added)

14. In Abourizk v State^[14], the Court of Appeal (majority) disagreed with this definition. They took the view that the common law definition should be read in conformity with Section 4 of the Crimes Act. Premathilake JA observed at [76]:

However, section 4 of the Crimes Act, though not exhaustive, interprets what the words “possession”, “be in possession of” or “have in possession” include and in my view, any English common law definition of possession should be adopted keeping section 4 also in mind and in a way not inconsistent with section 4. Section 4 of the Crimes Act also defines what joint possession is. In that context, it is my humble view that the additional element of ‘extra beneficial factors’ recognized in English common law as part of joint possession is not found in section 4 of the Crimes Act and therefore should not be regarded as part of the concept of joint possession in Fiji as stated in Mohammed v State AAU0092 of 2011: 12 December 2014 [2014] FJCA 216.

15. On appeal, the Supreme Court in Abourizk v State^[15] doubted if the Crimes Act definition applied to the IDCA and questioned whether Gamalath JA’s interpretation accurately represents the correct position of the Common Law, as none of the authorities cited addressed the ‘extra beneficial factor’ as part of joint possession. However, the Supreme Court concurred with the definition Gamalath JA referenced from Archbold. Keith J stated the following:

Gamalath JA did not identify what those “extra beneficial factors” might be, but he referred to one authority and one textbook. The authority was R. v Searle [1971] Crim L R 592 – a case about small quantities of drugs found in a car with a number of people in it. In that case, the Court of Appeal in England said that “an appropriate direction would be to invite the jury to consider whether the drugs formed a common pool from which all had the right to draw at will, and whether there was a joint enterprise to consume drugs together”.

Because that case was about the consumption of small amounts of drugs, it is of less help than the other matter to which Gamalath JA referred, which was of more general application. He cited the following passage from the 2012 edition of Archbold at para 27-69:

“An allegation of joint possession of drugs, where they have not been found on the person of any of the joint possessors, entails an allegation that each had the right to say what should be done with the drugs, a right shared with the other joint possessors.” (Emphasis added)

16. In State v Nikolic^[16] (Ruling on No Case to Answer), the Court appears to have addressed the notion of ‘joint possession’ based on the principle of ‘joint enterprise’ or ‘common intention’. The Court observed:

[18] The prosecution case is that the two accused acted together to commit the alleged drug offences. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, they are each guilty. The essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence and played his or her part in it however great or small so as to achieve that aim.

17. In Nikolic, a yacht carrying a foreign couple was intercepted in Fiji waters. The parcels of drugs were concealed in different sections of the vessel in such a manner that they were not visible to the naked eye. Although the Section 32 presumption was not explicitly discussed in the Ruling, the Court examined in whose control the vessel was at the time of its seizure. At the close of the prosecution’s case, the Court found the husband (2^nd Accused) to be in control of the yacht and found no evidence that the wife (1^st Accused) was in control of the yacht despite her being the owner.
18. In State v Abourizk^[17], the Judge sitting in this trial applied the Supreme Court definition and observed at [28] as follows:

Mr.Thangaraj argues that as Mohammed has not been overturned by the Supreme Court; the element of ‘extra beneficial factor’ should be read into the definition of joint possession. I would not agree. The Supreme Court, in a polite manner, has refused to accept Mr. Thangaraj’s argument. If his argument is accepted, it would be extremely difficult for the Prosecution to prove a case of joint possession in Fiji. Therefore, I proceed to decide this case on the assumption that the Archbold definition, which was accepted by the Supreme Court on joint possession, is the law in Fiji.

19. The issues of whether the High Court applied the correct definition of ‘joint possession’ in the context of illicit drugs and whether the Court of Appeal’s definition of ‘joint possession’ in Mohammed represents the correct law are now before the full Court as questions of law^[18].

Possession of Property Suspected of Being Proceeds of Crime

20. The State has laid counts 10 and 12 pursuant to Section 70(1)(a) of the Proceeds of Crimes Act (PCA). The relevant parts of the section read:

A person who after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Fiji any money, or other property, that may be reasonably be suspected of being proceeds of crime commits an offence and is liable on conviction to:- (a) If the offender is a natural person, a fine not exceeding $12,000 or imprisonment for a term not exceeding 2 years; or both

70(2) It is a defence under this section if a person satisfies the Court that the person had no reasonable grounds for suspecting that the property referred to in the charge was derived or inimize, directly or indirectly, from any unlawful activity.

21. The plain reading of Section 70(1)(a) suggests that it is sufficient for the Prosecution to establish on the balance of probabilities that the property/ money concerned may reasonably be suspected of being proceeds of crime. Once it is established that the property seized may reasonably be suspected of being proceeds of crime, the burden shifts to the accused to satisfy the Court that he/she had no reasonable grounds for suspecting that the property referred to in the charge was derived directly or indirectly, from any unlawful activity. The word ‘satisfies’ used in the section connotes that the accused has a persuasive burden to be discharged on the balance of probabilities.
    

Burden of Proof

The overall Burden of Proof

22. In a criminal matter, the Prosecution bears the burden of proof, which must be discharged beyond a reasonable doubt. In Woolmington v DPP^[19] laid down this golden thread rule as follows:

No matter what the charge or where the trial, the principle that the Prosecution must prove the guilt of the accused is part of common law”. The burden of proof of the accused person’s guilt beyond reasonable doubt lies with the Prosecution.

Section 32 Factual Presumption/ Burden of Proof

23. There was much debate in this jurisdiction as to whether Section 32 of the IDCA shifts the burden of proof to the defence. Section 32 of the Illicit Drugs Control Act 2004 provides for a factual presumption as follows:

Where in any prosecution under this Act, it is proved that any illicit drug, controlled chemical or controlled equipment was on or in any premises, craft vehicle or animal under the control of the accused it shall be presumed until the contrary is proved that the accused was in possession of such illicit drug, controlled chemical or controlled equipment [Emphasis added].

24. The debate was over whether the latter part of this section shifts the burden to the defence to prove that the accused was not in possession of the illicit drug where it has been established that the illicit drug was found on him/her or in any premises, craft vehicle or animal under the control of the accused.
25. In State v Mohammed (supra), the trial Judge’s direction to the assessors was based on the Section 32 presumption. The Court directed that the burden was on the defence to prove on the balance of probabilities that they were not in joint possession of the drugs. The Court of Appeal was in accord with the trial Judge and held that the 1^st accused had failed to discharge the legal burden. His conviction was affirmed.
26. The Court of Appeal, in its majority decision in Abourizk v State^[20], opined that this section does shift the burden to the defence to prove on a balance of probabilities that the accused was not in possession of the illicit drugs. The Court observed:

It is clear that the burden of proof on an Accused when the presumption under section 32 of the Illicit Drugs Control becomes operative is a legal burden in terms of section 60I of the Crimes Act due to the specific words ‘until the contrary is proved’ found in section 32. The word ‘unless’ in section 60I of the Crimes Act and the word ‘until’ in section 32 of the Illicit Drugs Control 2004 have the same meaning here. Legal burden means the burden of proving the existence of the matter (vide section 57 (3) of the Crimes Act) and the legal burden must be discharged on a balance of probabilities (vide section 61 of the Crimes Act). That effectively requires the Accused to establish, on the balance of probabilities that he himself was not in possession of the illicit drug either alone or jointly with some other person. That is the inevitable corollary, it seems to me, of the way in which the final part of s 32 is expressed.

27. On appeal to the Supreme Court, the counsel for the 2^nd appellant contended that if the burden were a legal one, the question would then arise whether Section 32 offends the presumption of innocence guaranteed by Section 14(2)(a) of the Constitution. However, the Supreme Court refrained from deciding this issue because the trial Judge had given a direction favourable to the defence that the burden on the Defence was evidential^[21].
28. On re-trial, in State v Abourizk^[22], the High Court, having interpreted the presumption of innocence guaranteed by Section 14(2)(a) and the interpretation sections of the Constitution, held that Section 32 of the IDCA imposes only an evidential burden on the Defence and that once that burden has been discharged, the overall burden of proof is on the Prosecution to prove beyond reasonable doubt that the accused was aware what was in his possession was an illicit drug^[23]. The Court of Appeal in Kritesh Kumar v State^[24] approved the interpretation of the High Court and held that the burden on the defence is one of evidential and once that burden has been discharged, the overall burden is on the prosecution to prove beyond reasonable doubt that the accused knew what was in his custody or control was an illicit drug. Therefore, this issue is deemed to have been settled at the Court of Appeal level.

Evidential Burden

29. Section 59(7) of the Crimes Act defines the term ‘evidential burden’. Accordingly, the evidential burden related to a matter refers to the obligation of presenting or pointing to evidence that indicates a reasonable possibility that the matter either exists or does not exist. The accused, charged with possession of illicit drugs, only needs to highlight the evidence that raises the issue of lack of knowledge, after which the burden shifts to the prosecution to prove knowledge beyond a reasonable doubt^[25]. The issue of lack of knowledge can be raised even without presenting evidence for the defence^[26], such as by introducing the issue during cross-examination or referencing evidence in the prosecution’s case (for example, a caution statement).
30. In R v DPP; Ex parte Kebilene^[27], the House of Lords described what it means for the accused to bear either the legal or evidential burden of proof on an issue:

A ‘persuasive’ [legal] burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to the accused. An ‘evidential’ burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt.

Part III

Accomplice Evidence

31. I would put the alleged accomplices (particeps criminis) who provided evidence in these proceedings into three categories. The State witnesses who were granted immunity fall under the first category. LV (PW4), NM (PW10), IR (PW11), MY (PW12), KM (PW13) and NR (PW18) would be included in this category. The second category comprises Cathy Tuirabe (PW16) and Sakiusa Tuva (PW17), who volunteered to be State witnesses after they were convicted. The third category includes the accused persons who gave evidence in their defence against other accused persons. David Heritage, Louie Logaivau, Ratu Aporosa Davelevu and Jale Aukerea all testified against Justin Ho either attempting to minimize their participation or promote their defence. Each of these witnesses came into contact with the Methamphetamine haul at some stage after it was offloaded at Fantasy Island on the 23 December 2023.
    
32. The law on who an accomplice is and how their evidence should be dealt with is well settled in Fiji. The Fiji Court of Appeal comprehensively set out the law on accomplices in Epeli Saukuru v State^[28] as follows:
    

[9] In Fiji, the treatment of co-accused and accomplice testimony follows principles similar to those found in other common law jurisdictions such as English common law principles, with particular emphasis on cautionary measures when relying on such testimony. Co-accused in a criminal trial may also be treated as accomplices if they testify against their co-accused. In such cases, the courts approach their testimony with caution, acknowledging their potential self-interest in shifting blame or obtaining leniency. In criminal trials in Fiji, the judge is required to give judicial warnings when a co-accused testifies as an accomplice. The judge typically advises the assessors to scrutinize the evidence carefully and be cautious when relying solely on accomplice testimony, particularly where the accomplice may have a vested interest in the trial’s outcome. The judge will also remind the assessors that accomplice testimony should be approached with caution due to the possibility that the accomplice might be testifying to reduce their own punishment.

[10] It has been held in Fiji that the law requires a warning to be given about the danger of convicting upon the evidence of an accomplice, unless that evidence is corroborated. Although the common law rule about accomplice warnings is a rule of law, and in the ordinary case the requirement for a warning does not depend upon a request being made by trial counsel, the rule is not so mechanical as to call for a warning in every case in which an accomplice gives any evidence which may be relied upon to establish the prosecution case. The application of the rule must be related to its purpose and will require a consideration of the issues as they have emerged from the way in which the case has been conducted. Needless to say, independent evidence that supports the accomplice’s account increases the likelihood that the testimony will be considered reliable by the court. The onus remains on the court to guide the assessors properly, ensuring they understand the risks of relying solely on the testimony of a co-accused or accomplice.

33. In Singh v State^[29] the Court of Appeal further discussed the law relating to accomplice evidence:
    

[21] Fiji has followed the common law rule of practice, which had crystallized into a rule of law, and adopted by the UK courts for many years that it was obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person when that person is an alleged accomplice of the accused.

[22] It is of interest however to take note of the development of the law in regard to accomplice evidence in the UK, Canada and Seychelles. In the UK, the requirement that it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of an alleged accomplice has now been abrogated by section 32 of the Criminal Justice and Public Order Act of 1994.

[23] In the Canadian Supreme Court case of Vetrovec –v- The Queen /1982) 1 SCR 811, it was said:

“None of the arguments put forward to look for corroboration of accomplice evidence can justify an invariable rule regarding all accomplices. All that can be said is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witnesses. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy. To construct a universal rule singling out accomplices, then, is to fasten upon this branch of law of evidence a blind and empty formalism. Rather than attempt to pigeon-hole a witness into a category and then recite a ritualistic incantation, the Trial Judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an ‘accomplice’ no warning is necessary.”

[24] The Court of Appeal of Seychelles said in the cases of Jean Francois Adrienne & another –v- The Republic CR App SCA 25 & 26/2015 and the case of Dominique Dugasse & others –v- The Republic /SCA 25, 26 & 30 of 2010]: that it is not obligatory on the courts to give a corroboration warning in cases involving accomplice evidence and that it should be left at the discretion of judges to look for corroboration when there is an evidential basis for it.

[25] Reference was made to such an evidential basis by Lord Taylor C.J., giving the judgment of the court in Makanjuola, 1995 1 WLR 1348 and R-v- Easton 1995 2 Cr. App. R. 469 CA when he said:

“Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate, and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence.

In Singh -v- The State^[30] the Supreme Court at paragraph 31 stated:

"A further warning was required in this case due to the fact that Narayan was given immunity from prosecution. The reason that such a warning is required is that a person seeking immunity from prosecution may be tempted to implicate another person falsely in order to achieve his objective."

34. There is no prohibition against one accused giving evidence against another at a trial. This can always happen when conflicting (cut-through) defences are taken up against one another. What is generally barred is to use what one accused had stated in a cautioned statement against another accused. This rule was explained in Baleilevuka v State^[31] where the Court of Appeal held as follows:
    

‘[37] .....It is trite law that a reference made in a caution statement by one accused cannot be made use of against another accused. It is also trite law that if an accused while testifying on oath at the trial implicates another accused that will be evidence against the other accused. It may be in the form of an admission that he committed the crime along with the other accused or it may be in the form of a ‘cut- throat defence’ (R V Turner & Others [1979]70 Cr App R 256; R V Varley [1982] Cr App R 242; Bannon V Queen [1995] HCA 27; [1995] 185 CLR 1) where he implicates the other accused in the crime exonerating himself. It is my view that where an accused corroborates the evidence of another accused or gives evidence favourable to any of the other accused; that is also evidence that must be considered by the Assessors and the trial Judge in coming to a finding against the accused”

35. However, this rule is not stubborn. The five-beach Privy Council decision in Lobban v R^[32] exemplified an exception to the rule that a reference made in a caution statement by one accused cannot be made use of against another accused. The Privy Council held:
    

A judge in a criminal trial had no discretion to exclude the exculpatory part of a mixed statement containing admissions as well as an exculpatory explanation on which a defendant wished to rely, notwithstanding that the exculpatory material was prejudicial to a co-defendant. The discretionary power to exclude relevant evidence because its prejudicial effect outweighed its probative value was confined only to evidence on which the prosecution proposed to rely, since the purpose of the discretion was to ensure a fair trial of the defendant or, in a joint trial, of each defendant without seeking to differentiate between the quality of justice afforded to each defendant. On the other hand, a defendant’s right to deploy relevant evidence as part of his case asserting his innocence was absolute and not subject to any discretionary control by the judge, notwithstanding a conflict of interest with a co-defendant......

36. In the present case, Lobban is relevant to the cautioned statement of David, which implicated Justin Ho while raising his defence of duress. However, I would consider David’s statement to ascertain the truth in a context where David gave evidence under oath.
    
37. In evaluating the evidence of NR and Norman Fisher, I have accepted one part of their evidence and rejected the other part. I have given reasons for doing so. In Chandra v State [2015] FJSC 32; CAV21.2015 (10 December 2015) Dep J observed as follows:

In the past, the courts applied the maxim 'Falses in Uno Falses in Omnibus' - meaning "He who speaks falsely in one point will speak falsely upon all" - to a witness who gives false evidence. The present trend is instead of rejecting the totality of evidence, to act on that part of evidence which is true and reliable. This approach is known as divisibility of credibility. The learned judge should have impressed upon the assessors that due to serious inconsistencies and infirmities in David's testimony he is an unreliable witness and not worthy of credit and it is unsafe to act on his evidence. However the assessors should be informed that they are free to act on his evidence provided he had given a satisfactory explanation or can act on parts of evidence corroborated by independent evidence.

Part IV

Law on Defence of Duress/ Burden of Proof

38. The common law defence of duress is incorporated into Section 40 of the Crimes Act 2009, which reads as follows:
    

“(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she reasonably believes that –

(a) a threat to cause death or serious harm has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(c) the conduct is a reasonable response to the threat.

(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

39. The Court of Appeal in Lata v State^[33] extensively discussed the defence of duress as follows:

[22] Acts done by reason of duress are voluntary, conscious and willed. It has been recognized by the Court of Appeal and the House of Lords in the cases of Fisher [2004] EWCA Crim 1190 and Hasan [2005] UK HL that the defence of Duress is not a denial of mens rea, but a true defence operating despite the existence of the actus reus and mens rea of the offence.

[23] All three elements set out in section 40(2) of the Crimes Decree must be satisfied before an accused could avail himself of the defence of duress, in view of the conjunctive use of the word ‘and’ at the end of sub-paragraphs (a) and (b). As it has been held in the cases of Hasan [2005] UKHL 22; Gill [1963] 2 AER 688; Giaquento [2001] EWCA Crim. 2696: Bianco [2001] EWCA Crim. 2156 and Bloomfield [2007] EWCA Crim. 1873 the onus of disproving duress is on the State. It is stated at Blackstone’s Criminal Practice 2011 F3.31 that “If the accused places before the court such material as makes duress a live issue, fit and proper to be left to the jury, it is for the Crown to destroy that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.” (Emphasis added by me). There is no need in my view to address the Assessors on a fairy tale of an alleged duress.

[24] There is both a subjective and an objective element to the defence of duress. The objective element was highlighted in Howe [1987] 1 AER 777 where the House of Lords held that the defence would fail if a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats as did the defendant. In other words the Appellant’s response must be one which might have been expected of a sober person of reasonable firmness. If the defence of duress were to succeed the evidence should show that the Appellant’s will was ‘overborne’ with the threat, which means so far as the instant case is concerned that the Appellant would not have continued to possess the drugs given to her in April 2010 up to the 13th of June 2010 ‘but for’ the threat. In Hudson [1971] EWCA Crim 2; [1971] 2 QB 202 it was stated: “It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a ‘present’ threat in the sense that it is effective to neutralise the will of the accused at that time.” The wording in section 40 indicates that an accused who seeks to rely on the defence of duress should have reasonably believed that the threat is one which will be carried out immediately or before the accused can obtain some form of protection. A similar view has been expressed in the UK case of Hurst [1995] 1 Cr App R 82. In Hassan [2005] UKHL 22; [2005] 2 AC 467, Lord Bingham, thought that it should “be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged. The question whether an accused had a reasonable opportunity to take evasive action ought not to be subsumed within the question whether the accused had a reasonable belief in the existence of the threat and whether a reasonable person in the circumstances of the accused would have responded as the accused did. [Emphasis added]

Part V

Summary of Evidence

Evidence for Prosecution

PW1 - David Andrew Wright (David Wright)

40. David Wright runs a barge business in Vuda. He owns the barge called ‘Mobby II’, the skipper of which was Tui. In late December 2023, David Heritage (David) wanted to charter his barge. The stated purpose was to deliver some food and fuel to a yacht in the Yasawas. He agreed and gave the barge with his crew, headed by Tui. David paid $3,000 in cash and requested that the food and fuel be delivered to the yacht before sunrise. He arranged his crew to leave before midnight on 21 December 2023. They embarked on the journey and returned to Vuda Marina (on 22^nd) with the same load of diesel and bags, for he became a little suspicious about. David explained that he had been given the wrong coordinates and wanted his barge to be chartered again, for which he was paid an additional $3,000.
    
41. After the barge left Vuda on the second charter, he was worried because it could not be contacted for some time. Eventually, he received a call from David seeking permission to stay the night at Malolo Island and return to Vuda the next morning. Upon his return to Vuda, David contacted him again to organise another charter, saying they needed to take some rubbish off the same yacht. He arranged the third charter upon the transfer of $3,000 to his account. David Wright recognised his barge and David on the CCTV footage when it was played in Court.
    

PW2 - Ratu Isoa Dina (Tui Dina)

42. Dina was the skipper of ‘Mobby-II’. On 20 December 2023, David Wright assigned him a job to take David (2^nd Accused), his three boys, a load of diesel and some white bags to the sea. They left Vuda after midnight (21 December 2023) and reached the Yaqeta seas at about 6 am. David was looking for the yacht for which he had coordinates. He finally located the yacht about 80 miles from where they were. David wanted to pursue the yacht, but he declined because the benzine was not enough to go that far. Then David told him to return to Vuda. At Vuda, the barge was refilled.
    
43. After midday, David called and asked him to take them to the sea again to catch the yacht. They left Vuda at around 2 pm with David and one of his boys. They were looking for the yacht till late evening, but it could not be located. David asked him to return to Vuda Marina. Since it was nighttime, they anchored at Musket Cove Island and slept there. On 22 December 2023, they returned to Vuda at around 8 am and refilled the barge.
    
44. After midday, he received another call from David. This time, David wanted him to go with one of his boys and a Russian man. They left Vuda Marina on 23 December 2023, around 1 pm. The Russian man was communicating with somebody using his satellite phone and was able to locate the yacht at about 6 pm. On the yacht were two white men and a man who looked Mexican. They moved closer, and the barge was tied to the yacht. The Russian man jumped onto the yacht. They started offloading the sealed containers from the yacht to the Mobby-II. The entire unloading process took nearly two hours.
    
45. Dina recognised the containers when the photographsin the booklet were shown. He said he was scared during the offloading process because he suspected the containers contained drugs. He did not count containers, but the barge was full. After the offloading was over, they headed to Fantasy Island, on David’s instructions. David was waiting at the jetty. When they anchored, David went to drop off the Russian man at Vuda Marina. David returned with a truck onto which the containers were loaded. Two trips were made to clear the entire consignment. Upon completion of the second trip, David gave him $2,000 in addition to his captain's salary. David told him to relax because he had connections with the police, the army and the navy.
    
46. Under cross-examination by Mr. Anthony, Dina said that the Russian man looked normal, and his presence did not intimidate him. Under cross-examination by Ms. Volau, Dina agreed that it was only on the second trip that David had given him the coordinates when they reached Yaqeta. No one threatened him, but he got scared upon seeing the unloading.

PW3 - Apenai Turaganikeli Rauma (Apenai)

47. Apenai’s sister is married to David (2^nd Accused). He used to live in David’s house at Sabeto and was employed at David Marine Repairs, owned by David. On 20 December 2023, David went to town with him to buy some empty gallons and filled benzene. The gallons and the recycled white bags were loaded onto the barge berthed at Vuda Marina. When the captain (Tui) and his crew arrived, all six of them left Vuda in the barge and entered Yasawa waters around 6 am. They returned to Vuda Marina since they could not find the yacht they were looking for. They set off again towards Malolo waters. Still, they could not find the yacht. David decided to sleep at Musket Cove Resort. They all returned to Vuda early in the morning and went home while the gallons of diesel were still loaded on the barge.
    
48. At around 10 am, he and David went to David’s workshop at Denarau. Justin Ho (1^st Accused) arrived in a white rental car with a European man. They were in a meeting for about two hours. When they left, David headed to Sabeto. On the way, David discussed a job which David wanted him to keep secret. They filled the gallons with fuel and went to Vuda Marina. Captain Tui and Kai were waiting there with the European man he had seen with Justin Ho (1^st Accused) the previous day at David Marine Repairs. David talked with the European man and by midday, the barge left Vuda Marina again.
    
49. This time, David did not join. Only the European man, Captain Tui, and Kai were on the barge with him. The European man, who spoke broken English, was busy on his satellite phone talking to someone. The barge headed towards the Yasawa waters and crossed the border. About 6 pm, the yacht with three white men approached the barge. The man on the barge jumped onto the yacht and began offloading sealed containers onto the barge, for which he also assisted. Captain Tui told him that those containers contained methamphetamine. At one stage, Tui asked that the offloading be stopped because the barge was getting overloaded. The European man insisted that all the containers be transferred onto the barge.
    
50. When all the sealed containers were loaded onto the barge, it returned and, on David’s instructions, landed at Fantasy Jetty around 6 am. David was already waiting at the jetty to receive them. Upon their arrival, David transported the European man in his vehicle to Vuda Marina, while the rest of the team offloaded the containers. The containers were then loaded onto a large white hiab truck driven by an Indian man. David guided the truck, which made two trips to David Marine Repair's office in Denarau, where the containers were unloaded at the car park.
    
51. While the second load was being offloaded, Justin Ho and one of his associates arrived at the car park. David had a conversation with Justin Ho, during which David told him to wait for Justin Ho's vehicle to pick up some of those containers. He then saw a white Voxy being driven into the car park by an iTaukei man, accompanied by another iTaukei passenger. He identified the 3^rd Accused, Louie Frank Logaivau (Louie), as the person who drove the Voxy that day. The two iTaukei men who arrived in the Voxy began loading the containers into their van to be taken inside the David Marine Repairs office. Louie then locked the office. When he returned on 27 December, he observed no more containers in the David Marine Repairs office.
    
52. Under cross-examination by Mr Heritage, Apenai agreed that he always acted under the instructions of David. He admitted that in December 2023, he painted the warehouse beside Subzero Car Wash on the instructions of David.
    
53. Under cross-examination by Ms Volau, Apenai agreed that he had never seen the European man at the David Marine Repairs before. He admitted that, during the conversation, David was reluctant to make reservations for the 3^rd trip because it was already booked. David made arrangements for the third trip after a conversation he had with the European man and Justin Ho. He agreed that the Russian man would give the coordinates to Captain Tui. Apenai admitted that the Russian man was talking to the other three men on the Yacht in a commanding and authoritative manner, as if he were the boss.
    
54. Under re-examination, Apenai agreed that when the containers were being unloaded, Justin Ho walked down to David Marine Repairs from his workshop, which is adjacent to the Subzero Car Wash owned by Justin Ho.
    

PW4 - LV

55. LV schooled up to Year 13 and then attended FNU. From October 2022 to December 2023, he worked part-time at Subzero Car Wash on Industrial Road, Denarau, owned by Justin Ho. He earned $140 weekly. Louie also worked with him. The warehouse was connected to the car wash. Inside the warehouse, there were three apartments and the first one was rented by Justin Ho. The True Cuts barbershop, owned by Justin Ho, was also located within the same warehouse.
    
56. In 2023, before Christmas, Louie told him that he should stop working for Subzero car wash because all the water blasters had been damaged. On the same day, at about 1 pm, Louie accompanied him to the Bula Bus yard just beside the warehouse. They went in a white Voxy driven by Louie to David Marine Repairs, owned by David Heritage.
    
57. At the back of David Marine Repairs, he saw some big containers wrapped in blue, red and black tapes. Louie told him to tear the tapes and separate the containers so that they could be taken to the office, which Louie had opened. They moved seven large containers to the office till 10 pm.
    
58. There was no more space in the office, so nine containers were left outside. He saw white crystals in one of them when its lid was broken. He was frightened when he saw the contents because it was the first time he had seen white crystals, which Louie described as meth. Louie then locked the office, and they went to Justin Ho’s warehouse. Afterwards, Louie and Justin Ho left the warehouse.
    
59. When he woke up the next morning (Sunday, 24 December 2023), Justin Ho and Louie had returned. Justin Ho instructed Louie to take the stock. Around 10 am, they visited the David Marine Repairs office, where they conducted a stock take. He was counting the containers while Louie wrote in a book. A hired truck arrived at David Marine Repairs at about 6.30 pm. They loaded the nine bags left outside onto the truck. The truck was driven to the car wash warehouse by an Indian man. They unloaded the nine bags and stored them in the 2^nd warehouse next to Justin Ho’s. They then went to Justin Ho’s flat and slept. The next morning, Louie made ten trips to David Marine Repairs in a white Voxy and brought the seven containers to the 2^nd warehouse. Only he, Louie and Justin Ho knew that these containers contained meth. When the photographic booklet (MFI 2) was shown, LV pointed out the Subzero car wash, the warehouse, True Cuts barber shop and the truck.
    
60. Three days later (28 December 2023), he was at Justin Ho’s warehouse with Louie. Around 1 pm, Justin Ho drove a three-ton truck covered with a blue tarpaulin and parked it at the 2^nd warehouse. He, Louie, and Justin Ho loaded all the containers into the truck. Ratu Aporosa Davelevu (Aporosa) transferred the containers to Motorex. It was the first time he had seen Aporosa. He saw Aporosa again when the truck arrived at Motorex. He identified the 4^th Accused in Court as Aporosa.
    
61. He and Louie left in another vehicle and guided Aporosa to arrive at Motorex. After the truck was parked at Motorex. They went back to the Denarau warehouse where Justin Ho was. He pointed out Aporosa, Louie and him in the video footage (MFI 3) shown in Court. The next morning, they went back to Motorex with NR as they were supposed to unload the truck. They came back to Justin Ho’s warehouse without unloading the containers. Louie and Justin Ho paid him $1,500 for the work he had done.
    
62. Under cross-examination by Mr Heritage, LV agreed that certain Fijian men with Australian accent and European men who spoke broken English would come to the warehouse asking to meet Justin Ho, but they were turned away as per Justin Ho’s instructions saying that Justin Ho was not in. Justin Ho was avoiding these men.
    
63. Under cross-examination by Mr. Anthony, LV agreed that he and Louie worked for Subzero Car Wash under Justin Ho. It was before December 2023 that the European visitors came to see Justin Ho. He was not aware that in December 2023, a group of boys had come to threaten Justin Ho's staff. He was not under pressure when loading and unloading. Louie appeared normal and did not seem scared. Louie was receiving instructions from Justin Ho, who was the boss. He denied that any other people were involved in transferring the consignment. He was shocked and scared when he saw the white substance, and when Louie confirmed it was methamphetamine. He agreed that he hadn’t informed the police about the stock-taking that happened on 24 December 2023. He did not receive any threats from anyone during December 2023.
    
64. Under cross-examination by Ms Volau, LV stated that Justin Ho had given the key to David's office to Louie, not David. Louie and Justin Ho used to open the 2^nd warehouse. Apart from the car wash and the barber shop, Justin Ho owned a bike and buggy business. Pacific Gym at Denarau is owned by Sam, Justin Ho's friend. Justin Ho always paid hard cash to the staff and gave rewards to those who obeyed him. He agreed that Justin Ho is a very controlling person.
    
65. Under cross-examination by Ms. Cava, LV agreed that the truck was covered with a blue tarpaulin. He agreed that from where he was standing, he was not able to see who was in the front of the truck. At Denarau, he saw Aporosa coming from the barbershop. He agreed that Aporosa did not participate in loading the containers. He was only called when the truck was fully loaded and sealed properly.
    

PW 5 - Tasvindar Dhillon (Tasvindar)

66. The witness statement of Tasvindar was tendered as evidence by consent (PE1). Tasvindar is the manager for Bula Buses and the owner of the building David was renting. David took the first room on rent in 2022 to run his David Marine Repairs. On 16 December 2023, he took the second room next to the first on rent, claiming he was offered a job at Castaway Resort. David paid $2760 for both rooms. David rarely used the front door; his clients entered through the back door. To her surprise, within two months, David took another teNM in a building opposite Fresh Choice Supermarket, stating it was for storing his Jet Skis.
    

PW 6 - Parmesh Prasad

67. The witness statement of Parmesh Prasad was tendered as evidence by consent (PE2). Prasad was the driver of the hiab truck that moved the drugs from Fantasy Island to David Marine Repairs and moved it from David Marine Repairs to the warehouse at Justin Ho’s.
    

PW7 Vikash Chand (Chand)

68. The witness statement of Chand was tendered in evidence by consent (PE3), and Chand was subjected to cross-examination by the Defence. Under cross-examination by Mr. Heritage, Chand said that, on 28 December 2023, he went to True Mart at Denarau Back Road as Mohinesh wanted his truck (registration N264) to be hired on a self-driven basis. Mohinesh came in a Toyota Voxy with Isaac. Isaac told him that his boss needed to hire his truck to move some of his household items. Isaac’s boss, a Fijian man with an Australian accent, came and parked beside the Voxy. He gave the keys to Isaac’s boss.
    

PW 8 - Sonal Saneel Prakash

69. Sonal Prakash’s statement (PE4) was tendered by agreement.
    

PW 9 D/Sgt Netava Yalayala

70. In January 2024, Sgt Yalayala was stationed at Lautoka Police Station when the Nadi drug bust was being investigated. On 18 January 2024, he was tasked to analyse the CCTV footage obtained from Motorex, Nadi Back Road. He viewed the video footage that was played in Court and confirmed it to be the one he had analysed at the Nadi crime office. He pointed out the white truck LR-5386 with a blue tarpaulin, driven into the Motorex premises. He said he was able to identify Ratu Aporosa Davelevu in the CCTV footage through his physical appearance, his build and how he walks (gait). He had known Aporosa since 2019. He identified the 4^th Accused Aporosa in Court. He also arrested Ratu Aporosa Davelevu on 23 January 2024 at his residence in Saweni.
    
71. Under cross-examination by Ms. Cava, Sgt Yalayala agreed that Aporosa was walking out from the service station straight after the vehicle was parked at the back of Motorex without raising any suspicion. He agreed that he could not identify whether Aporosa was the driver of the truck. Under cross-examination by Mr.Heritage, Sgt Yalayala agreed that Aporosa had an Australian accent when he talks in English.
    

PW10 - NM

72. NM knew Sakiusa Tuva (Sakiusa) since 2019. They got to know each other on Facebook and used to meet after they first met in December 2023. She met Sakiusa in January 2024 at the Transit Hotel, where she spent the night and later at his house in Votualevu. Whilst at Votualevu, Jale and his wife came to pick them up from Sakiusa’s residence. Sakiusa introduced Jale to her as his cousin and his ex-boss at Kava Kings. Jale dropped them off after being driven in his car for about 7 minutes. She identified Jale in Court.
    
73. Sakiusa took her to the tin house at Voivoi Settlement in Legalega, which she pointed out in the photographgraphic booklet. She had been to this house 3 or 4 times with Sakiusa. The house was messy because of the wrapped containers stored there. In that tin house, she met Osea and Cathy, who were occupying it. Sakiusa introduced them to her. They stayed there for about an hour or two. NM identified Osea Levula (7^th Accused) in Court. She saw Cathy and Osea packing the containers. Osea was helping Sakiusa wrap the containers. When they came down to Lautoka, they brought white stickers, which Osea and Sakiusa applied to the containers together. At first, she did not know what was inside those containers. Sakiusa later told her it was meth. On her last visit, Osea and Sakiusa spent one or two hours wrapping the containers. She and Sakiusa went to the Transit Hotel because she was feeling sick. Sakiusa dropped her at the hotel and returned late at night.
    
74. Sakiusa returned to pick her up, and they then went to the house in Maqalevu where he told her they would be staying as tenants. KM, Sakiusa's friend, collected them from the hotel and dropped them off at the Maqalevu house. After KM left, Sakiusa received an early morning call from Osea, informing him that Legalega house had been raided and they needed to leave the Maqalevu residence. They left Maqalevu and headed to Denarau. Sakiusa explained that he had to drop off something and collect some money. As they stopped to buy breakfast at Jet Point Hot Bread Kitchen, police officers arrived to arrest Sakiusa. She then returned home to Tavua. A week later, she was contacted by the police.
    
75. Under cross-examination by Mr Naivalu, NM admitted that she was originally charged and later given immunity by the State. The immunity is conditioned upon her giving evidence that she will assist the State. She met Osea on all her visits to Legalega and went to his house in Votualevu. He agreed that Legalega house was still under construction. She agreed that Sakiusa told Osea to fix the house using the materials that were all over the house. She told the police that Osea was assisting Sakiusa in packing the containers inside the house, but agreed that nothing to that effect is reflected in her statement. She denied tasting the meth at Sakiusa’s house and going high like stoned. She denied having smoked meth until she was released from remand.
    
76. Under cross-examination by Mr Heritage, NM agreed that Jale had an Australian accent. She had never met Justin Ho either at Legalega or Maqalevu. She did not see any boat stuff outside the car park when she and Sakiusa went to Denarau to collect the money. She felt scared when she learned that the containers contained methamphetamine. Under cross-examination by Ms Volau, NM agreed that Sakiusa had received a significant amount of hard cash when they went to Denarau.
    

PW11 - IR

77. IR was initially charged in these proceedings, and the State later granted him immunity. Before immunity was granted, he gave a statement to the police. He first met Sakiusa at FNU in 2015/16 and maintained their friendship ever since.
    
78. In 2023, he owned a small, uncompleted tin house in Voivoi, Legalega. On 26 December 2023, he came to Nadi from Lau to report to work on the 27^th at Kokomo Aviation. He knocked off and went home around 7 pm. At midnight, he was surprised to have a visit from Sakiusa. Sakiusa wanted to rent his house in Legalega. He agreed to give the house on the promise that Sakiusa would use the rent money to finish his uncompleted house, where Sakiusa had already done some carpentry work.
    
79. On 29 December 2023, he was at a drinking party at MY’s house in Namaka. Sakiusa came in a taxi to meet MY at about 2 am. Sakiusa asked for help in unloading something at his house in Legalega. They went straight to Legalega, where he saw a white carrier with a blue tarpaulin parked at the driveway to his house. The cargo had already been offloaded from the carrier, and everything was on the ground. As soon as they arrived at Legalega, they started moving the containers inside the house on Sakiusa’s instructions. Viliame (Bill) was already moving the containers when they arrived. He had met Viliame every weekend at Kava Kings, where Viliame was employed. He had long hair with dreadlocks. He recognised Viliame (9^th Accused) sitting in the dock.
    
80. When the photographic booklet was shown, IR pointed out his Legalega house, the carrier and the containers they had moved in. When he was outside the house, he did not know what was in those containers. Sakiusa told them they had tile glue. He got to know the true contents when one of the containers cracked and the white crystals fell on the floor inside the house. He understood it was methamphetamine. When he asked Sakiusa, he confirmed it was meth. They could not move all the containers by daylight because the house was full. Some of them were still lying outside, covered with a tarpaulin. MY had left earlier just before daylight. Sakiusa left to have breakfast. He also left while only Viliame remained in the house.
    
81. Under cross-examination by Mr Heritage, IR agreed that he frequently met Sakiusa and Viliame, who both worked at Kava Kings and its owner, Jale Aukerea. IR’s son informed him of the raid at Legalega on 14 January. At the police station, he saw a search warrant dated 13 January 2024 issued for his house but addressed to Justin Ho. Sakiusa never mentioned the name of Justin Ho.
    
82. Under cross Examination by Ms Reddy, IR agreed that Sakiusa had informed him and Viliame that those containers had glue hardeners that could easily be broken if not shifted inside the house. It did not seem suspicious of anything illegal.
    

PW 12 - MY

83. MY lives in Transville in Namaka. On 29 December 2023, he received a call from Sakiusa, his schoolmate at FNU, around 10 pm to seek assistance in unloading some items. He was having drinks with IR and others. Around 2 am (30 December 2023), Sakiusa came home in a car and was insistent on his request to unload the items. He and IR agreed to help. They went to Voivoi, Legalega, where they saw a truck and some containers beside the truck. Viliame, who used to attend the same church (CMF) in Suva, was already at the house. MY recognised Viliame Colowaliku (9^th Accused) in Court. Sakiusa told them to take the containers inside the house before sunrise. When they started lifting the containers, Sakiusa told him it was drugs. They took 1-2 hours to move the containers into the house. He pointed out the white truck with a blue tarpaulin, the house and the containers in the photographic booklet.
    
84. Under cross-examination by Mr. Heritage, MY agreed that the containers had not been photographed when they were in the house at Legalega and that the containers in the photographs looked similar to those they unloaded. Under cross-examination by Ms. Reddy, MY denied having heard Sakiusa say that the containers contained building material. When Sakiusa had told him that the containers had meth, IR and Viliame were not present.
    

PW13 - KM

85. KM is Sakiusa’s friend from the time they studied together at the FNU. In December 2023, KM met Sakiusa, who offered his recently bought Light Ace van to transport his construction stuff because Sakiusa did not drive manual vehicles. On a Friday, he went to Sakiusa’s Votualevu house to pick up his vehicle. NM and Sakiusa asked them to be dropped off at the Transit Hotel, which he did. He took the Light-Ace home in Saweni. The next afternoon, he received a call from Sakiusa, who asked if he could be picked up from the Transit Hotel as he was moving to a new residence at Maqalevu. When he picked Sakiusa from the Transit Hotel, he wanted his stuff in Legalega to be transported to Maqalevu in the Light-Ace van.
    
86. When they arrived at Legalega he saw Cathy and Osea there. Osea was on a bicycle, still on his way back from the shop. Cathy was inside the house. He knew Osea through Sakiusa when Osea was at FNU and drank together at nightclubs 3-4 times. KM identified Osea in Court. Saki asked Cathy to paste sticky tape on the windows of the Light-Ace, except for the driver and passenger, so that the packages could not be seen. Then Sakiusa and Cathy started loading the containers, which had tile adhesive stickers pasted on them, into the van. Osea was standing beside the vehicle. Osea loaded only a few parcels which they had forgotten.
    
87. He did not know what was in the wrapped packages. Upon being asked, Sakiusa said not to ask a lot of questions if he wanted to keep the vehicle. They went directly to Maqalevu. On the way, Sakiusa was giving directions while messaging someone on the phone. Sakiusa told him to follow the hybrid Prius from Narewa. It was already night when they arrived at the big house at Maqalevu. Sakiusa and the person who came in the Prius went on to the porch. He had seen this person, Jale, twice before at the Kava Kings kava bar in Votualevu. He was the boss of Kava Kings. He pointed out the house in Maqalevu in the photographic booklet and identified Jale Aukerea in Court. Jale passed the house key to Sakiusa, who opened the door. They started offloading the packages.
    
88. Sakiusa asked him to go to Legalega again and bring some more packages. He went to the house at Legalega where he and Cathy started loading the packages that were outside the house into the van. Osea came late and helped them to load the packages. He wouldn’t know whether some more packages were left inside the house because he did not go inside the house. He left Legalega and arrived at Maqalevu, where they offloaded the 2^nd load. While offloading, he again asked Sakiusa what was inside the packages. This time, Sakiusa said it was meth. When he was shown the photographic booklet, he pointed out the packages they handled. He was arrested and investigated by the police.
    
89. Under cross-examination by Mr Wainiqolo, KM agreed that Sakiusa was employed by Jale. Under cross-examination by Mr Naivalu, he agreed that Osea picked the container that was left behind to be loaded into the van. This container was wrapped and had a tile adhesive sticker. He agreed that photograph 1, which he identified in Court, does not depict the packages sitting in the house at Legalega. He agreed that Cathy and Sakiusa did everything secretly. Under re-examination, KM confirmed that he had seen Osea at Legalega on both trips.
    

PW14 - Vipul Romik Sharma (Vipul)

90. Vipul is the Manager at Kevin Realtors PTE Limited, a Real Estate Agency. On 12 January 2024 (Saturday) he was informed that a client named Anal was coming to view a property at Maqalevu for his workers who are coming from overseas. They wanted a well–secured house on its own. He went to Maqalevu and showed the house to Anal and his business partner Jale. He pointed out the house in the photographgraph booklet.
    
91. He had never seen Anal or Jale before. They viewed the house with Sonam, the caretaker. After viewing the house inside, Jale was satisfied with the house. Jale was in a hurry to move in on the same day, even before the paperwork was done. The owner agreed on the condition that she would be permitted to move her stuff later. Jale paid $ 2,500 in cash at the site, and the keys were given to Jale.
    
92. On Monday, he talked to Anal about signing the teNM agreement. Anal said Jale was already occupying the house, and he got to deal with Jale. Jale over the phone permitted them to enter the house and take the landlady’s stuff using the spare key with the strict advice not to enter the rooms or touch anything. When they went to the house with Sonam, they saw boxes wrapped and labelled ‘Kadavu Kava’ being stored there. He identified Jale in the courtroom.

PW15 - Sonam Jyotika Raj

93. Vipul informed Sonam that a tenant would come to see the house at Maqalevu. On Saturday, one Indian and Fijian named Jale came to view the house. Jale negotiated the rent and agreed to a monthly rent at $ 2,500, the bond of which was paid in cash. Jale wanted the house on the same day. They agreed as Jale allowed her sister’s stuff to be moved out later. She gave the key to Jale.
    
94. On Wednesday, having informed Jale, she and Vipul opened the house with the spare key to take out her sister’s property. When she entered the master bedroom, she saw in the room and the washroom plenty of cartons with white stickers. Vipul said they would contain grog because Jale had said he had a grog business. She recognised the photographs of the house and the cartons in the photographgraph booklet. On the following Saturday, (20 January 2024), a neighbour informed that the house had been raided by police for drugs.
    

PW16 - Cathy Tuirabe Bainisavu (Cathy)

95. Cathy lives in Votualevu, Low-Cost. In 2023, she was in her village in Raralevu for Christmas. She received a phone call from Sakiusa to be informed that the stuff (methamphetamine) was already in Nadi. She agreed to come after festive season. She arrived in Votualevu on 3 January 2024 and discussed about the drugs. She agreed to stay in the house to guard the things. When she returned home, Osea came to collect the key of Sakiusa’s house at Votualevu. They got to know each other. She gave the key because Osea had called her ‘BroBro’, the code name assigned in the circle of which she, Sakiusa and Osea were members. After doing laundry, she went to Sakiusa's house where she and Osea started wrapping the packages that contained both Kava and Methamphetamine. She pasted labels titled ‘Kadavu Kava’ on packages. They wrapped two balls of ten packets and took them to Transit Hotel where Sakiusa was and returned to Sakiusa’s house. At around 8 pm, Sakiusa came home and informed that his boss was coming. He advised her to keep away from the house. She knew Jale was the boss at Kava Kings where Sakiusa was working.
    
96. The next day she went to the tin house at Legalega which stored methamphetamine consignment where she was supposed to clean and look after the things inside. She also helped sticking the labels on methamphetamine parcels. Osea was cleaning the compound and guarding the house. She was there for three days and so did Osea. She pointed out the photographs in the photographic booklet that depicts the house at Legalega and the containers on which she pasted labels. She recognized Osea in Court. Sakiusa paid $100-$300 a night for her service. When the police came to raid the tin house at Legalega, she was still there. She escaped through the back door and went home when she met Osea.
    
97. Under cross- examination by Mr Wainiqolo, Cathy agreed that there had already been a prior conversations about the drugs. Sakiusa was Jale’s handyman for constructions and they were cousins. She used to see Jale every day when she worked right behind his kava bar.
    
98. Under cross-examination by Mr Naivalu, Cathy agreed that she pleaded guilty to the charge to ask the Court for leniency for a lesser sentence. Her lawyer had explained to her that the minimum sentence is 20 years’ imprisonment. When asked by Court she confirmed that she pleaded guilty because she felt she was guilty. She agreed that at the time the plea was taken, she received no assurance from Court that she would get a lenient sentence.
    
99. Osea was there to clean-up the compoundd. She did not allow Osea to come inside the house. When the photograph No 1 under Namaka division was shown, she was unable to say if those were the containers she had seen at Legalega because there was a lot of containers. When photograph No 57 under Legalega division was shown, she agreed pasting the ‘Universal Tile Adhesive’ stickers on those containers. Only Osea would bring the money paid to her by Sakiusa via M-Paisa. She agreed that Legalega house was undergoing renovation in which Osea was engaged. Osea was never her lover. NM, came to the house at Legalega only once. Under re-examination, Cathy said that Osea was guarding the house and, during the drug transfer process, he was riding a bicycle around the neighborhood.
    

PW17 - Sakiusa Tuva (Sakiusa)

100. Sakiusa said that he pleaded guilty to the charges because he did it. He worships one God, who will give him mercy. Jale is his cousin (father’s brother’s adopted son) and the owner of Kava Kings. Jale approached him in Denarau and employed him as his foreman to do maintenance work at his shop.
     
101. Sakiusa described how he guided the truck containing methamphetamine from Motorex to Legalega in December 2023. He got in Jale’s car at Votualevu junction. As soon as he entered Jale’s car, Jale took his phone and installed a messaging App called Threema for him to receive messages from Jale. When he was dropped off at Motorex, Jale told him to enter the Coffee Hub.
     
102. As soon as he entered the Coffee Hub, he met NR and Norman Fisher. He had known Norman Fisher through Jale and had had dinner together with his family. He had met NR once before at Kava Kings. Norman Fisher gave him $500.00. NR asked him to drive the truck, but he declined because he could not drive manual-gear vehicles. Then NR drove the truck out of Motorex while he drove NR’s car. He guided NR from Motorex to the tin house at Legalega, which IR Roqica had given him to repair.
     
103. Sakiusa recognised the house depicted in photographs Nos. 1 and 2 under Legalega in the photograph booklet. They started offloading the drugs at Legalega. NR was in a hurry to go back. He contacted MY and went to his house. He brought IR and MY to assist him in moving the containers into the house. Then they offloaded the containers and moved them into the house. NR left in the truck and they continued moving the containers into the house. They could not move all the containers into the house before sunrise. He went home to sleep at Votualevu.
     
104. The next morning, he received a message on the App which he believed was from Jale for him to go and check on the Legalega house. When he came to the house at Legalega, Viliame from Raralevu Village was there. On that morning, Viliame had come to do his usual work, to complete the partitioning work of the house which he had brought Viliame for. He recognised Viliame (9^th Accused) in Court. Upon being shown Photographs 1 and 2 under Namaka Division, he recognised the containers of drugs that they had moved into the house in Legalega.
     
105. He had known Cathy since childhood as they grew up together in Low-Cost, Votualevu. He brought her down to Legalega to look after the house when he was away. At one stage, she moved some containers to the Transit Hotel. He brought Osea to clean the compound when he was not there.
     
106. He and KM moved the rest of the containers to Maqalevu in the Light-Ace van, which was purchased through his cousin Jale. Jale had given him $3,000.00 to buy that van for him to move the containers. KM drove the van because he could not drive manually driven vehicles. The drugs were moved as per the instructions received on the App, which Jale had installed on his phone.
     
107. KM made two trips and transported the containers from Legalega to Maqalevu. When they had arrived at Maqalevu on the first trip, Jale was there to give him the key to the house. They moved the containers inside the house and stored them in the toilets in the master-bedroom. When the photograph log under Maqalevu was shown, he recognized the photographs of the house and the containers they had stored in. He also recognized the photographs depicting the silver colour packets containing both grog and meth which he had packed and labelled ‘Kadavu Kava’ in his house at Low-Cost. He did the job for which he was paid according to the instructions he had received on the App. He agreed that the information he provided led to the Maqalevu house being raided by the police.
     
108. Under cross-examination by Mr Heritage, Sakiusa agreed that Norman Fisher is short, bald (headed) and a fair man who has tattoos on his arms. It appeared to him that NR was working for Norman Fisher. It was Jale who had directed him to go and meet Norman Fisher and NR. When the video footage was shown, he recognized the white truck JN264 with a blue tarpaulin. He agreed that he looked for a house at Legalega on Jale’s instructions. He had never met Justin Ho. He agreed that Norman Fisher had come in his vehicle with Isaac when they drove the truck to Legalega. He believes that Isaac took some of the containers that fell.
     
109. Under cross-examination by Mr Wainiqolo, Sakiusa said that Jale had the controlling authority over the Toyota Light-Ace although it was under his name. Jale knew KM through him.
     

110. Under cross-examination by Ms Reddy Sakiusa agreed that Viliame had approached him looking for a job to support his family. Viliame was given some construction work required at Legalega house for which he had agreed to pay. Viliame also cleaned the compound. He agreed calling Viliame on 29 December 2023 for him to come to Legalega. He agreed that Viliame moved the containers inside the house. He agreed that Viliame was not aware of his dealings with the drugs.

111. Under cross-examination by Ms Volau, Sakiusa agreed that seven members were in the group sharing information on the App. He agreed that he refused to give police the password for the App because he did not want to be a snitch and knew the price that comes with leaking the information, the price of which would be death.
     
112. Under cross-examination by Mr Naivalu, Sakiusa agreed that he was the recruiter for his boss, and he recruited Osea and Cathy. He agreed that Osea shared with him the construction background and employed Osea in cleaning the compound to utilise his construction skills. To his knowledge, Osea was never inside the house. He took NM to the house at Legalega only once. She used to consume meth. He agreed, having told Osea to pick the container that was left behind and put it back in the Light-Ace that KM was driving. That's the closest Osea had ever come to contact with the drugs. He agreed that Osea was engrossed with the work that was required of him to do. He was not guarding the place.
     
113. Being asked by the Court, Sakiusa said that one container got torn while moving it inside the house, and it took 30 minutes for him to sweep the crystals out on the floor. NR, MY and IR were present when this happened. He agreed that Osea is married with four kids and his wife is pregnant with the 5^th child. He was advised that the minimum sentence for the offences he pleaded guilty to would be 20 years’ imprisonment. He did not plead guilty to ask for a lesser sentence. He just wants the Judge to hear him.
     
114. He was under instructions from Jale that the information he got should not be divulged to anybody. He did not receive any threatening messages on the App. On the days that Osea was at Legalega, Osea knew that the containers had meth because he had told him. Sakiusa agreed that the containers were stored at Legalega for approximately 15 days until they were removed by police after the raid. Viliame also knew that the containers had meth because he had told him.
     

PW18 - NR

115. After completing school education, NR entered the Centre of Approach Technology and Development (CATD) and obtained a Certificate in Carpentry and Joinery and a Class III Certificate in General Carpentry from FNU. He served as an Assistant Carpenter at the Ministry of Works and Humes Construction from 2019-2022.
     
116. While working at Humes, his brother-in-law, Norman Fisher, asked for his help in building Justin Ho’s apartment in Denarau. He was assigned to build an apartment at the first warehouse out of the three. He also resided there and dined with Justin Ho. Only Justin Ho had access to that 2^nd warehouse. Louie and LV were also staying on the ground floor while Justin Ho slept on the top floor.
     
117. He completed the construction in mid-December 2022 and went back to Suva. In mid-2023, Justin Ho assigned him to take a container from Nadi to Suva and deliver it to an Indian man. The container was sealed and wrapped. Justin Ho told him that it contained Meth. He delivered it to an Indian man, who gave him a parcel of money. He came back to Denarau and gave the money to Justin Ho. Justin Ho gave him $500.00.
     
118. On 29 December 2023, Justin Ho assigned him another job where he was told to unload some containers with Louie and LV. They left the Denarau warehouse and reached Motorex at around 10 am. They waited until it got dark. Since they could not offload the containers at Motorex, they were looking for other places where the containers could be unloaded.
     
119. Louie went back to Denarau and returned with Sakiusa in a Honda. Sakiusa told him to drive the carrier to the house where he resided. Sakiusa drove his Honda and guided the carrier to Legalega, where his tin house was. When they started offloading containers at about 9 pm, they were helped by another iTaukei boy from Raralevu who was already in the house. He could not confirm if this boy was in Court. The offloading ended at 4.30 am. Sakiusa gave him $500 for the job done. He did not know those containers contained methamphetamine until the tarpaulin was removed. He saw methamphetamine that had been spilt on the carrier.
     
120. On 13 January 2024, the police arrested him in Nausori and charged him with being in possession of methamphetamine that Sakiusa had distributed at the unloading. The police grilled him to find out where the methamphetamine bulk was. He then took the officers to the Voivoi settlement in Legalega and showed them the tin house where the containers were unloaded. He knew the consignment of meth belonged to Justin Ho because he was the one who had given him the job.
     
121. Under cross-examination by Mr. Heritage, NR denied that his sister, who was married to Norman Fisher, helped him retain a lawyer to apply for bail. He agreed that when he was arrested, he did not tell the police who the drugs belonged to. He agreed that he was not charged with having methamphetamine in his possession in Nausori to reward him for providing information to the police to raid the house at Legalega. Police assured him that he wouldn’t go to jail. He agreed to sign the immunity letter because he had promised to give evidence for the State. However, he emphasised that he told the truth in Court.
     
122. He agreed that he had been summoned to give evidence on previous occasions but failed to come to Court because some boys had assaulted him. He agreed that if the police had recorded his statement on the 13^th, it would be dated 13 January 2024. He admitted that it was the only statement he had given. He could not recall if he had given a statement on 26 January 2024.
     
123. He agreed that Norman Fisher was the one who introduced him to Justin Ho. He disagreed that Norman Fisher had also come to the Coffee Hub on 29 December 2023 to give him the key to the truck and that he received $500 from Norman Fisher. He did not see Norman Fisher at Legalega. He said that he was charged by police at Nausori only for half a gram of methamphetamine and not more than that. He agreed that he has a pending (drug) possession charge at Nadi MC. He denied that Norman Fisher had bribed police but agreed that Norman Fisher had given information to Savou, a police officer.
     
124. Upon being shown, NR agreed that his only written statement was dated 26 December 2023, and he told the truth therein. When he was arrested and gave the statement, he was high. He was inside the police vehicle when the police officers were taking out the containers from the house at Legalega. He did mention Justin Ho’s involvement to the police when he made his statement on 26 January 2024.
     
125. Under cross-examination by Ms. Volau, NR agreed to having seen Sam, the owner of the warehouse, frequently visiting Justin Ho. He agreed that Sam had been a trusted right-hand man of Justin Ho. He admitted that, when he delivered Justin Ho’s meth to other places in Fiji, he was rewarded with cocaine and money. He admitted that he had deposited a significant amount of cash (25k-100k) in the bank account under the name Charles Miller. He agreed that he was the most trusted person in Justin Ho’s drug circle. He agreed that when he failed to comply with Justin Ho's demands, he was under pressure to face consequences, including death threats. He has been assaulted seven times already and stabbed as well by masked men. He agreed that this drug circle was connected to the Russian drug mafia.
     
126. Under cross-examination by Mr. Anthony, NR said that he and Louie followed instructions from his boss at the warehouse. Under cross-examination by Mr. Wainiqolo, NR agreed that he had known Sakiusa even before 29 December 2023. Under re-examination by Mr Nasa, NR agreed that when he was arrested, he did not provide a written statement, but only told police about the consignment at Legalega.
     

PW19 - Ifereimi Savou (Savou)

127. In January 2024, Savou was employed at CID headquarters in Nakasi as the Eastern Divisional Crime Officer. On 13 January 2024, at about 8 pm, Cpl. Tom and Constable Akuila informed that a large consignment of methamphetamine was stored in a house at Legalega. The source did not want any other police officers within the organisation to conduct the raid. They trusted only the Eastern Division team. His team was concerned about the safety of the source and that of the officers handling the source. They did not want to run the risk of this information being leaked to others.
     
128. DPC (Mr Vodo) authorised the team to proceed down to Legalega to check on the information. Corporal Tom and his team obtained a search warrant and travelled down to Legalega on the same night. At 3.30 am (14 January 2024), Corporal Tom informed that they were able to locate the house where a large consignment of containers, believed to be drugs, were stacked. Having informed the Director CID and the DPC, he instructed the team to remove the containers from that house and take them to Namaka Police Station immediately, considering the risk and the safety concerns of the officers. The team suspected that the occupants were still around because they had found food that was still warm. The team was taking pictures when they were loading all those items in the truck and sending them to him on Viber.
     

PW20 Cpl Tom Matebula (Cpl. Tom)

129. In 2024, Cpl. Tom was based at the Eastern Division Task Force at Nausori Police Station. On 13 January 2024, his team was investigating a theft case at Nausori. They noticed a suspicious vehicle with tinted glasses in Nausori Town. They managed to stop the vehicle and searched the vehicle in the presence of the driver named NR. The team discovered some white substance in a zip lock bag, believed to be meth. NR was escorted to Nakasi Police Station.
     
130. The team received information from NR that the drugs seized from him was brought from Nadi. DC Jo Kama was then designated to have a conversation with NR in isolation. After this conversation, DC Jo Kama elaborated on the information he had received from NR that a shipment of drugs was offloaded at a settlement in Legalega, Nadi. Upon receiving this information, he and DC Akuila approached Divisional Crime Officer Savou (PW 19) and informed him about the information they had just received and sought authorization to conduct a raid at Legalega which is outside their jurisdiction. They got authorization and was told not to pass the information to any officer in the Western Division because they were being paid by the drug dealers in Nadi.
     
131. He led the eight-member team and proceeded to the residence of Resident Magistrate Mr. Charles Ratakele and obtained a search warrant. He tendered the information for search (PE6A) and the search warrant (PE6B), which was to search the house belonging to Justin Ho at Legalega. NR stated that Justin Ho owned two properties, one at Denarau and the other at Legalega where the consignment of the drugs was stored. That is the reason why Justin Ho's name was written on the search warrant.
     
132. After obtaining the search warrant, his team and NR left Nakasi Police Station at about 10 pm in two vehicles and arrived at Nadi at 2 am on 14 January 2024. They avoided Namaka Police Station because they were worried that the information will be leaked to Western police officers. NR gave directions to the house at Legalega (He pointed out the photographs of this house under Legalega Division in the photograph booklet).
     
133. At 3 pm, they arrived at the house at Legalega. There was no one to be seen in this house. When they entered, they noticed containers stacked all over inside the house. One container was slightly open in which they noticed a white crystal-like substance suspected to be methamphetamine. He took photographs of what they saw and sent them to Division Crime Officer who emphasized the need to transport the containers immediately to the nearest police station to avoid any security risks. He spoke to DC Samu at Namaka Police Station who arranged five twin cabs to transport the containers. They loaded the containers to the vehicles till 7 am and transported them to Namaka Police Station for safe keeping. By the time the Crime Scene Investigators (CSI) arrived at the house, the containers had already been moved and stored at the Namaka Police Bure. (Cpl Tomu pointed out the photographs depicting the containers stored at Namaka bure). He counted 797 containers and prepared a search list (PE7). The team guarded the containers until they were handed over to the acting ASP Josua Vosaki.
     
134. Under cross-examination by Mr Heritage, Cpl Tom agreed that the search warrant was addressed to one Justin Ho. He agreed that no statement had been recorded from NR, by the time they raided the house on 14 January 2024. He denied that the information was given by Norman Fisher and not NR.
     

PW 21 - PC Josefa Kama (Josefa)

135. In January 2024, PC Josefa was attached to the Eastern Division Task Force Headquarters at Nakasi. On 13 January 2024, Cpl. Tomasi designated him to talk to NR at Nakasi Police Station because they needed to extract information about the source of the drugs. In order for him to gather more information from NR, he had to assure NR that the police will help him. NR informed about a large consignment of meth in Nadi but didn’t give the exact details of who the drugs belonged to.
     
136. He got close to NR when he spoke to NR in person. NR opened up and explained the large consignment of drugs stacked inside a house at Voivoi, Legalega. NR said that the drugs belonged to Justin Ho. He was assured that this information was genuine when NR told that he was the one who dropped the drugs off there. Savou gave the green light to come down to the Western Division.
     
137. They obtained a search warrant from Magistrate Ratakele and headed down to Nadi. To avoid Western police officers, they went through CAAF compound. NR gave directions to the house at Voivoi. They found no one in the house. A lot of sealed containers were stacked inside the house. In view if the risk involved, even before the CSI team arrived, all the containers were immediately transported to Namaka Police Station as per Savou’s instructions and handed them over to the Suva Team.
     
138. Under cross-examination by Mr Anthony, PC Josefa agreed that his team kept the information secret from Nadi Police Officers because they suspected that their operation would fail, if the Nadi officers passed the information to the drug dealers.
     

PW 22 - Constable Edward Joseph Bibi (Bibi)

139. In 2024, Bibi was a Crime Scene Investigation Officer at Nadi Police Station. He went to the scene at 6 am on 14 January 2024 and took photographs. By the time he went there he did not see any containers inside the house. The drugs had already been loaded into a police vehicle. He only saw the residue of drugs on the carpet. He also took photographs at Namaka Police Bure where the drugs had been stored. Each container was numbered and photographed. He then gave all the photographs to the Digital Forensic Officer Constable Serupepeli to compile the booklet. He recognised the photographs he took and the USB that retrieved those. He tendered the USB and the photographic booklet (PE8) in evidence.
     

PW23 - WPC Ana Maria Dali (Annie)

140. Around 2pm on 14 January 2024, Annie attended the scene at Legalega on SSP Marshall’s instructions. They returned to Namaka Police Bure where PSO Miliana and her Forensics Team were testing the drugs. There were 797 containers. Each container was numbered and labeled. The containers were loaded onto a police carrier (GR 808) and escorted to the forensic science office in Nasova.
     
141. She attended the scene at Maqalevu with SSP Marshall and Cpl Seru. Cpl Seru took photographs of the house, the containers and the ziploc bags (photographgraph number 22) with the ‘Kadavu Waka’ label. The containers were counted, numbered and labelled. The Analyst conducted a test at the scene. She recognised the photographsin the photograph-booklet under Maqalevu. The next morning, containers were taken to the forensics lab in Suva. Under cross-examination by Mr Naivalu, WPC Ana agreed that there were no pictures taken of the Legalega house with the drugs.
     

PW24 - Cpl Serupepeli Rovia (Cpl. Seru)

142. On 14 January 2024, Cpl. Seru and his CSI Team attended the scene at Legalega with Constable Bibi and Constable Annie and viewed the crime scene. The exhibits were handed over for processing at the Namaka Police Station. He received photographs taken at Legalega and those taken at Namaka Bure by Constable Bibi. He printed the relevant photographs and compiled a photographic booklet. He saved all the photographs on a USB and handed it over to the Investigating Officer. He recognised the photographic booklet (PE8) and tendered the USB in evidence (PE9).
     
143. He returned to Namaka Police Station and began processing the containers at the Namaka Bure. Miliana, Principal Scientific Officer (PSO), conducted the tests on the samples of the exhibits she randomly picked. Each pack of containers was numbered individually and photographed. The next day, containers were taken to the lab in Suva.
     
144. On 20 January 2024, the CSI team, led by SSP Marshall and PSO Miliana attended the scene at Maqalevu. He took photographs and saved them on a USB. He compiled the printed photographs into a booklet, which he recognised in Court. After processing, the containers were escorted to Suva under the supervision of SP Josua and IP Osea for further testing at the chemistry lab. The photographic Booklet of Maqalevu was tendered marked as PE10.
     
145. Photographs taken by Constable Jiko of the CSI Team at the chemistry lab in Nasova and those taken at the Police Mobbyle Force (PMF) storage, where the containers were finally stored were also compiled into a booklet. He recognised the photographs and tendered the booklet in evidence (PE11). He also compiled the photographs taken at Nadi Police Station of the properties seized from the accused persons who were arrested in Cobia Island. He tendered the USB (PE12), to which he transferred those photographs.
     
146. Under cross-examination by Mr Wainiqolo, Cpl Seru admitted that the ‘three S’ step by step procedure (search- seizure- secure) was not followed at Legalega because the containers had already been moved by the time the CSI Team arrived at the scene.
     

PW 25- Miliana Raravuso Wereibaunona (PSO Miliana)

147. Miliana is the PSO at the Fiji Police Force Forensic Chemistry Lab in Nasova. On 14 January 2024, she conducted presumptive tests on samples randomly obtained from 797 containers of white crystals, which were handed to her by Inspector Josua at the Namaka Police Station. The samples were then subjected to confirmatory tests at the chemistry lab at Lautoka Police Station. She explained the testing process in detail during her evidence. The samples tested positive for methamphetamine. The total weight of the 797 containers was 3,189.7 kilograms, equivalent to 3.1 tonnes. Her report dated 18 January 2024 was tendered as PE 13(A).
     
148. The same testing procedure was followed on 20 January 2024 when 331 containers of white crystals were handed over to her by Inspector Josua at the house in Maqalevu. She conducted the presumptive tests at the site and the confirmatory tests at the Lautoka Police Station. The tests produced positive results for methamphetamine. The total weight of the consignment that was found in Maqalevu was 1,053.5 kilograms, which is equivalent to 1.05 Tonnes. Her test results report for the Maqalevu consignment was tendered marked as PE13 (B).
     
149. To clarify the issue raised by Mr Naivalu during cross-examination of the sampling process, whether she took only 10 samples from the entire lot of 797 containers found at Legalega, Miliana explained that she selected 10 large containers, 10 medium-sized containers and 10 small containers and took one scoop from each category to create one sample from each, representing the bulk. The same procedure was followed for the Maqalevu consignment. She also stated that once the containers arrived at the lab in Nasova, a comprehensive testing was carried out by unwrapping each container to ensure it contained methamphetamine. She recorded the gross weights of all 797 containers and the 331 containers at the location. At the Nasova lab, they removed the packaging to determine the net weight of the crystals. The total net weight for the consignments from Legalega and Maqalevu was recorded as 4.15 Tonnes.
     

PW26 - SSP Margaret Marshall (SSP Marshall)

150. SSP Marshall is the Director of the Forensic Science Services in Nasova. She testified as to how she carried out the drug destruction order issued by this Court on 13 December 2024. She tendered an affidavit dated 5 April 2025 and attached to it was the full report of the drug destruction process conducted from 24 February to 28 February 2025, daily at Dignified Crematorium at Davuilevu, Nausori. She also tendered the certificate for each day, signed by her and the Witnessing Officer. The photographgraph booklet and the USB that retrieved the video recording of the destruction process were also tendered.
     
151. Under cross-examination by Mr Naivalu, SSP Marshall agreed that when the CSI team arrived at Legalega on 14 January 2024, the search and seizure had been done, but the crime scene was not secured for the CSI. She agreed that her team played no role at Legalega and that the ‘Three S’ step-by-step process was observed in breach. Upon being questioned as to why the raiding team had not secured the scene and waited for the CSI to come and investigate the crime scene, Cpl. Jim (Timoci) explained that a large consignment of dangerous drugs was found in the house, posing a great security risk. They used their discretion to bring the drugs to the Namaka Police Station immediately as per the instructions of their superiors.
     

PW27 - Cpl Tomasi Tomu (Cpl Tomasi)

152. Cpl Tomasi’s testimony at the voir dire proceedings was adopted by consent for this trial. On 22 January 2024, Cpl Tomasi’s team went to Cobia Island to arrest the three suspects of the Nadi drug bust who were suspected to be fleeing Fiji’s jurisdiction. On the 23^rd, they managed to arrest Justin Ho, Louie Logaivau and Jale Aukerea. The suspects were taken to Taveuni Police Station, where they were searched. All the items, including the money found in their possession, were seized and documented. The suspects were escorted to the Nadi Police Station. The suspects and the property were handed over to ASP Josua and the CSI officers, who exhibited the items seized.
     
153. Under cross-examination by Mr Heritage, Cpl. Tomasi agreed that no drugs were found on Justin Ho. The cash found on Justin Ho was seized because they suspected that the money was the proceeds of crime. He denied that the cash taken from Justin Ho’s possession was raised from his legitimate businesses. Under cross-examination by Mr Wainiqolo, Cpl. Tomasi said that more than FJD 2,000 was seized from Jale Aukerea. He disagreed that money was raised from Jale’s Kava business. Under cross-examination by Mr. Anthony, Cpl. Tomasi agreed that Louie did not have his passport in his possession. Under re-examination by Mr Rabuku, Cpl. Tomasi said that he formed the view that the money was tainted because the amount was big in the circumstances under which they were arrested in a deserted island.
     

PW28 - WPC Marica Marama (WPC Marica)

154. WPC Marica was stationed at the Taveuni Police Station as the Exhibit and the Crime Writer. On 23 January 2024, Cpl. Tomasi and his team brought three suspects, namely, Justin Ho, Louie Logaivau and Jale Aukerea, from Cobia Island. She assisted PC Alusio in counting the money and preparing a search list for the property seized from Justin Ho. He recognised the search list for Justin Ho. The total cash found on Justin Ho was FJD 21,691.60 (9 x 50 AUD +1 x 100 USD + 22 x20 FJD). The officers suspected that the money was the proceeds of the drugs trade. The suspicion was based on the information that the suspects had fled Nadi after the drug bust. Justin Ho refused to sign the search list to acknowledge that the money was seized from his custody. She recognized the search list which PC Alusio prepared.
     
155. Under cross-examination by Mr. Heritage WPC Marica, having denied that the money was from Justin Ho’s legitimate business, said that it was very risky for Justin Ho to carry that large amount of money without depositing it in the bank. She agreed that Justin Ho carried no travel documents, but he had the car keys.
     

PW29 - PC Alusio (PC Alusio)

156. In January 2024, PC Alusio was based at Taveuni Police Station. On 23 January 2024, he prepared a search list with WPC Marica for properties seized from Justin Ho. He tendered the search list (PE15) and the currency notes (PE16) given to him by Cpl. Tomasi, who had searched Justin Ho. The money and property were later given to Cpl. Tomasi, who escorted the suspects to Nadi. Under cross-examination by Mr. Heritage, PC Alusio agreed that Justin Ho remained silent while the money was being counted.
     

PW30 - DC Arthur Fesaitu (DC Arthur)

157. In January 2024, DC Arthur was stationed at Taveuni Police Station. On 23 January 2024, he conducted a search on Jale Aukerea at the Taveuni Police Station and prepared a search list. The blue and black Nike bag that was found on Jale Aukerea contained some personal items and FJD 2,100.85. Jale Aukerea signed the search list prepared by Acting Cpl MY in his presence. He tendered the search list (PE17) and the money he had counted in evidence (PE18). He suspected that this money was acquired from the sales of drugs that was found in Nadi. Under cross-examination by Mr. Wainiqolo, DC Arthur said that he was not aware that Jale Aukerea was running some legitimate businesses.
     

PW31 - Sgt. Temesi Saladuadua (Sgt. Temesi)

158. Sgt. Temesi’s evidence from the voir dire proceedings was adopted for this trial by agreement. Sgt. Temesi interviewed Justin Ho from 25 January to 28 January 2024 at the Nadi Police Station. He tendered the CD of the video recorded caution interview (PE19A) and the transcribed interview notes (PE19B) that were held admissible by this Court.
     
159. Under cross-examination, Sgt. Temesi agreed that Justin Ho at the tail end of the interview provided partial admissions and explanations to the effect that he was forced and threatened by two people to carry out the alleged offences. One of them was Norman Fisher. He investigated about Norman Fisher, but he was on the run, overseas. If Justin Ho cooperated during the 1^st day of the interview, they could have checked on Norman Fisher. He informed SI Simione about what he heard from Justin Ho about Norman Fisher.
     

PW32 - D/Sgt Ilikimi Nacama (Sgt. Nacama)

160. Sgt. Nacama interviewed David Otto Heritage (David) at the Nadi Police Station from 25 to 28 January 2024. The interview was video recorded and burnt into a compact disc (CD). He tendered the CD (PE20A) and the transcribed interview notes (PE20B) which were held admissible by this Court. Heritage cooperated with the police and made admissions from the commencement of the interview. The evidence given by Sgt. Nacama at the voir dire hearing was adopted by consent for this trial.
     

PW33 ASP Asipeli Waqa (ASP Waqa)

161. In 2014, ASP Waqa was serving as the Divisional Crime Officer of the Central Division. He interviewed Louie Logaivau (Louie) under caution from 25 to 28 January 2024 at the Nadi Police Station. His evidence during the Voir dire inquiry was adopted for this trial by agreement. The interview was video recorded and the recording was burnt into a disc (CD) and transcribed. He tendered the CD (PE21A) and the transcribed interview notes (PE21B). Louie provided explanations in relation to his involvement in these proceedings.
     

PW34 DC- Atama Rogocake (DC Atama)

162. DC Atama’s evidence from the voir dire hearing was adopted for this trial by agreement. DC Atama interviewed Jale Aukerea from 25 January to 28 January 2024 at the Nadi Police Station. He tendered the interview notes of Jale Aukera marked as PE 22 in evidence. Under cross-examination by Mr Wainiqolo, DC Atama agreed that Aukera had stated in his interview that he was threatened by an unknown person.
     

PW35 - D/ Sgt. Martin Koli (Sgt. Koli)

163. Sgt. Koli interviewed Viliame Colowaliku (Viliame) under caution on 17 -18 January 2024 and again on 7 February 2024 at the Nadi Police Station. The admissibility of the cation interview of Viliame was not challenged by the Defence. The original record of interview of Viliame was tendered and marked as PE 23. He read the relevant parts of the admissions made by Viliame from Q&A 94 onwards.
     

PW 36 - ASP Josua Vosaki (ASP Josua)

164. In 2024, ASP Josua was the Manager, Major Crime Division at the CID headquarters based in Toorak, Suva. On 14 January 2024, the Director of CID, SSP Loraini Seru, instructed him to form a team to head down to the Western Division to assist in a drug seizure at the Namaka Police Station. He formed a team and headed down to Nadi. At Namaka Police Station, they had a briefing with SSP Seru, who appointed him as the Investigating Officer. They discussed the drugs that were kept at the Namaka Police Bure.
     
165. He took over the investigation after liaising with the Eastern Task Force Police Team that seized the drugs from Legalega. He took custody of the 797 containers and upon arrival of the Forensic Team after 6 pm, he handed the containers over to the PSO Miliana and her team for processing. The test returned positive for methamphetamine. Upon completion of processing (analysis), the containers were handed back to him. The next morning (15^th), all the containers were transported being escorted by police and military to Forensic Lab at Nasova. IP Simone Ravouvou from CID Lautoka was appointed as the Commanding Officer to carry out the investigation in the West while he was tasked to oversee the movement of drugs.
     
166. Upon arrival at Nasova, all 797 containers were handed over to SP Jitoko and PSO Miliana at the Forensic Services Department. The lab took four days for processing, and, on 19 January 2024, the consignment was handed back by SP Jitoko and Miliana. All 797 containers were escorted to Police Mobbyle Force (PMF) storage at Nasinu, where they were locked in a shipping container. He was in possession of the key until it was opened when the drugs seized from Maqalevu were brought.
     
167. The Director of CID wanted him to go back to Nadi on 20 January 2024, where another consignment of drugs had been discovered. When he arrived at the house at Maqalevu, he met Inspector Simione, Inspector Osea and the Forensic team comprising SSP Marshall and her team. The Analyst (PSO Miliiana) processed and tested the drugs till the next morning (21^st). Upon completion of the tests, 331 containers were loaded into a police truck and escorted to Nadi Police Station until the backup vehicles and military personnel were arranged. Then the consignment was escorted straight to the lab at Nasova and handed over to SPG Toko and PSO Miliana. The lab took three days for analysis and on the 23^rd, SPG Toko and Miliana handed the 331 containers over to him and escorted them down to PMF storage, where drugs seized from Legalega were stored. The shipping container was securely locked. He kept the key with him until the consignment was taken out for destruction.
     
168. On 24 January 2024, the Director CID instructed him to wait at Draunibota jetty to receive Cpl Tomasi’s team from Vanua Levu with the three suspects, Justin Ho, Louie Logaivau and Jale Aukerea. Once they arrived, he escorted the suspects and the police team down to Nadi Police Station.
     

PW 37 ASP - Simione Ravouvou (ASP Simione)

169. In January 2024, ASP Simione was an Inspector based at the CID, Lautoka Police Station. On 14 January 2024, he received instructions from SSP Seru to oversee the investigation as the Ground Commander. He organised a team and travelled to Namaka Police Station, where the Task Force Team was waiting to follow up on the drug seizure at Legalega. The drugs had already been transported to Namaka Bure. Upon arrival at the tin house at Legalega, from where the drugs had been seized, they carried out a house-to-house search operation to arrest the suspects.
     
170. He was engaged in executing search warrants, collecting documents from the Registrar of Companies, banks, following up likely suspects, arranging interviews, seizing other drugs yet to be confiscated and the property or vehicles involved, as well as extracting CCTV footage. He instructed investigations into the proceeds of drugs and possible money laundering. Based on the information provided by Sakiusa, the house at Maqalevu was raided, where a large consignment of drugs was discovered.
     
171. Since Justin Ho, in his caution interview, had mentioned the name of Norman Fisher (Norman Fisher), he instructed the narcotics team to check on this individual because they had information about all drug dealers in Fiji. However, they were unable to locate Norman Fisher. The Narcotics Division was not seriously involved in the investigation due to its involvement with drug dealers and trust issues with them. After viewing the CCTV footage taken during the investigation in Court, ASP Simione tendered it in evidence (PE12 and the USB as PE12A). The photographic booklet was tendered marked as PE13.
     
172. Under cross-examination by Mr. Anthony, ASP Simione agreed that foreigners, particularly a Russian guy, were involved in this case. He is not aware if Louie had given answers in his interview to the effect that he was threatened by some particular people or persons.
     
173. Under cross-examination by Mr Heritage, ASP Simione agreed that the information received after the raid revealed that the Legalega house belonged to Josefa Roqica. He agreed that Sakiusa had mentioned Norman Fisher (Norman Fisher) way before Justin Ho's interview and that Norman Fisher had become a person of interest in this case. Sgt. Temesi also relayed what Justin Ho had said in his interview about Norman Fisher. A team was tasked to look for Norman Fisher from the very first day Sakiusa had mentioned Norman Fisher’s name, but Norman Fisher could not be located in January 2024. He agreed that the police had recorded a statement from Norman Fisher a week before his evidence on the directions of the ODPP. He denied that Norman Fisher is a police informant.
     
174. During the investigation, he was never in contact with NR. NR had given information to the Nausori Police team, albeit not released to him. He agreed that CCTV footage was uplifted from the True-Mart car park. After the investigation, he came to know that Norman Fisher had a black Audi MQ 975.
     
175. Based on the information he received, Justin Ho had played a major role in the alleged drug activity. He agreed that Justin Ho (physically) came in contact with the drugs only at the warehouse in Denarau. He agreed that there was no information suggesting that Justin Ho was present at Motorex, Legalega or Maqalevu.
     
176. He is not aware whether a witness named Josua Wakolo Raduta (Josua) had given a statement. Upon being shown the statement, he agreed that Josua had given a statement on 25 January 2024. Only one Russian man came into the picture during the investigation, and none from Mexico. They could not locate this Russian man. He agreed that there was no information that Justin Ho had spoken to this Russian man before 20 December 2023, but to David Heritage.
     
177. Under cross-examination by Ms Volau, ASP Simione agreed that in relation to this case, there's evidence of Russian as well as Australian mafia involvement. He agreed that the Fiji Police Force does not have any safety measures to protect those who become police informants. Under cross-examination by Mr. Wainiqolo, he agreed that Sakiusa had mentioned that he was taking instructions from Jale Aukerea and Tacina.
     
178. Under re-examination by Mr Rabuku, SSP Simione said that a proper investigation was done on Norman Fisher, but it was not revealed that he had come into contact with the methamphetamine consignment that is the subject of this prosecution.
     

PW 38 -Norman William Fisher (Norman Fisher)

179. Norman Fisher is residing in Vuda with his wife and five children. In December 2023, he heard about a big drug bust in Nadi. He had known Justin Ho for roughly a decade. He and his family used to socialise with Justin Ho at the Northern Club.
     
180. He denied Justin Ho’s claim that he had threatened Justin Ho and forced him to participate in bringing in and moving the methamphetamine around Nadi. He also denied having threatened Justin Ho that he will kill him (Justin Ho) and his family if he (Justin Ho) failed to follow his instructions to deal with methamphetamine. He never threatened Justin Ho’s sister or any other witness in these proceedings. When Justin Ho was on bail, he never threatened Justin Ho or his family.
     
181. He had nothing to do with the methamphetamine consignment that had come into Fiji in December 2023. He agreed that, during police investigations, the police had come to see him and inquired about his involvement in drugs. In February 2024, he was taken to Nadi Police Station, where Sani from narcotics questioned him about this case. He denied any knowledge of the drugs. Justin Ho had never lodged any complaint either in 2023 or 2024, claiming that he had been threatened. Police never contacted him to inquire if he had threatened Justin Ho or his family. The police recorded no statement in February 2024. His statement was eventually recorded on 14 June 2025.
     
182. Under cross-examination by Mr. Heritage, Norman Fisher admitted that NR is his brother-in-law. He admitted that he was charged for impersonating one Charles Miller and giving false information to open a bank account at Bred Bank, to which he pleaded guilty. He denied driving or owning a black Audi bearing registration number MQ 975. He could not recall meeting a person named Vikash Chand in December 2023. He admitted knowing one Isaac Lesiyanawai (Isaac) but denied that Isaac works for him. He denied having advised Isaac to hire a truck to transport household items. He admitted having tattoos on both his arms. He denied meeting NR and Isaac at Coffee Hub on 29 December 2023 and giving Sakiusa a key to a truck owned by Vikash Chand. He had never met Sakiusa Tuva.
     
183. He could not recall if he was at the Navakai True-Mart car park in a black Audi on 28 December 2023. When shown a photographgraph of the True-Mart car park, Norman Fisher denied that the person in the black Audi was him. He is not sure if Justin Ho drove the Hyundai Tucson depicted in the photograph. He denied threatening and forcing Justin Ho to drive the truck. He denied following Justin Ho to his warehouse and threatening him again. He denied that, faced with his threats, Justin Ho had no choice but to drive the truck JL264.
     
184. Norman Fisher admitted knowing Justin Ho’s family members, Cecil James (father), Rudolf Ho James (brother) and Elizabeth (sister). Justin Ho was the best man at his wedding. Norman Fisher asked why he would threaten someone who was the best man at his wedding. Jale Aukerea is his family friend. He had had grog once or twice at Kava Kings, which Jale owned. Norman Fisher denied being at Motorex on 29 December 2023 and having followed the truck from Motorex to Legalega. He denied picking some containers from the truck with NR. He agreed that police officers had been to his house several times in January 2024 regarding this case. He denied going into hiding from 27-28 January 2024.
     
185. His Australian visa was cancelled because he did not renew his permanent residency. He acknowledged knowing Sevu, a police officer from Suva. He denied receiving any information from Sevu about police raids. He denied threatening and forcing Justin Ho to leave Fiji after receiving information from Sevu that the house at Legalega was to be raided. He denied giving USD and AUD to Justin Ho. Under cross-examination by Mr Wainiqolo, Norman Fisher agreed that he was raised in Australia alongside Jale Aukerea.
     

PW 39 - Joshua Wakolo Radua (Joshua)

186. Joshua gave a statement to the police on 25 January 2024. This statement was tendered in evidence (PE 25) by consent. Under cross-examination by Mr. Heritage, Joshua said that he had met a European man, Yoghurt, on 14 December 2023, looking for a boat. Yoghurt never mentioned the name of Justin Ho.
     

Evidence for Defence

DW1: David Otto Heritage (2^nd Accused)

187. David has been running a marine repairs business called David Marine Repairs in Denarau. In 2023, Sam Amine (Sam) approached him and engaged him to look after Sam’s jet skis and outboard motors at his workshop. Sam, a Lebanese, owns the workshop where Justin Ho operates. In November 2023, Sam informed him about a consignment of drugs that was expected to arrive in Fiji. Sam asked if he could arrange the shipment and offered to pay him. Sam indicated that Justin Ho would give him $30,000 to cover his expenses and asked him to be in contact with Justin Ho when he (Sam) was not around. He agreed to take on the job. Justin Ho handed him a Mobbyle phone with the Threema app installed on it. On this app, only Sam and Justin Ho were to communicate with him using code names. One week before the trip, Justin Ho visited his workshop and gave him $30,000.
     
188. On 20 or 21 December 2023, Sam messaged the exact coordinates indicating where he was supposed to go to locate the super yacht. Justin Ho messaged him to arrange a barge and the fuel. He booked David Wright’s barge on the pretext that it would be needed to transport food and fuel to a super yacht. David Wright arranged his barge and the crew at Vuda Marina. Apenai, his brother-in-law and two others joined him on the first charter, which departed around midnight.
     
189. He had never been involved in drugs. His first involvement just shocked him. He changed his mind because he did not want to commit a crime by getting the drugs in and did not want to give the correct coordinates to the captain. He advised the captain that the yacht should be around Yaqeta. He informed Justin Ho on Threema that they would return and refuel because the yacht could not be found. He advised the captain to lie to his boss (David Wright) that they had successfully unloaded the fuel to the yacht. To prevent David Wright from seeing that the fuel was still on the barge, he asked the captain to seek David Wright’s permission to go to Fantasy Island. David Wright was adamant that the barge be returned to Vuda Marina. Upon arrival at Vuda, he informed David Wright that the captain of the super yacht had mistakenly provided the incorrect location, and he needed to go out again.
     
190. They fueled the barge and embarked on the second trip on Justin Ho’s instructions. This time, he gave the captain the exact coordinates that Sam had given him. The captain plotted it on his GPS and said the yacht was too far away from Viva, the Fijian border. The people on Threema forced him to go to that location. They managed to go to that location, but they still could not find the yacht. He advised the captain to go back. When he messaged Justin Ho to inform him that the yacht was not there, Justin Ho started swearing at him and said, ‘fuck, don't lie, it's just bullshit’, and forced him to go out again. It was dark, so they slept at Musket Cove and returned to Vuda Marina in the morning. He finally made up his mind not to go out again and lied to Justin Ho that the barge had other bookings.
     
191. When he went home, Justin Ho kept calling him. He headed to his workshop to finish his outstanding jobs. As soon as he got out of the car, Justin Ho came in a tinted Hyundai with a short European guy whom Justin Ho introduced as his Russian friend. It was the first time he had met this Russian man. The Russian started questioning him about the first trip. When he explained that he could not find the yacht, the Russian man forced him to go out again and locate the yacht somehow. He said the barge had another booking. The Russian insisted in a military voice that he needed to use the same barge. The Russian kept pressuring him and took a picture of his vehicle number plate and told him, ‘I know what car you're driving, and where you live’ Justin Ho didn't say anything and went back to his workshop.
     
192. He transferred $3000 to David Wright’s account and arranged the third trip. He rushed to Vuda Marina with Apenai and the Russian man followed them in his car. The captain and his crew were late. The Russian man became impatient and suspected that he was lying. The Russian man then went to his car and asked him to come and sit beside him. When he sat in the passenger seat, the Russian man pulled out a gun and pointed it at his head and told him not to lie and arrange everything for the shipment with Justin Ho. If not, he'll start with his children, cut them into pieces and feed them to the sharks. He was so scared and thought of the Russian mafia and the Russian couple that was cut into pieces and dumped in Natadola.
     
193. When the captain arrived at the Marina, the Russian told him: ‘You're not gonna go, you’re gonna stay and arrange for the truck for the pickup and you will store it in your workshop, and take instructions from Justin Ho on what needs to be done next’. When the barge left, he came home and slept. The next day, he arranged a hiab truck and headed to Fantasy around 5 am. He called the captain and informed him to come to Fantasy Jetty. When the barge arrived at Fantasy, he took the Russian man and dropped him at Vuda Marina, where his car was. The captain and the boys put the containers into large garbage bags. When the hiab truck arrived at the jetty, they loaded the containers onto the truck and transported them to his office at Denarau, where they were stored. Justin Ho came to the workshop and put the Fiji Times on the bales of drugs and took pictures. He gave Justin Ho the key to the office and left. After making payments to the barge, the captain, the hiab truck and fuel, he used the balance of money for shopping and to buy an air compressor and a generator, which the police seized later.
     
194. He told everything to the police except for the threatening part, because he couldn't trust the police. If someone had informed the cartel, they would have come straight to him. He believed that no one could escape the mafia and even the police wouldn't be able to protect him and his family. Ever since this incident, he has been living in fear. After this incident, he met this Russian man on two occasions at his workshop, where he was told that he had boys and five ships. On the third occasion, the Russian man had come with two other Europeans. He was given the key to the boat and told to get the bond money back from Joe.
     
195. Under cross-examination by Mr Rabuku, David agreed that in early November, he undertook to facilitate the shipment of drugs into the country and until 22 December 2023, there had been no threats to him. He agreed that he never went to the police or reported to anybody when he already knew that a large consignment of drugs was being brought into the country, and also when it was already offloaded and stored in his office at Denarau. He agreed that for the whole of November 2023, he, Justin Ho and Sam communicated with each other on the Threema app about the drugs being brought into the country. He agreed that $30,000 was received to facilitate the shipment of the drugs into the country. He had neither seen the Russian man nor known his history until being introduced to him by Justin Ho. As a matter of fact, he did not know that this man was from Russia. He believed what Justin Ho said.
     
196. He knew that carrying a gun and threatening someone with a gun were criminal offences. He did not bother to go to the police, even when he knew that the Russian man had left Vuda Marina to bring drugs into the country. He told the police everything about Justin Ho’s involvement, but he did not mention the Russian man threatening him until this trial. He admitted that he was expecting $2 million that was promised to facilitate the shipment of drugs into Fiji so that it could improve his business. He said that Justin Ho had control and the keys to the warehouse where the drugs were kept. He was only paid to paint the floor of that warehouse around the middle of January by Sam. Justin Ho had told him that Sam was charged and remanded in Australia for drug-related offences. He did not trust the Fiji Police Force because of the stories he had heard about them, although he had never interacted with them.
     
197. Under cross-examination by Mr Heritage, David agreed that he was renting Tasvindra PW (5)’s building to run the David Marine Repairs. He admitted that he rented another space in the same building on 16 December 2023 and a third space opposite the supermarket within a short period. He denied that the Russian man had approached him before 14 December 2023 and given money to rent the space on 16 December 2023. He agreed that in his caution interview, he had never stated anything about the Russian man threatening him or Justin Ho swearing at him. He agreed, having told the police that the coordinates were given to him by Justin Ho and not by Sam through the App. He denied deleting the WhatsApp messages because he wanted to hide his conversations with the Russian man that took place before 20 December 2023. He explained that he changed his guilty plea to a not guilty plea after a discussion with his wife so that he could tell his side of the story. He still feels the fear instilled in him by the Russian man, but he now dares to reveal the Russian connection after discussing it with his wife and setting up lights around his house for protection.
     

DW2 - Josua Lorima (Lorima)

198. Lorima is a Marine Technician by profession. He used to work with David twenty years ago. He came to give evidence on David’s request to tell what he saw. In December 2023, he was employed at Vuda Marina. A few days before Christmas, while walking towards Vuda Marina, he saw David's lorry parked near a white car. Through the window of the lorry, he saw David talking to a European man who was standing outside his car. The European man was blaming David (in English) in an aggressive manner, pointing an ‘equipment’ which looked like a gun at David’s face. He was shocked. He turned and walked away. He did not tell anybody of what he saw or bother to go to the police.
     
199. Under cross-examination by Mr Rabuku, Lorima agreed that over the past 20 years, he had spoken to David several times. He heard through the media that David was arrested for drugs that were brought in. Still, he did not go to the police to say what he saw with David. He was not sure what he saw was a gun. David had told him not to tell anybody of what he saw because his family was at risk. After the drug bust, he met David only once. That was when David came a week ago to request that he be a witness in Court.
     

DW3 - Louie Frank Benjamin Logaivau (Louie)

200. Louie was raised by his mother in Savusavu. His father died when he was one year old. He came to Lautoka, where he completed his studies at Natabua High School and went back to his village. He returned to Nadi in 2020 to work for a Bible shop where his mother was the director. When his mother passed away in 2022, he started looking for a job.
     
201. He applied for a job at the newly opened Subzero business in Denarau, which comprised a cafe, a car wash and a barber shop owned by Justin Ho and his partners. This business appeared legitimate, having been opened by a Cabinet Minister. [He tendered a photograph showing the former Minister for Trade with Justin Ho and his business partners and the speech the minister had delivered (3DE3) at the opening function]. He came to work at the café as a barista, and when the café collapsed in January 2023, he moved to the car wash, where LV worked. He and LV used to stay in the basement underneath Justin Ho’s apartment. Justin Ho paid him $ 140 a week in cash.
     
202. NR was a frequent visitor to the warehouse as he used to do maintenance work for Justin Ho. Sam Amine, the landlord of the warehouse, also visited Justin Ho frequently. In mid-December 2023, around 6-7 pm, while having grog at the car wash with his friends outside, a tinted car approached and parked outside the gate. He became concerned when he got a call from Justin Ho, alerting him to be careful because a few people were looking for him. In five minutes, the same car came again and parked at the same place. One of the men in the car took a photograph of them. He was fearful for his life because of the way they took photographs. As he tried to approach the car, it drove fast. When he ran to the gate to lock it, the same car turned around and came with two other cars behind it. He managed to lock the gate. A white skinny man got out of the car and started yelling at him. He said: ‘who the fuck are you? Where the fuck is Justin Ho?’ When he said Justin Ho had gone out, the white man said: ‘well, you better fucken tell him that he better be here on time’. He couldn’t think straight at that moment. He got really scared and headed back into the warehouse with his friends and locked it up. He told Justin Ho what had happened. Justin Ho said: Don't worry about it, just lock the warehouse and stay inside.
     
203. On 22 December, he was at the warehouse, just hanging out with LV, because the car wash had been closed in early December due to the water blasters being broken. The barber shop was open for a while and then they took the year-end break. Justin Ho wanted him to do a job for him because his (Louie’s) life was at risk. Louie asked how his life could be at risk and what he had done. Justin Ho said, ‘Just stop asking a lot of questions, just follow his instructions’. Justin Ho then informed him about the ‘stuff’ that was coming to the warehouse from the people who had taken the photographs of him. Justin Ho warned him to carry out what they wanted, as they had seen his face.
     
204. On 23 December 2023, Justin Ho ordered him to go to the Bula Bus yard with LV to move the containers into the office or face the consequences. He did not want to get involved in anything, but had no option but to carry out the orders when he was told how NR had been beaten up when he failed to carry out orders. He believed that his family was at risk. He wanted to go home and complain to the police. But Justin Ho warned him not to leave the premises and warned that nowhere was safe for him, as even the police were involved.
     
205. Around 9 am, he went to the Bula Bus yard with LV, where the containers wrapped in bale bags were sitting beside David Marine's Repairs. By looking at the substance that was coming out of some of the containers, he realised it was drugs. He got even more scared. He wanted to leave that place, but Justin Ho warned him. Being under pressure, they moved the containers to the empty office beside David Marine's Repairs. It took the whole day to move the containers using a Voxy rental. Because they couldn't move all the containers into that room, they were told to move the rest to the second unit of the warehouse of which Justin Ho had the keys to. On the 24^th, they loaded the rest of the containers onto a truck and moved to the second unit of the warehouse.
     
206. On December 27th, Justin Ho instructed them to relocate the containers from the second warehouse to Motorex. The truck loaded with containers was already parked near the warehouse. Justin Ho told him and LV to accompany the truck just to make sure that it got to Motorex. They just followed Justin Ho’s orders because of fear. He saw cuts on NR’s face, which looked as if he had been beaten up. NR told him that he had been beaten up by some men because he didn't follow what he was ordered. He did not tell his counsel of what he had heard from NR. After the truck was parked at Motorex, NR came there the next day (28^th) in his car and took the keys to the truck. He returned to Denarau and confined himself to the warehouse because, after being warned by Justin Ho, he didn’t want to risk his life.
     
207. He learned about the drug bust that happened in Legalega and Maqalevu. When he asked Justin Ho about it, Justin Ho said: Don't think about it too much, just stay here inside the warehouse and keep yourself inside. I don't want you going outside. On the night of 20 January 2024, a few hefty men suddenly came to the warehouse. They threw him inside the boot of a small car. They took him to the Wyndham Roundabout in Denarau, where he was thrown into another boot and transported out of Denarau. He later found himself in Saweni, where they took him out of the boot and locked him in a room.
     
208. The next morning, when the door was opened, Justin Ho came into the room. Justin Ho was in a rush and told him to accompany him (Justin Ho) to Vanua Levu, saying ‘they’ were after us. When he showed his reluctance, Justin Ho said: No, you don't have a choice, you have to go with me because the Russian Mafia gang was looking for you. Justin Ho said that they were going to Vanua Levu to be there for a while and come back when everything cleared out.
     
209. They arrived in Vanua Levu on 22 January 2024 and proceeded to Savusavu, where they met Jale, who had been picked up from the roadside. He had not seen Jale before. From there, Justin Ho told him that they were heading somewhere around Taveuni. He had no choice but to follow Justin Ho’s orders. On the way, he overheard the conversation between the captain and Justin Ho where Justin Ho was asking if they could be taken to Wallis and Futuna. At that moment, he was truly scared and not ready to leave Fiji. The captain dropped them off at Cobia Island and returned to Taveuni to get fuel and a larger boat with more horsepower.
     
210. Louie agreed that he had not given a detailed account in his caution interview because there were so many things happening at that moment leading up to the interview, which he described in his evidence. His mental state was so bad after being detained for about six to seven days by the police. He never profited from drug dealings. He was given only $ 500 just to stay inside the warehouse. Louie said he never intended to deal with the drugs, but just wanted to be employed and support his sister.
     
211. Under cross-examination by Mr. Nasa, Louie confirmed that, until he gave evidence in Court, he had never revealed that Justin Ho had threatened him. Instead, he, at the interview, had blamed Jale for threatening him. He agreed that Justin Ho trusted him and maintained communication with LV and Justin Ho’s other employees through him. He agreed that he remained silent for most of his interview to protect Justin Ho.
     
212. Louie agreed that he was paid in cash and not paid FNPF contribution although he considered Subzero to be a legitimate business. He did not deny that Justin Ho was operating his three businesses as a front for his illegal drug activities. He agreed that the threats were not directed at him, but he believed what Justin Ho had told him about the threats. Later, he realised the threats were also coming to him through Justin Ho. He agreed that he was not threatened when he and LV counted the containers for stock-taking for 4-5 hours.
     
213. He was unsure whether Justin Ho drove the truck into the warehouse on 27 December 2023, before the transfer was made to Motorex. He agreed that he, LV and Justin Ho loaded the containers onto the truck, which Aporosa later drove to Motorex. He was uncertain of Aporosa's whereabouts when the containers were being loaded into the truck. He confirmed that he and LV accompanied the truck from behind when Aporosa took the lead. They could not unload the truck at Motorex due to the presence of people and want of manpower.
     
214. Under cross-examination by Mr Heritage, Louie agreed that when he was arrested at Cobia Island, he did not inform the police that he was taken hostage and taken from Saweni because he was not sure if the threats were coming from the mafia directly or from Justin Ho. He denied him having been threatened by Jale to leave Viti Levu. After the drugs were taken to Motorex, he never received any other instructions from Justin Ho.
     
215. Under cross-examination by Ms Cava, Louie agreed that Ratu Aporosa was never present when the containers were being loaded into the truck. Under cross-examination by Mr Wainiqolo, Louie said that his statement in his caution interview—that he was threatened by Jale Aukerea and his boys—is not correct. That was what Justin Ho had told him. Justin Ho had told him that the boys who took photographs were sent by Jale. His statement that the drugs belonged to Jale and his associates is also not correct. His statement linking the white Voxy to Jale is also not correct. His statement that the loading and offloading of the drugs were done on Jale’s instruction is also not correct.
     
216. Under re-examination by Mr. Anthony Louie explained that he did not name Justin Ho in his caution interview because he thought that if he named him (Justin Ho) something might happen to him. He named Norman Fisher and Jale in his caution interview because that's what was told to him by Justin Ho.
     

DW4 - Ratu Aporosa Davelevu (Aporosa)

217. Aporosa has been living in Fiji since he was deported from Australia in 2017. Driving charges led to his deportation. Until he was charged in this case, he was employed at Tropic Woods as a Forklift Driver. On 29 December 2023, he went to Subzero Car Wash in Denarau for a haircut with his cousin Michael. After finishing his haircut, he was approached by Justin Ho, whom he had met a few times, and asked if he could drive a manual truck. When he said ‘yes’, Justin Ho inquired if he could drive the truck to Motorex. The truck was fully covered and sealed, and he did not check what was inside. Everything happened so quickly, and he did not notice anything suspicious.
     
218. He agreed and drove the truck to Motorex with his cousin Michael. He had never been to Motorex before or knew where it was. Louie guided them to take the truck to Motorex and told him to park it at the back. He did not ask Louie what was inside the truck when he was given the key to the truck. He was not present when the truck was being loaded. He was waiting at the barber shop to get a haircut for half an hour.
     
219. After a few days, he was arrested and interviewed by the police. He remained silent at the interview. He didn't answer any questions, because he didn't know what he was taken for. He is not sure if he had asked Justin Ho what was in the truck. Justin Ho said later that the truck was loaded with furniture.
     
220. Under cross-examination by Mr Rabuku, Aporosa agreed that he answered some questions and only remained silent when it came to driving the truck at the interview conducted from 23 January 2024 over three days. Aporosa agreed that the allegation against him was explained at Q14 and that he understood what the police were questioning him about. He agreed that he didn't state to police at the interview that he was not aware that it was drugs that he was transporting. Instead, he remained silent because he was shocked when he heard about the contents. He was exercising his right. He had met Justin Ho a couple of times at the club a long time ago, but never at his warehouse. He agreed that Lautoka and Nadi each have over 20 or 30 barber shops. He denied going to Denarau specifically to drive the truck, knowing what was to be transported. He agreed that Michael was covering his head and that he was wearing a cap as he approached the CCTV camera just after they had parked the truck at Motorex. He denied that Louie had followed the truck and that he knew where he was going. He agreed that Louie paid $200 only to drive barely four kilometres. Under cross-examination by Mr Heritage, Aporosa agreed that driving offences are minor offences, but he was a habitual offender for driving, and that’s why he was deported.
     

DW5 - Jale Aukerea (Jale)

221. Jale was born in Levuka and raised in Australia. He returned to Fiji in 2022 to operate his three businesses: the shop, the kava bar, and the restaurant, incorporated under Granville Investments Proprietary Limited. About 10 to 12 people worked under him. He used to buy 20 to 40 kgs of kava a week from Cakaudrove in Vanua Levu to be packed and sold at ‘Kava Kings’. He earned a net profit of $3,000 a week from all three businesses.
     
222. He employed Sakiusa, his cousin, who runs a construction company which he helped expand. Sakiusa was on standby for his maintenance work at Kava Kings whenever his service was required. He met IR a couple of times when he came to Kava Kings to meet Sakiusa. He never downloaded an app onto Sakiusa’s phone. On the evening of 29 December 2023, he was home with his family, celebrating his sister-in-law's birthday. On that day, he never dropped Sakiusa at the Coffee Hub. He managed to find a house at Maqalevu through a friend to expand Sakiusa’s company. He paid $2500 bond on behalf of Sakiusa, who had given his money. He never gave Sakiusa $3,000 to purchase a manual gear van.
     
223. On 16 January 2024, he went to Savusavu with his family to attend a ceremony at his brother’s place. During a phone conversation, Justin Ho became aware of his presence in Savusavu and invited him to join them in going to Taveuni. He accepted Justin Ho’s invitation because he could utilise the money he had to buy Kava. Having sent the family back home, he decided to join Justin Ho. Justin Ho and Louie picked him up from Savusavu. Justin Ho made all the arrangements with a fiber boat. On the way, he learnt about Justin Ho’s intention to flee to Wallis in Futuna. He only had a bit over $2,000 and his ID card.
     
224. In his caution interview, Jale made admissions and provided explanations of receiving threatening messages on his phone app from an Australian cartel demanding AUD 50,000 that he owed them. He also stated that he was threatening Justin Ho and Louiewhich was not true. He made up those false statements on the instructions of Justin Ho, who said that he would help get him out of trouble, as he (Jale) was already implicated in Legalega drugs. He now regrets believing Justin Ho, whom he described as a ‘con man’.
     
225. Under cross-examination by Mr Nasa, Jale agreed that he used to have regular meetings with Sakiusa either at Kava Kings or Sakiusa’s house at Votualevu. He denied downloading the app called Threema on Sakiusa’s phone to communicate his instructions to Sakiusa and his drug syndicate. He met NM only once when he gave a lift to Sakiusa and NM.
     
226. Jale denied giving instructions to Sakiusa via the Threema app to organise the house at Legalega to store the drugs transported from Motorex. He admitted that he viewed the house at Maqalevu on 13 January 2024 and agreed to rent it because it stood on its own. He agreed that he paid $ 2500 bond in cash to get possession of that house. He agreed, having insisted on moving to that house immediately on the pretext that some workers were coming to stay there.
     
227. He denied instructing Sakiusa to transfer the drugs to Maqalevu House. He denied supplying ‘Kadavu Kava’ labels to conceal the identity of the contents of the packages. Although he used to buy kava from Cakaudrove, he suddenly decided to buy kava from Taveuni because there was a high demand for Taveuni kava. He denied that he had made a deliberate attempt to flee Fiji and enter Wallis and Futuna with Justin Ho and Louie when they got information that the house at Legalega had been raided. He agreed that, at the voir dire hearing, he told the Court that they were going to Cobia on a camping trip.
     
228. Under cross-examination by Mr Heritage, Jale denied having coerced or threatened either Justin Ho or Louie. He admitted to telling the police that he contacted Justin Ho after learning about the raid at Legalega and lying to Justin Ho about his (Justin Ho's) involvement in drugs. He agreed that he challenged the contents of his caution interview on the grounds of police ill-treatment. He did not inform his counsel that he had lied to the police during his caution interview. He also agreed that his friend Norman Fisher visited Kava Kings a couple of times. He confirmed that Viliame also worked for him in 2023. He admitted stating to police that whatever Justin Ho and Louie had done was not committed of their own free will. Under cross-examination by Mr Anthony, Jale said that Louie appeared timid and Justin Ho was speaking on Louie’s behalf when they met in Savuavu.
     

DW6 – Ratu Osea Levula (Osea)

229. Osea is married with five children. After finishing his school education, he pursued tertiary studies at FNU, where he started a Trade Diploma in Information Technology. He gave up his studies due to financial constraints. In 2016, he moved to Lautoka looking for employment to finance his studies. He managed to secure a contract job with Post Fiji, which was to expire in January 2024.
     
230. On 30 December 2023, he accidentally met his friend Sakiusa, whom he had met at FNU in 2018. Sakiusa offered him a job at his construction company, which was about to undertake house renovation in Legalega. Sakiusa sought his help for the first phase of the renovation to clear up the compound.
     
231. On 3 January 2024, he went to Legalega to take Sakiusa’s instructions on how to clean up the compound, which was covered with big para-grass, a pile of gravel and the cement blocks blocking the entrance. He started the work at Legalega on 4 January 2024 and continued on the 10^th and the 13^th January 2024. On the 10^th, he met Sakiusa’s friend Cathy, who had come to the house at Legalega. He gave his phone to Cathy on Sakiusa’s instructions and returned home.
     
232. On 13 January 2024, Sakiusa told him to fill the entrance with gravel. During the break, Sakiusa gave him a bicycle and then left. After finishing his work, he used that bicycle and went to a nearby shop to buy cigarettes. On his way back to the house, he saw KM and Sakiusa in a van exiting the driveway. Sakiusa asked him to pick up the parcel of tile glue, which they had forgotten on the driveway. He picked up the parcel and placed it in the van. The house was always locked. He was not allowed to be near the house.
     
233. Cathy and Sakiusa were not transparent in their dealings and kept everything secret from him. He never packed the parcels or guarded the house. Sakiusa may have lied, expecting a lesser sentence. He denied what Sakiusa, Cathy, KM, NM, and MY said in evidence. The Prosecution witnesses who gave evidence against him were either granted immunity or pleaded guilty to the charges against them.
     
234. On 14 January (Sunday), he received a message from Sakiusa on Messenger around 4 am, informing him that Cathy urgently needed the money he had deposited into his M-Paisa account. He caught a minibus and went to see Cathy at Legalega. When he arrived, he saw police vehicles around the house. He made a call and informed Sakiusa of the police presence. Sakiusa insisted that he go to Cathy and provide her with his M-Paisa credentials so she could extract the money from the phone. While walking towards Low-Cost Housing, he met Cathy at Koroitamana Junction. He dropped her off at Low-Cost and then returned home in Lautoka. He only learned about the drugs when he was arrested. He had no control over the drugs, nor did he intend to possess them. He never benefited from drugs. Sakiusa paid him $200 for the work he had done in the compound.
     
235. Under cross-examination by Mr Rabuku, Osea agreed that he had known KM, MY and IR from his days at FNU. He was never in Legalega on 30 December 2023. He never went inside the small house, nor could he see what was inside. He denied going to Cathy's home on 10 January 2024 to obtain a BroBro code. He denied packing the drugs with Cathy from 10-13 December 2023 and acted like a couple to carry out a secret operation on Sakiusa’s instructions. He denied having used the bicycle to guard the house where the drugs were being kept. He never saw NM at Legalega.
     

DW 7 - Viliame Colowaliku (Viliame)

236. Viliame was farming at his Village in Raralevu. He and attended a family function at Low-Cost Votualevu towards the middle of 2023, where he finally decided to settle down. He started two jobs, one at a nightclub and the other at the Kava Kings. He made friends with Sakiusa, Joe, MY and used to meet the guests who attended the nightclub, like Norman Fisher. Sakiusa was his neighbour who used to be a carpenter at Kava Kings.
     
237. On 28 December 2023, Sakiusa offered him a big construction job at a house in Legalega. He agreed to work with Sakiusa because he was looking for some cash to put his children back in school. The job involved renovating and moving some ‘stuff’ inside the house. He was offered $500.00.
     
238. When he reached the site, at Legalega, he saw the half-constructed house. Sakiusa borrowed his phone. They started putting up the walls to partition the house, and on 29 December 2023, Sakiusa called him in the evening and asked him to come back to complete the work. When he reached the house around 7 pm, he saw a truck parked at the site. It was a white truck with a blue tarpaulin. He was told to unload some building materials from the truck onto the ground and then to the house. Sakiusa said they contained tile glue hardener. The truck did not look suspicious to him. Sakiusa had brought another guy called Ozzy. Sakiusa went and brought MY and Joe to assist them in unloading. While unloading the last two loads from the ground to the house, one of the containers fell inside the house and cracked open. A crystal-like substance came out, which gave him an itchiness or burning sensation. He realised that it was not tile glue hardener.
     
239. He was scared. He asked if he could be given his phone back and his payment. He was waiting for his phone and wages, but Sakiusa didn't turn up. He continued to unload till early morning and, when he left the premises on the 30^th, he did not tell anyone or the police about what he saw. He thought plenty of people backed up that big amount. He did not want to risk his and his family's lives. He didn't know whom to trust and who to turn to. Because his phone was being held up, he thought Sakiusa was setting him up. Sakiusa never informed him that the containers contained meth. If he had known in the beginning that those containers had meth, he would never have approached that site.
     
240. Under cross-examination by Mr Nasa, Viliame agreed that, before him being charged in these proceedings, he had been charged with possession of methamphetamine in Nausori. He was first interviewed for this case on 17 and 18 January 2024, and then released. It was after being released that he was caught by police again and charged in Nausori on 20 January 2024, when the investigation in this case was still pending. He was further interviewed in this case on 7 February 2024 and charged on 8 February 2024. He denied that the methamphetamine found in his possession in Nausori was originated from this case (Legalega).
     
241. Viliame agreed that, in answering Q108 where he was asked ‘Did you any time know what you're lifting from the truck?’, he had told the police ‘Yes, at one time as we were offloading some of the containers in the truck fell and it opened an then when I looked down to pick it up, my hand fell itchy, so I picked up on one of the chunks and saw that it was crystal-like and that was when I knew that it was not glue hardener and was drugs that was when I started to feel afraid. He said what is reflected in this answer is not the truth.
     
242. The offloading started around 7 pm, and it took 4-5 hours for MY and IR to join him and Sakiusa. He could not recall if he immediately terminated his participation, even when he learnt they were handling drugs. It was nearly finished by that time. He agreed that MY and IR joined late, at around 3 a.m. and left early. He agreed that he stayed back in the house to put up floodlights as instructed by Sakiusa. He denied taking some consignment with him back to Nausori.
     
243. Under cross- examination by Mr Heritage, Viliame agreed that he had met Norman Fisher a couple of times whilst he was employed at Kava Kings owned by Jale and also at nightclubs with white people who would inquire about Justin Ho. Norman Fisher would sometimes offer jobs to unload some stuff for him.
     
244. Under cross-examination by Mr Wainiqolo, Viliame agreed that Sakiusa took quick decision to recruit him without consulting anybody because he was running his own construction work.
     

Part VI

Analysis/Evaluation

245. There is no dispute that police raids took place at Voivoi Settlement in Legalega on 14 January 2024 and subsequently at Maqalevu on 20 January 2024, during which a consignment of 1128 containers of white crystals were seized. It is also not disputed that the white crystals were methamphetamine, a scheduled illicit drug under the IDCA, weighing 4.15 tonnes. The report submitted by Miliana, the Principal Scientific Officer (PSO), confirms these facts. The evidence provided by the police officers and the PSO to establish the chain of custody was not challenged. It is also uncontested that the drugs found in Legalega and Maqalevu were brought into Fiji on ‘Mobby II’ on 23 December 2023. None of the accused claimed that they had lawful authority to import or possess methamphetamine.
     
246. The Prosecution’s case is that the methamphetamine consignment was brought or caused to be brought from overseas into Fiji (Fantasy Island) jointly by the 1^st and 2^nd Accused, then transferred to the David Marine Repairers in Denarau, owned by the 2^nd Accused; It was subsequently moved by the 1^st and 3^rd Accused to the warehouse in Denarau, controlled by the 1^st Accused, and then by the 3^rd and 4^th Accused to Motorex at Nadi Back Road. The 5^th and 6^th Accused, along with another, then transferred it to the tin house at Legalega, where 1128 containers were jointly possessed by 5^th, 6^th, 7^th, 8^th, and 9^th Accused and 331 containers were transferred to the house at Maqalevu, where 5^th and 6^th Accused were in joint possession.
     
247. Since no formal admissions were recorded, I intend to examine the evidence and find facts on the basis that the Prosecution has to prove all the element of each offence beyond a reasonable doubt. The first phase of the drug movement concerns the importation.
     

Importation allegation against the 1^st and the 2^nd Accused (Count-1)

248. On Count one, the 1^st and 2^nd Accused are jointly charged with Unlawful Importation of Illicit Drugs, contrary to Section 4 (1) of the Illicit Drugs Control Act 2004. Since importation is a continuing process that includes any stage thereof until the drugs reach the intended recipient, it is sufficient for the Prosecution to prove that the 1^st and the 2^nd Accused took some part in facilitating the movement of drugs from overseas into Fiji until they reached the final recipient. The critical question, therefore, is whether the Prosecution proved beyond a reasonable doubt that the 1^st and the 2^nd Accused were jointly responsible for the act of importation alleged in Count 1.
     
249. To prove the charge against the 2^nd Accused (David), the Prosecution rely on the undisputed evidence of David Wright (PW1), Dina (PW2), Apenai (PW3), and David’s admissions both in his caution statement and his evidence. David admitted that in November 2023, Sam Amine informed him about a consignment of drugs that was expected to arrive in Fiji. He agreed to facilitate the shipment for which he received an advance of $30,000. He expected $2 million, which was promised upon completion of the job. David admitted that he communicated on the app called Threema ^[34]about the drugs being brought into the country. He admitted that he arranged Mobby-II and went to the deep sea twice in search of the yacht carrying the drugs, whose coordinates he had received on the app. Since the first two attempts to locate the yacht were unsuccessful, he admitted arranging the third trip in which Mobby-II met the superyacht carrying the drugs on the high seas. The consignment was offloaded to Mobby-II, which conveyed it to the Fiji jurisdiction and offloaded it at Fantasy Island.
     
250. David was not on Mobby-II on the third voyage and certainly he did not physically bring the drugs into Fiji. However, he admitted in his evidence and caution statement that he facilitated the drugs being brought to Fiji and transferred and stored at David Marine Repairers owned by him. The 2^nd Accused actively participated in the crucial stage of the continuing process of bringing the drugs from overseas to Fiji. I accept David’s admissions made against his interest, supported by other witnesses, to be the truth. All the elements of Unlawful Importation of Illicit Drugs are satisfied.
     
251. David raised the defence of duress in the process of cross-examination, produced evidence to that effect under oath and through his witness. Certainly, he raised this defence not only for the count of importation but also possession of illicit drugs, with which he is charged on Count 2. Therefore, it is convenient for me to deal with this defence at the end when making findings in respect of the other accused who raised the same defence.
     

Importation allegation against the 1^st Accused (Count-1)

252. There is no direct evidence to implicate the 1^st Accused (Justin Ho) in the importation offence. The Prosecution rely on circumstantial evidence produced through Apenai (PW3), LV (PW4), David (2^nd Accused) and Justin Ho’s admissions in his caution statement. Since LV and David are alleged accomplices vis-à-vis Justin Ho, the Court must exercise greater caution in relying on their evidence, given their natural tendency to distance themselves from the offence by blaming others. Bearing that in mind, I proceed to analyse their evidence.
     
253. According to Apenai, after the second unsuccessful trip, he and David went to David Marine Repairs. Justin Ho arrived there in a car with a European man. David, Justin Ho and the European man had a meeting for about two hours. The next day, when they were waiting at Vuda Marina for the third trip, the same European man came and boarded Mobby-II, which brought the drugs into Fiji. Apenai further said that while the second load of containers was being offloaded at David Marine Repairs, Justin Ho arrived at the car park with Louie and had a conversation with David. After this conversation, David told him to wait for Justin Ho's vehicle to pick up some of those containers. He then saw Louie driving a white Voxy into the car park with another iTaukei man. They loaded the containers into the Voxy and took them inside David Marine Repairs.
     
254. Apenai’s evidence corroborates that of David. David testified that after the unsuccessful second trip, Justin Ho kept calling him, and when he was at the workshop, Justin Ho arrived in a Hyundai with a short European man whom Justin Ho introduced as his Russian friend. The conversation that followed led to the successful voyage that brought the drugs into Fiji. David further stated that when the containers arrived at his office in Denarau, Justin Ho came and placed a ‘Fiji Times’ on the bales and took photographs. He handed Justin Ho the key to the office and departed.
     
255. Evidence from LV and Louie about what occurred after unloading the drugs at David Marine Repairers aligns with David’s evidence implicating Justin Ho. Louie’s evidence was that, on 23 December 2023, Justin Ho told him to go to Bula Bus yard (where David Marine Repairs is) with LV to move the containers into the office. LV explained that after they moved the containers into the David Marine Repairs, Louie locked the office and went to Justin Ho’s warehouse. Then, Louie and Justin Ho left the warehouse. LV also said that on 24 December 2023, when Justin Ho and Louie returned, Justin Ho instructed Louie to take the stock.
     
256. Apart from the evidence of David being corroborated by Apenai, LV and Louie, David further implicated Justin Ho when he said that he received $30,000 from Justin Ho before the shipment; Sam Amine advised him to contact Justin Ho when he (Sam) was not around; Justin Ho handed him a Mobbyle phone with an app that Sam Amine and Justin Ho were to communicate with him, using the code names.
     
257. Although David is an accomplice and a co-accused vis-à-vis Justin Ho, his evidence implicating Justin Ho was corroborated by Apenai, LV and Louie, making David a reliable witness so far as Justin Ho’s involvement in drugs is concerned. Furthermore, David’s evidence implicating Justin Ho is largely consistent with his caution statement made against his interest^[35].
     
258. It is well-established that, in a joint trial, a statement made in a caution interview by one accused cannot be used against another^[36]. However, David’s caution statement can be referenced to test his credibility in a context where Justin Ho’s Counsel suggested that David’s evidence was inconsistent with his caution statement. David stated in his caution statement that Justin Ho gave the coordinates, whereas in his testimony, David said Sam Amine gave them. Nonetheless, this inconsistency is not significant because David had received the coordinates on the app that was intended to communicate exclusively with Sam Amine and Justin Ho.
     
259. It is trite law that if an accused, while testifying on oath at the trial, implicates another accused, that will be evidence against the other accused^[37]. It may be in the form of an admission that he committed the crime along with the other accused, or it may be in the form of a ‘cut-throat defence’ (R v Turner & [1979] 70 Cr App R 256; R v Varley [1982] Cr App R 242; Bannon v Queen [1995]185 CLR1 where he implicates the other accused in the crime exonerating himself^[38].
     
260. This is a case where one accused implicates another in the form of an admission that he committed the crime along with other accused and not in the form of a ‘cut-throat defence’. David is admitting to the offence while implicating Justin Ho only to advance his defence. Therefore, the strict application of the common law rule about the accomplice warning may not be strictly warranted because David lacks potential self-interest in shifting the blame.
     
261. No doubt, David’s evidence must be acted upon cautiously, given his perceived tendency to implicate his co-accused Justin Ho. However, in the circumstances of this case, David’s evidence can be acted upon so far as his evidence implicating Justin Ho is concerned, not only because it was corroborated by Apenai, Louie and LV, but also because it was consistent with Justin Ho’s caution statement given against his interest.
     
262. In his caution statement Justin Ho admitted coming with a white man to meet David concerning the drugs in this case and giving David $30,000, which he had received from Sam Amine. This talk was about something coming from overseas. I accept that David told the truth in Court when he implicated Justin Ho. The only plausible inference that can be drawn from the evidence that was discussed above is that Justin Ho acted jointly with David to facilitate the importation of 4.15 tonnes of methamphetamine into Fiji.
     

Joint Procession allegation against 1^st 2^nd and 3^rd Accused on Count 2

263. Justin Ho, David and Louie are charged on count 2 with joint possession of illicit drugs contrary to Section 5(a) of the IDCA. This charge concerns the storage of the methamphetamine consignment at the David Marine Repairs, once it was unloaded from the hiab truck that transported it from Fantasy Island on 23 December 2023. To prove this charge, the Prosecution rely on the evidence of LV, admissions made by Louie and David in their caution statements, and David’s evidence under oath.
     
264. There is no dispute that David was renting the David Marine Repairs and the room adjacent to it from Tasivindra (PW5). LV’s evidence revealed that two days before Christmas, Louie accompanied LV to David Marine's Repairs, where the bales were sitting. Louie opened the room and told LV to move the containers inside the office. LV saw white crystals in one of the containers, which Louie described as meth. Louie then locked the office, and they both returned to Justin Ho’s warehouse. Louie and Justin Ho left the warehouse shortly after. On 24 December 2023, when Justin Ho and Louie returned, Justin Ho instructed Louie to take stock of the containers. They went to David Marine Repairs’ office and took the stock.
     
265. David, in his evidence, admitted that he caused the consignment of drugs to be transported to his office at Denarau, where they were stored. Justin Ho came to the workshop when the drugs were being unloaded. Justin Ho photographed the bales of drugs. David gave Justin Ho the key to the office and left.
     
266. Louie admitted that on 23 December 2023, Justin Ho instructed him to go to the Bula Bus yard with LV to move the containers into the David Marine Repairs. When they went to the Bula Bus yard with LV, the containers were sitting beside David Marine's Repairs Office. By looking at the substance as it came out from some of the containers, he realised it was drugs. They moved the containers into the empty office beside David Marine's Repairs.
     
267. LV, who received immunity from the State, is an alleged accomplice vis-à-vis David, Louie and Justin Ho. I was cautious and warned myself of the danger in relying upon LV’s evidence without corroboration. David, LV and Louie corroborated each other in their evidence regarding the storage of drugs. LV’s evidence was not impugned in cross-examination. I accept that LV told the truth in Court.
     
268. As the owner, David had the keys to David Marine Repairs and thus controlled it with the knowledge that it stored illicit drugs. Louie once held the keys to the storage and had control over it with the same knowledge. Justin Ho received the keys from David, meaning Justin Ho also controlled the storage. It was on Justin Ho's instructions that Louie went to open the office to store the containers there.
     
269. These circumstances justify the application of the factual presumption in Section 32 of the IDCA in respect of David Marine Repairs office that was in joint control of Justin Ho, Louie, and David. None of them raised that they did not have knowledge about illicit drugs. They in fact knew that the substances in the containers was methamphetamine. Justin Ho, Louie, and David were acting together; each intending to possess methamphetamine. Joint possession of illicit drugs, contrary to Section 5(a) of the IDCA, is established against the 1^st, 2^nd, and 3^rd Accused.
     

Joint Possession allegation against the 1^st and the 3^rd Accused (Counts 3 and 4)

270. Count 3 concerns the transfer of over 4.15 tonnes of methamphetamine from the David Marine Repairs to the 2^nd warehouse, next to the warehouse in which Justin Ho lived and operated his Subzero car wash. Count 4 concerns the storage of the said consignment in the said warehouse. The charge alleges that Justin Ho and Louie acted jointly to transfer the drugs and thus were in joint possession of 4.15 tonnes of methamphetamine.
     
271. LV said that a truck arrived at David Marine Repairs, where they loaded the nine bags into the truck. The truck was driven to the car wash warehouse. They unloaded the bags and stored them in the 2^nd warehouse next to Justin Ho’s. The next day, Louie made ten trips to the David Marine Repairs in a Voxy, bringing the remaining seven bales to the 2^nd warehouse. Louie admits both in his caution statement and evidence that he and LV transferred the consignment of drugs from the David Marine Repairs Office to the said 2^nd warehouse on Justin Ho’s instructions. Louie knew the bales contained methamphetamine.
     
272. In his caution interview, Justin Ho denied that the 2^nd warehouse was in his control. It is the evidence of David that Justin Ho controlled the 2^nd warehouse on behalf of its owner, Sam Amine. LV, Louie and NR confirmed that Justin Ho held the keys to the 2^nd warehouse. Justin Ho, in his caution interview, admits that he drove the truck into the Subzero yard and loaded the containers stored in this warehouse into the truck with Louie and LV. It is on Justin Ho’s instructions that Aporosa transferred the consignment out of this warehouse. Aporosa said that Justin Ho gave the key to the truck to be driven to Motorex. Justin Ho lived in the apartment next to the 2^nd warehouse and had access and control over it when Methamphetamine was stored there. Justin Ho was aware that the containers contained illicit drugs. These circumstances warrant the application of the factual presumption in Section 32 of the IDCA to find that Justin Ho was in possession of metamphetamine that was stored in the wearhouse that was in his control.
     
273. Evidence of LV and Louie’s admission proved that Louie actively participated in storing the consignment in the 2^nd warehouse in concert with Justin Ho. Each had the intention to possess methamphetamine. Joint possession of illicit drugs contrary to Section 5(a) of the IDCA is made out against the 1^st and the 3^rd Accused as charged in counts 3 and 4.
     

Joint Possession allegation against the 3^rd and the 4^th Accused (Counts 5 and 6)

274. Counts 5 and 6 concern the transfer and transport of the entire consignment of methamphetamine from Subzero warehouse yard in Denarau to Motorex at Nadi Back Road, where it was temporarily kept. LV’s undisputed evidence is that Justin Ho drove the truck into the Subzero warehouse yard, where he, Louie and Justin Ho loaded all the containers into the truck and that Aporosa (4^th Accused) drove the truck from Subzero warehouse yard to Motorex while being escorted by Louie and LV in a separate vehicle.
     
275. It is not in dispute that Louie knew that the truck was laden with a consignment of methamphetamine. Although Louie did not have physical custody of the drugs whilst the truck was in transit, he no doubt had control over the drugs^[39]. He was assigned to ensure that the truck reached its intended destination. He escorted the truck to Motorex in a separate vehicle. He took possession of the key to the truck from Aporosa at Motorex and kept it until it was handed over to NR on the next day. Louie intended to exercise control over the drugs in transit and whilst the truck was being parked at Motorex. It is established that Louie possessed the drugs as alleged in counts 5 and 6.
     
276. The question is whether Aporosa was in joint possession of the drugs with Louie when he drove the truck, as alleged in count 5 and while it was parked at Motorex, as alleged in count 6. Confirming LV’s evidence, Aporosa, in his evidence, finally admitted that he drove the truck from Subzero warehouse yard to Motorex. Given this admission, I accept that Aporosa was in control of the truck in transit until it reached Motorex. Because the truck, whilst in transit, was in Aporosa’s control, it shall be presumed under Section 32 of the IDCA that Aporosa was in possession of methamphetamine until the contrary is ‘proved’.
     
277. It is now settled that Section 32 of the IDCA, despite the word ‘prove’ being mentioned in the section, does not shift the burden of ‘proof’ to the defence, but shifts only an evidential burden. In State v Abourizk and another^[42], I read the words ‘until the contrary is proved’ in the section to mean ‘unless sufficient evidence is introduced to the contrary’ to bring the section in conformity with the presumption of innocence entrenched in the Bill of Rights Chapter of the Constitution. The Court of Appeal upheld this interpretation in Kritesh Kumar v State^[43]
     
278. An evidential burden can be discharged by raising the defence as a live issue at trial for the court to consider, either by introducing some evidence to that effect or pointing to evidence that suggests a reasonable possibility of the defence. Aporosa raised the live issue in cross-examination and while giving evidence at the trial. He said that he was not aware that the truck he drove had methamphetamine, thus discharging the evidential burden cast upon him. Therefore, the Prosecution must disprove the defence by proving beyond a reasonable doubt that Aporosa knew that he was driving illicit drugs. The Prosecution doesn't need to prove that Aporosa knew the true nature of the particular drug; in other words, it was methamphetamine, but some kind of illicit drug^[44]. Whether Aporosa had that knowledge is a question of fact to be decided by the Court after drawing all the plausible inferences from the facts proved in evidence. The quantity may be relevant to the issue of knowledge^[45].
     
279. Aporosa said that he travelled with Michael, his brother-in-law, all the way from Saweni to Denarau to get a haircut at the barbershop beside Subzero Car Wash. When he was waiting there after the haircut, he was approached by Justin Ho, whom he had met twice before, asking if he could drive manual gear vehicles. When he said ‘yes,’ he was asked to drive the truck parked in the yard to Motorex. The truck was fully covered and sealed, and he did not check what was inside. Everything happened very quickly, and he noticed nothing suspicious.
     
280. First and foremost, I am not convinced that Aporosa told the truth in court. Aporosa, a bald gentleman, did not explain what was special about getting a haircut at Justin Ho’s ‘True-Cuts’ in Denarau. It is highly unlikely that he travelled all the way from Saweni with his brother-in-law to get a haircut in Denarau, passing many barber shops in Lautoka and Nadi. He said in EIC that he remained silent when he was arrested and interviewed by the police because he did not know why he was being detained. However, under cross-examination, Aporosa agreed that he answered questions and remained silent only when asked about driving the truck. Upon being shown his caution statement, Aporosa admitted that the allegation against him was explained at Q14 and that he understood what he was being questioned about. Aporosa said he had never been to Motorex, and it was Louie who guided him. However, the CCTV footage showed that the truck was in the lead while Louie was following him. This was confirmed by LV.
     
281. Having discredited Aporosa, I would draw the following inferences to conclude that Aporosa knew what he was driving. There is no dispute that the back of the truck was fully covered (with a tarpaulin) and sealed. LV stated that Aporosa came from Justin Ho’s barber shop when he was called. Aporosa admitted that he had been waiting at the barber shop for half an hour. The barber shop is adjacent to the warehouse where the drugs had been stored. It is unlikely that Aporosa did not see what was being loaded into the truck.
     
282. In a context where Justin Ho told him that the truck was loaded with furniture, Aporosa, as a sensible driver having a licence for heavy vehicle driving^[46], should have asked himself why the truck was being completely covered and sealed if it was to transport furniture. If Aporosa says he did not know what was in the truck, he was utterly reckless. An irresistible inference that should be drawn from his utter recklessness is that he knew what was in the truck. There are circumstances in which the requisite knowledge may be imputed. Knowledge includes deliberately shutting one’s eyes to the truth^[47].
     
283. In Abourizk v State^[48], the Supreme Court considered whether recklessness also encompasses the mens rea of possession of illicit drugs and observed as follows:
     

[27] In the interests of completeness, I should add that Prematilaka JA spent some time discussing the extent to which issues relating to intention or recklessness arise in cases of this kind. I put the question of intention to one side as I do not think it adds anything to the debate, but I can see how in one sense recklessness might be relevant. Knowledge of some particular fact has sometimes been equated to turning a blind eye to it. In other words, if you put your head in the sand to ignore something which would otherwise be staring you in the face, that might be capable of supporting the conclusion that you did indeed know of the matter in question. The alternative view is that closing your eyes to the obvious is simply a matter of evidence, and nothing short of actual knowledge will do. Again, that is not something which can affect the outcome of this appeal. The prosecution did not ask the judge to convict the petitioners on that basis. [Emphasis added]

284. What Aporosa did in this case was bury his head in the sand to ignore something which would otherwise be staring in his face.
     
285. When the reason for the arrest was read to him at Q14 in the interview, Aporosa admitted that he knew the purpose of the questioning. After answering some questions, he remained silent when asked about driving the truck. Although it was his right to stay silent, no sensible person would choose to use this right to hide their defence after being confronted with a serious allegation that he drove a truck loaded with 4.5 tonnes of illicit drugs. I am sure Aporosa did not raise his defence at the interview because he knew what was in the truck.
     
286. Finally, after parking the truck at the back of Motorex, Aporosa walked backwards and suspiciously approached the CCTV camera, wearing a cap, with his brother-in-law, who was covering his face with a cloth. Their attempt to hide their faces from the camera suggests they knew what they were transporting. Aporosa was paid $200 to drive a truck for just a few kilometres to receive an additional benefit. No doubt, Aporosa handled a large quantity of illicit drugs. I am sure Aporosa was aware of what he was driving. The Prosecution negated the defence and rebutted the Section 32 presumption to prove count 5 beyond a reasonable doubt.
     
287. However, there is no evidence that Aporosa had any control over the truck and the drugs after he had given the key to the truck to Louie. It cannot be said that Aporosa was in joint possession of the illicit drugs with Louie whilst the truck was being parked overnight at Motorex. Therefore, Aporosa could not be found guilty on count 6.
     

Joint Possession allegation against the 6^th, 7^th and 9^th Accused on Counts 8 and Joint Possession allegation against the 6^th Accused on Count 9

288. Count 8 alleges that Jale, Sakiusa, Osea, Cathy and Viliame, between 29 December 2023 and 14 January 2024, at Voivoi, Legalega, unlawfully possessed more than 4.15 tonnes of methamphetamine. Count 9 alleges that, during the same period, Jale, Sakiusa and another jointly possessed 1.05 tonnes of methamphetamine by transporting from Legalega to Maqalevu and storing at Maqalevu. The Prosecution rely on the evidence of Sakiusa, Cathy and Jale’s admissions in the caution statement to prove Count 8 against Jale. The Prosecution rely on the evidence of Sakiusa (PW17), Cathy (PW 16), MY (12), IR (11), and NM (PW10), to prove count 8 against Osea (7^th Accused) and Viliame (9^th Accused).
     
289. Jale’s defence at trial is a complete denial. Osea admits to handling one container and denies any knowledge that it contained illicit drugs and his intention to possess methamphetamine. Viliame admits to handling the containers and becoming aware of the contents to be illicit drugs in the process of unloading. But, he denies his intention to jointly possess methamphetamine with others.
     
290. Let me first analyse the evidence of Sakiusa and Cathy. Sakiusa and Cathy pleaded guilty to the charge and were convicted. They were on remand pending sentencing when they took the stand as witnesses for the Prosecution. It should be borne in mind that the fact that Sakiusa and Cathy are guilty should not infer that other ex-co-accused are also guilty. The evidence against each accused must be examined and evaluated separately to establish their guilt regarding each charge.
     
291. Because they are alleged to be accomplices, while remaining cautious about relying on their testimonies, I would, for valid reasons, differentiate them from other accomplices called by the Prosecution. They have already been convicted and are no longer co-accused in this case. Therefore, they have nothing to gain from fabricating evidence against others for personal benefit. They told the Court that they pleaded guilty because they knew they were guilty. Cathy confirmed that, at the time the plea was taken, she received no assurance from the Court that she would receive a lenient sentence. They may have anticipated a lenient sentence by admitting responsibility and showing remorse, but this is unlikely to cause them to fabricate evidence against other accomplices. Their admissions made in the Court are consistent with what they told the police in their caution statements, which this Court accepted as voluntary. Additionally, their testimonies are consistent in material respects with Jale’s caution statement admissions. Consequently, the Court should give greater weight to the testimonies of Sakiusa and Cathy.
     

The case against Jale (6^th Accused) on Counts 8 and 9

292. 292. Count 8 concerns the alleged joint possession of methamphetamine storage in the tin house at Legalega. There is no dispute that this house belonged to IR and was in Sakiusa’s control at the material time. It is also not disputed that at one time, the entire methamphetamine consignment was offloaded at and stored in this house, until a portion of which was moved to a house at Maqalevu on 13 January 2024, just before the raid.
     
293. Although the containers were not present when the CSI team arrived, and no photographs were tendered of this house with the containers, I have no reason to reject the evidence of the police officers who testified to the raid and movement of containers from the house at Legalega to Namaka Police Station, where the CSI team conducted the drug analysis. The police officers provided reasonable explanations as to why they had to move the drugs immediately to the police station.
     
294. Sakiusa implicated his cousin Jale in his testimony. Accordingly, it was on Jale’s instructions that Sakiusa directed the truck carrying methamphetamine from Motorex to Legalega; Jale had installed a messaging app on Sakiusa’s phone to receive messages. Following Jale’s instructions, Sakiusa met NR at the Coffee Hub at Motorex, from where NR drove the truck to the house at Legalega. Sakiusa received a message via the app, which Jale had provided, instructing him to check on the house at Legalega after the methamphetamine was stored. A portion of the consignment was moved to Maqalevu on Jale’s instructions on 13 January 2024 using the van Jale financed to buy. If accepted, Sakiusa’s evidence is sufficient to establish that Jale was in joint control of methamphetamine storage in Legalega.
     
295. Sakiusa moved some of the containers with KM (PW13) to Maqalevu following Jale’s instructions; Jale had provided $3,000.00 to purchase the Toyota Light-Ace van for drug transportation; Jale held control over the Toyota Light-Ace, although it was registered in Sakiusa’s name. Jale also gave Sakiusa the key to the house at Maqalevu to store the drugs; additionally, Jale paid Sakiusa to execute the instructions sent via the app. KM confirmed Sakiusa's account and stated that Jale passed the house key to Sakiusa so he could open the door at Maqalevu before unloading the packages. If this evidence is accepted, it is sufficient to establish that Jale had joint control over the methamphetamine storage in Maqalevu.
     
296. In his caution statement, Jale admitted that he arranged the house at Legalega through Sakiusa (Q153) with whom he communicated via an app. He acknowledged receiving a message on the app indicating that the package was secured at Legalega, where it was stored for one and a half weeks (Q151, Q151, Q152, and Q154). He admitted that he gave instructions to find another house to relocate the packages, and that he found one in Maqalevu through Anel, for which he paid a $ 2500 bond (Q163, Q164, and Q173). He sent the location of the Maqalevu house to Sakiusa via the app; he moved immediately to the house without signing the rent agreement (Q182, Q184, and Q184); he provided $ 3,000 to purchase a van (Q174, Q174, and Q182) to transport the package. These admissions by Jale are consistent with the evidence of Vipul Sharma (PW14), Sonam Raj (PW15), Sakiusa, and KM.
     
297. Sakiusa’s evidence was not challenged by Jale’s Counsel. Jale is Sakiusa’s cousin and the owner of Kava Kings, where Sakiusa worked. Jale financed Sakiusa to start his construction company. Sakiusa had no reason to lie against his cousin. For all these reasons, I accept that Sakiusa told the truth in Court.
     
298. In his evidence, Jale's admissions relating to the house at Maqalevu were limited to finding a house through one of his friends and paying the $2500 bond for the same. Jale denied that he was in control of the house at Maqalevu or any involvement with the drugs stored therein. His position/explanation is that Sakiusa gave the money to rent the house to expand Sakiusa’s construction company. However, when Sakiusa took the stand, Jale’s Counsel never put Jale’s position to Sakiusa that the money belonged to Sakiusa. Furthermore, Jale’s evidence on this point is not consistant with his caution statement.
     
299. I accept Jale’s admissions and only the admissions, made both in his caution statement and his evidence, to be the truth for two reasons. Firstly, they were voluntary statements made against his interest. Secondly, they were corroborated by Sakiusa’s evidence and that of other Prosecution witnesses. I reject Jale’s denials and his alibi in his evidence, which are contradictory to what he said in his interview and what Sakiusa said in his evidence.
     
300. Jale appears to be mounting three defences in his caution interview. Firstly, he vaguely denied knowledge that the package contained illicit drugs (Q156), hinting that he received instructions to arrange houses and transport for building materials. However, at Q157 Jale stated that he realised about the drugs when some photographs were sent to him from the person in Australia to whom he owed $50,000. He later tried to disconnect those photographs from the packages he received (Q161).
     
301. Sakiusa worked at Kava Kings, owned by Jale, where packets of kava were sold. Sakiusa brought labels titled ‘Kadavu Kava’, which he and Cathy pasted on the packets containing both grog and methamphetamine, which the police later found in the house at Maqalevu. It can be inferred that those packets were repacked to be sold in the local market, disguised as kava at ‘Kava Kings’ owned by Jale.
     
302. Jale admitted in his caution interview that he went to an island off Taveuni with Justin Ho and Louie when he realised that the police had raided the houses at Legalega and Maqalevu. In his evidence at the voir dire hearing, Jale said that they went to Cobia Island on a camping trip. At the trial, the purpose of his trip was to buy kava at Taveuni. Jale failed to give a plausible explanation as to why he was on Cobia Island in the company of Justin Ho and Louie with $ 2000 odd cash and 22 cans of tuna in his possession. I am sure they were fleeing the Fiji Jurisdiction to avoid being arrested. Jale’s conduct surrounding the viewing of the house at Maqalevu also suggests that he knew the packages contained illicit drugs. He was looking for a stand-alone house, and when he found one, he rushed to occupy the house even before the rent agreement was done. On the same evening the drugs were transferred to this house. All this evidence points to the inevitable inference that Jale knew he was dealing with illicit drugs.
     
303. Secondly, Jale appeared to raise the defence of duress in his caution interview when he stated that his life was under threat if he did not carry out the orders that came on the app from an Australian cartel. He never supported this defence in his evidence and said that he lied to the police about those threats on Justin Ho’s instructions.
     
304. Thirdly, the alibi he raised is not supported, and it was proved to be concocted belatedly. Jale had never stated in his caution statement that he was at home attending a birthday party on the evening of 29 December 2023. If his alibi were true, he would have raised this with the police when he was questioned about the transfer of drugs to Legalega. The Prosecution dispoved the alibi and proved beyond a reasonable doubt that the 6^th Accused was jointly in possession of methamphetamine as charged in counts 8 and 9.
     

The case against Osea (7^th Accused) on Count 8

305. Osea was implicated by NM (PW10), KM (PW13), Cathy (PW16) and Sakiusa (PW17). NM is an alleged accomplice who has been granted immunity. According to NM, she had gone to the tin house at Legalega thrice, where the drugs were stored. She met Osea and Cathy, who were occupying this house. She saw Osea and Cathy packing the containers of methamphetamine and pasting the white stickers on them. When she was in Maqalevu with Sakiusa, Sakiusa received an early morning call from Osea to inform that the house at Legalega had been raided and they needed to leave the Maqalevu residence immediately.
     
306. The credibility of NM was challenged on three grounds, firstly, on the basis that she was an ‘immunity witness’, secondly, that in her statement to police, she did not tell that Osea was assisting Sakiusa in packing the containers, and thirdly, that NM could not have correctly identified a person because she was high on meth, ‘like stoned’. None of these challenges are tenable or strong enough to disbelieve NM in the light of the strong corroboration provided by other Prosecution witnesses.
     
307. KM, another immunity witness, saw Cathy and Osea when he arrived at Legalega on both trips to transport the drugs to Maqalevu. On the first trip, Osea was on a bicycle, on his way back from the shop. Before the containers were loaded into the Light-Ace van, Cathy pasted sticky tape on the van’s windows so that the packages could not be seen by anybody. Osea was standing beside the vehicle, and he later loaded only a few parcels, which Sakiusa had left forgotten.
     
308. Cathy’s evidence was that Osea operated under the ‘BroBro’ codename assigned in the circle of which she, Sakiusa and Osea were members. At Sakiusa's house, Osea wrapped the packages that contained both kava and methamphetamine. Osea was guarding the house, riding a bicycle around the neighbourhood during the drug transfer. Osea stayed in this house for three days with her. When the police raided the house, she escaped through the back door and met Osea.
     
309. Sakiusa said that he recruited Osea and Cathy to be deployed at Legalega. He confirmed that Osea knew that the containers had meth because he had told Osea about it. Osea admits that he was engaged in cleaning up the compound on January 4, 10, and 13, 2024. He admits meeting Cathy on the 10^th and giving her his phone on Sakiusa’s instructions. He admits to being on a bicycle at the driveway on January 13, 2024, and picking and placing a parcel in the van. He admits seeing the police presence at the house in Legalega and meeting Cathy early in the morning on 14 January 2024.
     
310. Osea’s position is that, even though he handled one container, he did not know that it contained methamphetamine because it was packed, and it had an adhesive tile glue label pasted on it. He said he only learned about the drugs when he was arrested. He maintained that he had no opportunity to observe what was going on inside the house because he was never allowed to go inside.
     
311. It is implausible that Osea knew nothing about the contents of the containers and what went on inside the house, having been there three days. He knew that Cathy and Sakiusa were doing something secret in their dealings. A large consignment of methamphetamine was stacked inside this small house when Osea was working there for three days. Even if Osea’s claim that he was never allowed inside the house was true, it is hardly believable that he knew nothing about the illicit drugs packed in the containers. Given the enormity of the methamphetamine consignment, there could be no mistake that Osea knew it was illicit drugs.
     
312. I accept the Prosecution’s evidence that Osea was operating under the BroBro codename, guarding the house, and he ran away when the police raided the house. I accept that Osea handled the containers with the full knowledge that they contained illicit drugs. Osea had control over the drugs, and he intended to possess them for his benefit. The Joint possession of methamphetamine as charged in count 8 is made out.
     

The case against Viliame (the 9^th Accused) on Count 8

313. Viliame was implicated by IR (PW11), MY (PW12) and Sakiusa (PW17). Viliame does not deny that he offloaded the containers from the truck and moved them into the house at Legalega. Sakiusa had told Viliame that they contained tile glue hardener. Sakiusa went and brought MY and Joe to assist them in unloading. The truck did not look suspicious to him. Viliame’s position is that while moving the last two loads from the ground to the house, one of the containers fell inside the house and cracked open. A crystal-like substance came out, which gave him an itchiness or burning sensation. He became aware that it was not the tile glue hardener. However, Viliame did not say that he became aware that it was some kind of illicit drug, not to mention methamphetamine.
     
314. Viliame’s Counsel appeared to cross-examine the Prosecution’s witnesses on the basis that Viliame did not know that the containers contained illicit drugs. Since Viliame, in his counsel’s cross-examination and his evidence, raised the issue of knowledge as to the true nature of the substance, the Prosecution must prove beyond a reasonable doubt that Viliame was aware that he was unloading illicit drugs and that he intended to possess them jointly with others.
     
315. Viliame was already moving the containers into the house when MY and IR arrived. Both MY and IR got to know the true contents when one of the containers cracked open and the white crystals fell on the floor. Sakiusa took 30 minutes to sweep the crystals off the floor. According to MY and IR, Sakiusa had confirmed to them that the white crystals were methamphetamine. According to Sakiusa, because he had told Viliame, Viliame also knew the containers contained methamphetamine. Certainly, Viliame handled a huge amount of drugs for a considerable time, more than two hours. The only inference that is available on the evidence is that Viliame handled the containers with the full knowledge that they contained illicit drugs.
     
316. In his evidence, Viliame said he tried to disassociate himself with any involvement in Legalega after realising the true nature of the contents. He maintained that the cracking happened when the last two loads were being moved into the house, and that once he became aware of the truth, he was scared and decided to leave the house. However, in his caution statement at Q108, he said: ‘[a]t one time, as we were offloading some of the containers in the truck, it fell and opened’. Viliame is not telling the truth when he said that he became aware of the drugs only at the last moment. He had known it was drugs during the offloading, when the truck was still there.
     
317. Once the unloading was over, NR had taken the truck away while the others were still moving the containers into the house. Even after Viliame had realised that they contained illicit drugs, he continued to deal with the containers till early morning. He remained in the house when everybody had left. He also fixed some floodlights around the house on Sakiusa’s request. It was never put to Sakiusa by his counsel that Viliame insisted on leaving the house anytime sooner, demanding his money and the phone. When Viliame left Legalega on 30 December, he did not tell anyone or the police about what he saw. His excuse that he was scared to go to the police is unfounded and untenable.
     
318. Viliame admitted that he was arrested and charged with possession of methamphetamine in Nausori on 20 January 2024, a few days after he was released from this case. NR’s evidence was that Sakiusa distributed the drugs to those who participated in the unloading. Prosecution argues that the methamphetamine found in his possession in the Nausori was brought from Legalega. Although Viliame denied that the methamphetamine was found in his possession it can be inferred, considering what NR said, that the drugs concerned in the Naousori charge originated from Legalega. From all these, the only inference that can be drawn is that Viliame intended to possess methamphetamine jointly with others. The joint possession of methamphetamine as charged in count 8 is made out against the 9^th Accused.
     

Justin Ho’s Application for Closed Court and his Defence

319. After the Prosecution’s case, the Court determined there was a case for Justin Ho to answer and explained his rights in defence. Mr. Iqbal Khan informed the Court that Justin Ho would give evidence and call two witnesses. The Court was adjourned for three days over the weekend allowing him to prepare for his defence. When the Court reconvened to hear his evidence, Justin Ho made an unexpected move. He requested a closed Court, stating that his life was at risk.
     
320. There was no evidence before the Court indicating that Justin Ho’s life was at risk if he testified in open court. He fought vigorously to secure bail to resume his business at Denarau even after he had disclosed the names of his alleged threateners to the police. He would not have fought for bail if he were under death threats. Closing the Court to public would be a serious matter, particularly if it involved denying the public a trial of national interest, unless the interests of justice otherwise required^[49]. The Court viewed Justin Ho’s request as a cheap tactic to support his defence that he committed the offences under duress. By making this request, Justin Ho appeared to be attempting to justify his decision to remain silent when a strong case against him requiring a plausible explanation for his conduct had been presented by the Prosecution. Justin Ho’s request for a closed court was refused.
     
321. When the request for a closed court was denied, Justin Ho wished to remain silent. That is his constitutional right, for which he is legally entitled and must not be held against him. However, I was a bit surprised when Mr. Iqbal Khan indicated that his client wished to remain silent. I asked if his client was properly advised on how the courts would approach mixed statements in the evidence evaluation process, reminding him of the well-known House of Lords decisions, Duncan, Sharp and Aziz.
     
322. In the leading case of Duncan^[50], Lord Lane CJ observed:
     

... where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again, where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.

323. This guidance has twice been approved by the House: Sharp^[51]; Aziz^[52]

... Specifically, it should not be possible for an accused, in a case where his conduct calls for an explanation, to advance a submission at the end of the prosecution case that the prosecution have not eliminated a possible innocent explanation. Such submissions should generally in practice receive short shrift.

324. The Court was adjourned for Mr. Khan to get further instructions and properly advise Justin Ho on the law. Having consulted his Counsel, Justin Ho maintained his position to remain silent.
     

The Defence of Duress

325. Justin Ho, David and Louie raised the defence of duress concerning all the charges brought against them. The law states that if a person commits an offence under duress, he/she should not be held liable for that offence. This is an appropriate stage for the Court to consider this defence and determine whether the Prosecution has proven the guilt of each of these three accused beyond a reasonable doubt. Let me analyse the evidence to see if their cases met the criteria required for the defence of duress as outlined in Section 40 of the Crimes Act.
     

Justin Ho’s Defence

326. Justin Ho, in his interview, while making partial admissions, raised duress as a defence in what is called a mixed statement. He refrained from giving evidence under oath to support his defence. In such a scenario, his admissions made against his interest would receive a greater weight whereas the excuses do not have the same weight as they remain out-of-court statements, not given under oath and not subjected to cross-examination. The incriminating parts of his statement are likely to be true (otherwise, why say them?) ^[53]
     
327. Justin Ho was interviewed from 25 to 28 January 2024. He remained silent until the 27^th. He eventually said he was forced to carry out orders against his will because of the constant threats to his life and his family’s life posed by Norman Fisher, Charles (Jale) and Edgarwhite, an Argentinian, to deal with drugs that belonged to them. His defence was not clearly articulated. Like his admissions, they were all over the place.
     
328. What I could gather from his statement is that Norman Fisher threatened him to drive the truck that was parked at (Navakai) True Mart to the Subzero yard; to load the containers stored in the warehouse into the truck, and to give the key to the truck to the driver whom he would send. Justin Ho stated that he had no option but to follow their orders because he feared for his life and that of his family. Having admitted that the money was found on him at the time of the arrest, Justin Ho explained that Norman Fisher gave the money to flee Fiji’s jurisdiction after the drug bust in Nadi.
     
329. The defence Justin Ho raised is not plausible for many reasons, which I list below. Even if it were accepted to be the truth, it does not meet the criteria required for the defence of duress outlined in Section 40 of the Crimes Act.
     
330. Firstly, Justin Ho did not state his defence to the police at the first available opportunity. While (after being cautioned upon his arrest in Cobia Island and at his interview), Justin Ho was entitled to exercise his right to remain silent, he was expected, from the perspective of a sensible person, to tell his side of the story as to why he was involved in the alleged offences and why he was in Cobia Island with Jale and Louie.
     
331. Secondly, Justin Ho was arrested along with Jale, one of the alleged threateners. Still, Justin Ho kept quiet and did not blame Jale for the so-called threats at the first available opportunity. He revealed his defence for the first time on the third day of the interview, apparently upon being instructed by his counsel, who had visited him at the police station.
     
332. Thirdly, given their physical characteristics, Justin Ho and Louie could have easily overpowered Jale and escaped without going to Cobia Island with Jale. The absence of a plausible explanation from any of the accused who were arrested in Cobia as to why they were there leads to the only reasonable inference that Justin Ho was fleeing Fiji’s jurisdiction with Louie and Jale after receiving information that the police had raided the two houses.
     
333. Fifthly, Justin Ho’s narrative given to the police in his defence remained an out-of-court statement not supported by evidence. The propositions put by his counsel to the Prosecution’s witnesses are not evidence. If what he said to the police were the truth, he could have supported it with evidence. Sixthly, it makes no sense that Justin Ho was arrested while fleeing with one of his alleged threatners (Jale) and that he was threatened to drive an empty truck to load the containers that were stored in the warehouse he was in control of.
     
334. Finally, Jale and Norman Fisher, under oath, denied having threatened Justin Ho. Jale said under oath that he never threatened Justin Ho. He further said that his statement to the police that he threatened Justin Ho was not true. Jale explained that he lied to police believing Justin Ho who had told him to concoct that story. I accept what Jale said under oath on this issue to be the truth and reject what he said in his caution statement.
     
335. The State, at the last moment, despite Mr Heritage’s objections, called Norman Fisher to rebut Justin Ho’s defence in advance, expecting that Justin Ho would give evidence to support his defence. However, Justin Ho elected to exercise his right to remain silent, leaving the Court with the only ‘evidence’ given by Norman Fisher on the issue of duress.
     
336. Norman Fisher vehemently denied Justin Ho’s claim that he had threatened and forced Justin Ho to participate in bringing in and moving the methamphetamine around Nadi. He also denied having threatened Justin Ho that he would kill Justin Ho and his loved ones if he (Justin Ho) failed to follow his instructions to deal with methamphetamine. Norman Fisher further emphasized that when Justin Ho was on bail, he never threatened Justin Ho or his family. Justin Ho told the police that Norman Fisher was a friend of his. Justin Ho was indeed the best man at Norman Fisher’s wedding. The question posed by Norman Fisher in Court: ‘why would he threaten someone who was the best man at his wedding?’ remains unanswered.
     
337. Norman Fisher said that he was visited by police on several occasions in January and February 2024 to verify Justin Ho’s claim that the drugs belonged to him. There is no evidence that Justin Ho had made any complaint against Norman Fisher for making death threats against him or his family until he raised his defence towards the tail end of his caution interview.
     
338. Norman Fisher denied going into hiding from 27 January 2024, as suggested by Justin Ho’s counsel. However, Fisher’s denial at first blush is not consistent with what ASP Simione stated in his evidence. Simione said that when Fisher became a person of interest, he instructed the narcotics team to check on Norman Fisher, but they failed to locate him. Simione had not personally checked on Fisher; he only relied on the report from the narcotics team, whom he discredited as being involved with drug dealers in Fiji. Therefore, the said apparent inconsistency does not adequately refute Fisher’s claim that he never went into hiding in January 2024. When the trial was in progress, Fisher’s statement had been recorded on the DPP’s instructions, apparently because Justin Ho was vigorously pursuing his claim against Fisher.
     
339. The photograph tendered by the Defence (DE1), allegedly captured by the CCTV cameras at True Mart car park, does not show that the person in that photograph was Norman Fisher, as suggested by Justin Ho’s counsel. Even if it were Norman Fisher, that photograph does not portray Norman Fisher threatening Justin Ho. It can be a friendly conversation with his friend. I accept Norman Fisher’s evidence that he never threatened Justin Ho and his family either before the offence or after the offence. There is no evidence to support the claim that Justin Ho committed the offences under duress.
     
340. However, I would not dismiss the possibility that Norman Fisher had some involvement with the drugs seized by the police. Although NR denied that Norman Fisher had been with him at the Coffee Hub when the key to the truck was handed over to him to drive the truck from Motorex to Legalega, I would accept Sakiusa’s evidence that Norman Fisher was there.
     
341. While accepting that NR told the truth in most of his evidence, because it was corroborated by Sakiusa and the police officers who raided the house at Legalega, and other reasons I shall record towards the end of this judgment, I have no reason to reject Sakiusa’s evidence on this point. NR, having been granted immunity, had a valid reason not to implicate Norman Fisher, his brother-in-law, who turned out to be a police informant, as suggested by Justin Ho’s counsel. However, the suggestion that Norman Fisher was involved in moving the methamphetamine in Fiji does not support Justin Ho’s claim that he committed the offences under duress.
     
342. Even if the Court were to accept Justin Ho’s version in his caution statement, it does not meet the criteria required for the defence of duress as outlined in Section 40 of the Crimes Act. There was no reasonable basis for Justin Ho to believe that the alleged threat to cause death or serious harm would be carried out immediately unless the offences were committed. Norman Fisher was not armed at the time the alleged threat was made. He had come alone to the True Mart car park. Justin Ho could have easily overpowered Norman Fisher, given Justin Ho’s strong build and physical characteristics. Being an influential figure, having close ties with the people in the caliber of Cabinet Ministers, had ample opportunity and ability to render the alleged threat ineffective by contacting the police.
     
343. There was no reasonable basis, supported by evidence, for Justin Ho to believe that his friend Norman Fisher was a dangerous man surrounded by boys connected to a mafia-type drug syndicate. There is no evidence that Norman Fisher or his boys were present when the drugs were being loaded into the truck. The explanations that he was scared and that he had trust issues with the police are unfounded. If Justin Ho was under constant death threats, he would never have fought so hard to get bail to go to Denarau to continue with his business.
     
344. I reject the version of the Defence that Justin Ho committed the offences under duress. The Prosecution rebutted the defence of duress and proved each charge against Justin Ho beyond a reasonable doubt.
     

David Heritage’s Defence

345. David also raised the defence of duress and stated that he committed the offences against his will because of the threats received from Justin Ho and his Russian friend. For the reasons I shall record, the defence David raised is not plausible, and it does not meet the criteria specified in Section 40 of the Crimes Act.
     
346. David was interviewed for four days, from January 25, 2024, where he made admissions from the beginning. But he never raised duress at any time until this defence was first raised at the trial in cross-examination and his evidence. While he was entitled to exercise his right to remain silent, he was expected, from the perspective of a reasonable person, to tell his side of the story to the police as to why he was involved in the alleged offences. His only explanation was that he did it for the greed for money. It is reasonable to assume that David did not raise duress because he committed the offence voluntarily, as he remorsefully admitted in his caution interview.
     
347. In November 2023, David had agreed with Sam Amine to facilitate the importation of methamphetamine into Fiji. According to this agreement, he had received $30,000 from Justin Ho, one week before the shipment, to carry out the job he had agreed to. He admitted receiving no threat whatsoever when he assumed the job and went twice to the sea on 21-22 December 2023 to catch the super yacht that finally brought the drugs into Fiji. Under these circumstances, David is not entitled to raise the defence of duress under Section 40 of the Crimes Act since he had voluntarily agreed with Justin Ho and Sam Amine to facilitate the importation of illicit drugs into Fiji.
     

Section 40(3) states:

This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out the conduct of the kind actually carried out.

348. David said under oath that after reaching the said agreement, he changed his mind and took every effort to disassociate himself from the offence, but was forced to facilitate the importation due to the threats he received from Justin Ho and his Russian friend. David never said this in his caution interview. He was trying to show that he went to the sea on the second trip against his will. To support this claim, he said he suppressed the correct coordinates from the captain. However, both Captain Tui and Apenai confirmed that they came back because the super yacht could not be reached or located. Captain Tui said they finally located the yacht about 80 miles away and David wanted to pursue, but he declined because the fuel was not enough to go that far. Although David had not gone on the third trip, he made all the arrangements to import the illicit drugs into Fiji and transport them to his office in Denarau.
     
349. David’s claim that he was threatened by the Russian man at the point of a gun is far from believable. His conduct after the alleged death threat was not consistent with that of a person who had received a death threat. Lorima (DW2), David’s old friend, who was called to support David’s story that David was threatened at the point of a gun, gave vague and inconsistent evidence. Lorima was not sure if the Russian man had used a gun on David. It was his guesswork. Lorima had not told the police or anybody about what he had allegedly seen until he came to give evidence in Court. He had seen a gun-like object being pointed at David when David was standing outside the vehicle, whereas David said he was threatened inside the car. I am not convinced that Lorima told the truth that David was threatened at the point of a gun-like object.
     
350. Had he been threatened with a gun, David had an ample opportunity to go to the police when the Russian man went to the sea to bring in the drugs. David had no reason to believe that this Russian man, whom he had met for the first time the day before, was connected to a Russian mafia gang or the murder of the Russian couple in Natadola. His belief was not based on reality but on movies and speculation. He had only believed what Justin Ho said of his European friend, whom he described as Russian.
     
351. There is no evidence that David had previous knowledge that NR had been threatened or beaten up by a Russian gang before he committed the offences. David was just trying to justify his defence and his failure to go to the police by using what NR said in his evidence to explain why he was reluctant to come to Court to give evidence.
     
352. David said he told everything to the police, except for the threatening part, because he couldn't trust the police. How come David, who had never interacted with the police before, would doubt the Fiji Police Force’s ability to protect informants and witnesses? I reject the version of the Defence that David committed the offences under duress. The Prosecution rebutted the defence of duress and proved each charge against him beyond a reasonable doubt.
     

Louie Logaivau’s Defence

353. Louie is the third person to raise the defence of duress in this trial. He claims that he committed the offences against his will due to the threats he received from Justin Ho. The defence Louie raised is not plausible for many reasons, which I would list below. It also does not meet the criteria specified in Section 40 of the Crimes Act.
     
354. Louie was interviewed over four days, starting from 25 January 2024. He remained silent for the first three days, and on the 28^th, he made voluntary admissions while raising his defence in what is called a mixed statement. In his caution statement, Louie said he was following the orders of Jale Aukerea and his associates, who had threatened him and his family with serious consequences if he failed to comply. He had never mentioned in his caution statement that Justin Ho threatened him. Instead, he provided answers to protect Justin Ho, who was his boss and close confidante in dealing with drugs at Subzero car wash. Louie took the stand after Justin Ho chose to remain silent. The Prosecution’s argument that Louie ambushed with a cut-throat defence against Justin Ho when Justin Ho had no chance to respond is not without merit, although Justin Ho also ambushed the Court with his U-turn when he changed his position from giving evidence.
     
355. Louie’s admission that he was paid $ 500 lump sum to carry out the transfer of drugs is inconsistent with his claim that he committed the offence under duress. Louie’s appearance, as captured by the CCTV camera at Motorex, does not suggest that he was acting under duress. He did not tell the police the dramatic fairy tale events that allegedly took place in front of the Subzero yard, nor about those that brought him to Cobia Island. It is reasonable to assume that they were concocted to buttress Louie’s defence.
     
356. In December 2023, LV had been staying at Subzero with Louie. If a group of boys had come to threaten Justin Ho and his staff, such an incident could not have happened without LV’s knowledge. Even if it happened when LV was out, Louie should have informed LV about it. However, LV knew nothing about such incidents and handled the drugs freely. It is implausible and illogical that LV had not received any death threats from anybody when he had equally contributed to all dealings with the drugs at Subzero and up to Motorex. LV confirmed that Louie was not under pressure or looking scared when loading, unloading, and stock-taking. This is confirmed by Louie’s appearance on the video.
     
357. There is no evidence that somebody was present with a lethal weapon to pose a real threat when loading, unloading, and stock-taking and transporting of the drugs occurred. Louie has not received any death threats directly from anybody. He only believed what Justin Ho had told him about the threats. Although Louie testified about what he learnt from NR about the threats and assaults he (NR) allegedly received from masked men, when NR took the stand, Louie’s counsel never put it to NR to get it verified if NR had relayed such an incident to Louie any time before the offence. Louie had no reasonable basis to believe, either viewed subjectively or objectively, that he or his sister would be killed if he did not commit the offences.
     
358. When he learned about the drugs and that Justin Ho was not a genuine businessman, he had ample opportunity to leave Subzero as LV did. Even if he had ever received such threats, Louie had ample opportunity to complain to the police without electing to commit the offences. Louie’s explanation that he was scared to go to the police because of the trust issues with Fiji Police Force is unfounded. Although some trust issues with the Fiji Police Narcotic Bureau came out in police evidence, there is no evidence to indicate how Louie knew about those issues before the commission of the offences.
     
359. I reject the version of the Defence that Louie committed the offences under duress. The Prosecution rebtted the defence and proved each charge against him beyond a reasonable doubt.
     

Allegation against Justin Ho and Jale Aukera on Possession of Proceeds of Crime (Counts 10 and 12)

360. The Counts 10 and 12 are laid in relation to the monies seized from Justin Ho and Jale Aukerea upon their arrest in Cobia Island off the coast of Taveuni on 23 January 2024. The question is whether the police had grounds to reasonably suspect that the monies seized from these accused persons were proceeds of crime.
     
361. Although Justin Ho had refused to sign the search list (PE15), it was not disputed that monies were seized from him. After the search, WPC Marama (PW28) assisted PC Alusio (PW29) in counting the money and preparing a search list for the property seized from Justin Ho. The total value of cash found on Justin Ho was FJD 21,691.60. PC Alusio tendered the search list and the currency notes (PE16) in evidence.
     
362. The officers suspected that the money was the proceeds of the drug trade. This suspicion was well-founded, based on information available to them that was never discredited. The circumstances under which the arrest was made justified the police in forming such a suspicion. Justin was arrested in Cobia, a no-man's land, after he had gone missing from Nadi shortly after the drug bust. No plausible explanation was given for his presence on the island and for carrying a large sum of money with him. WPC Marama said it was risky for Justin Ho to take such a large sum of money without depositing it in the bank, especially when he had a bank access card in his bag.
     
363. It was suggested that the money came from Justin Ho’s legitimate business. That suggestion was not supported by evidence to indicate that the money was obtained directly or indirectly from a legitimate enterprise. During the search, Justin Ho remained silent while PC Alusio was counting the money. He had plenty of opportunities to disclose the source of the money if it was legitimate. In his caution statement, Justin Ho claimed that the money was given to him by Norman Fisher. Norman Fisher, under oath, denied that claim. If Justin’s assertion that Jale was Norman Fisher's proxy is true, Norman Fisher would have given money directly to Jale and not Justin Ho.
     
364. Louie and LV confirmed that the Subzero car wash was shut down when the water busters were broken in early December 2023. The café was closed when Justin Ho’s business partners withdrew. According to David’s caution statement, the car wash was kept closed most of the time. The barber shop was not performing well. The cash $30,000 that was given to David had been received by Sam Amine. Justin Ho was spending generously on drinking, golfing, and clubbing as a ‘funny’ man.
     
365. Other evidence revealed that Justin Ho conducted only cash transactions outside the banking system. He did not have funds in his bank account when the Court required him to show money for his bail bond. He also did not pay FNPF contributions for his employees. He invited a Cabinet Minister to open his barbershop, from which even Louie believed that Justin was a genuine businessman. The only conclusion that can be drawn from these facts is that Justin was operating those businesses as a ‘front’ to disguise the illicit origins of the money, making it appear as if the funds came from legitimate business activities.
     
366. No evidence was produced to show that Justin Ho had no reasonable grounds for suspecting that the money referred to in the charge was derived or realised, directly or indirectly, from any unlawful activity. The charge of possession of proceeds of crime is established.
     
367. Jale was arrested in the same circumstances as Justin Ho in Cobia Island. He does not deny that $ 2000 odd money was seized from him. DC Fesaitu (PW30), who searched him, counted and exhibited it in Court.
     
368. Jale said under oath that he was running three businesses, making a profit of $ 3000 a week. He says that the money he had in his possession was to buy kava in Taveuni to be sold at his Kava Kings. In his caution statement, Jale had not told the police that he owned three businesses, and that the money was from his kava business. Jale’s evidence is not credible. There is ample evidence to suggest that Jale operated the kava bar as a front to sell methamphetamine in the local market.
     
369. Sakiusa was Jale’s cousin and close associate at Kava Kings, which sold grog for local consumers. Cathy and NM described how the kava and methamphetamine were packed together and affixed the ‘Kadavu Kava’ labels onto the packets. Jale had paid Sakiusa to conduct the clandestine business. He gave instructions to transport the drugs from Legalega to the house at Maqalevu, from where the assorted packets of kava and methamphetamine were seized. The officers’ suspicion that the money was the proceeds of the drug trade is well-founded and supported by information available to them. Jale failed to satisfy that he had no reasonable grounds to suspect that the money in question was derived, directly or indirectly, from any unlawful activity.
     

Part VII

Who is the mastermind and the local recipient of the methamphetamine consignment brought into Fiji?

370. There is no doubt that Sam Amine, based in Australia, with a foreign drug syndicate (Russian or Hispanic), orchestrated the shipment that delivered the consignment of methamphetamine into Fiji. David and Justin Ho played major roles in importing and storing the drugs in Denarau. However, there is no evidence of David’s participation in moving or storing the consignment after it was moved out of his office in Denarau.
     
371. Based on the information received, ASP Simione concluded that Justin Ho played the major role in the alleged drug activity. The evidence supports that Justin was the recipient and the mastermind behind the illicit drug activity in Fiji. He received money and wearhouse from Sam Amine. He paid David $30,000 and provided coordinates to facilitate importation. Besides playing a key role in importing, he took interest in storing, stocktaking, photographing, and transferring to various locations around Nadi.
     
372. It was suggested that Justin Ho’s role came to an end after the arrangement he made to transfer the consignment to Motorex and that he was never involved in Legalega and Maqalevu stores. The evidence suggests otherwise. Although Justin Ho did not come into direct physical contact with the drugs, there is ample evidence to suggest that he was in overall control of the drug activity. NR said that Justin Ho owned the drugs. It was Justin Ho who instructed NR to transport the drugs from Motorex to Legalega. It was revealed that NR had been a drug courier for Justin Ho even before he transported the drugs in this matter^[54]. This evidence is consistent with Louie’s evidence that NR used to visit Justin’s warehouse frequently and did jobs for Justin Ho. When the drugs could not be unloaded at Motorex, Louie returned to Justin Ho’s warehouse and accompanied NR and Sakiusa, on whose guidance the truck was later driven to the house at Legalega.
     
373. Apart from NR being an immunity witness, the credibility of NR’s evidence was challenged on the basis that he had never told the police (in his statement dated 26 January 2024) that Justin Ho owned the drugs. Even though Justin Ho’s name was not mentioned in his written statement, I am sure NR had mentioned Justin Ho’s name soon after his arrest, for this reason. Justin’s name was mentioned in the search warrant obtained on 13 January 2024 from Magistrate Ratakele as being the owner of the house at Legalega, which led to the raid. Although the house in fact belonged to IR, it was reasonable for NR to believe that the drugs belonged to Justin Ho because it was Justin Ho who had instructed NR to transport the drugs. The discovery of the drugs at Legalega proved that NR told the truth to the police on this point. Although Jale and Sakiusa played key roles in renting houses for storage, arranging transport and recruiting people, Justin Ho had been the controlling authority. This was confirmed further by his post-offence conduct. He attempted to flee the Fiji Jurisdiction with Louie and Jale. The large sum of cash found on Justin Ho suggests that he was the leader in the escape plan and the main beneficiary of the illicit drug activity in Fiji.
     

Conclusion

374. The Prosecution proved beyond a reasonable doubt that the 1^st and the 2^nd Accused jointly executed the master plan drawn by Sam Amine to bring the largest ever hard illicit drug consignment into Fiji. It was further proved that each accused at some stage encountered or was in control of the consignment with the intention to possess and knowledge that they were dealing with illicit drugs. The 6^th Accused played a major role in financing and facilitating the transfer, storing and processing, while the 5^th Accused played a medium role in recruiting, transferring and processing the drugs for local consumption. Others were small players drawn to the business due to poverty.
     
375. It was not crystal clear where this consignment originated and where it was heading. It can reasonably be inferred that it originated from a Latin American country and was heading to Australia or New Zealand where methamphetamine fetches a good price, while Fiji retains its position as the transit point. It was evident that a small quantity infiltrated the local market and was used by the intermediaries to drug the recruits to work as peddlers and couriers or mules. There is evidence suggesting an involvement of a foreign drug cartel comprising Russians, Latinos and Aussies working in collaboration with Fijian counterparts. However, there is no proof that a Russian mafia gang was involved. The Russian mafia narrative was brought into the centre stage by the accused to buttress their defence of duress.
     
376. The undetected importation of such a huge consignment of hard drugs into Fiji through sea routes proves how weak our border protection mechanism was. There was alarming evidence that some officers of the Narcotic Bureau of the Fiji Police Force, whose task was to free Fiji from the drug menace, were complicit with drug dealers. However, there is no plausible evidence that the accused in this case were deterred from reporting due to the trust issues with the Fiji Police Force. The successful raid, investigation and prosecution of this case proved that the Fijian law enforcement agencies, despite many challenges they face, are still capable of tackling the challenges posed by sophisticated drug cartels which were equipped with superyachts, satellite phones, encrypted messaging apps and the blessings of local politicians.
     
377. The Prosecution proved its case beyond a reasonable doubt. The following Orders are made accordingly:
     

The 1^st Accused is convicted on Counts 1, 2, 3, 4 and 10.

The 2^nd Accused is convicted on Counts I and 2.

The 3^rd Accused is convicted on Counts 2, 3, 4, 5 and 6, and acquitted on Count 11.

The 4^th Accused is convicted on Count 5 and acquitted on Count 6.

The 6^th Accused is convicted on Counts 8, 9, and 12.

The 7^th and the 9^th Accused are convicted on Count 8.

Aruna Aluthge

Judge

31 July 2025

At Lautoka

Baristers & Solicitors:
- Office of the Director of Public Prosecution for State
- Iqbal Khan & Associates for 1^st Accused
- Legal Aid Commission for 2^nd, 5^th, 8^th and 9^th Accused
- Millbrook Hills Law Partners for 3^rd Accused
- S. Nand Lawyers for the 4^th Accused
- Law Solutions for the 6^th Accused
- Law Naivalu for 7^th Accused

---

^[1] [2019] FJHC 91; HAC115.2018 (18 February 2019)
^[2] Paragraph [20] Abourizk v State [2022] FJSC 9; CAV 0013.2019 (28 April 2022)
^[3] State v Balaggan [2012] FJHC 1143; HAC049.11 (31 May 2012
^[4] State v Lata [2013] FJHC 136 (25 March 2013)
^[5] Sweet Parsley [1969] UKHL 1; [1970] AC 132.
^[6] Abourizk v State [2019] FJCA 98 (7 June 2019) Paragraphs [79 and (83)]
^[7] Lambert [2001] UKHL 37 ;[2002] 2AC545
^[8] [1969] 2 AC 256,
^[9] [2017] FJCA 56; AAU0037.2013 (26 May 2017)

^[10] Summing Up [2012] FJHC 1143; HAC049.11 (31 May 2012),
^[11] [2019] FJCA 98; AAU0054.2016 (7 June 2019)
^[12] [2022] FJSC 9; CAV 0013.2019 (28 April 2022)
^[13] AAU0092 of 2011: 12 December 2014 [2014] FJCA 216
^[14] [2019] FJCA 98; AAU0054.2016 (7 June 2019)
^[15] [2022] FJSC 9;CAV 0013.2019 (28 April 2022)
^[16] [2019] FJHC 80; HAC 115 of 2018 (18 February 2019)
^[17] [2023] FJHC 402; HAC126.2015 (16 June 2023 )
^[18] Abourizk v State [2024] FJCA 56; AAU0071.2023 (19 March 2024)
^[19] [1935] AC 462
^[20] [2019] FJCA 98; AAU0054.2016 (7 June 2019)]
^[21] Abourizk v State [2022] FJSC 9; CAV0013.2019 (28 April 2022)]
^[22] [2023] FJHC 402; HAC126.2015 (16 June 2023 )
^[23] [2023] FJHC 402; HAC126.2015 (16 June 2023 )
^[24] Paragraph [126] [2023] FJCA 125; AAU132.2018 (27 July 2023)
^[25] Paragraph [22] -Abourizk v State [2022] FJSC 9; CAV0013.2019 (28 April 2022)]
^[26] In Salmon v HM Advocate 1999JC 67,. Lord Justice General (Rodger) There may, for example, only be evidence of surprise on the part of the defendant on the discovery of the presence of the drug. Or there may only be the exculpatory part of a mixed statement which he gave to the police at some stage. Conversely, to rebut a persuasive burden, the defence must adduce some evidence to rebut (on the balance of probabilities) the presumption.
^[27] [1999] UKHL 43; [2000] 2 AC 326, 378–79 per Lord Hope; Abourizk v State [2022] FJSC 9; CAV0013.2019 (28 April 2022)]
^[28] AAU 0171of 2016
^[29] [2018] FJCA 146; AAU134.2014 (4 October 2018)
^[30] (unreported CAV 7 of 2005 delivered 19 October 2006)
^[31] [2019] FJCA 209; AAU58.2015 (3 October 2019)
^[32] [1995] 2All ER 602
^[33] [2017] FJCA 56; AAU0037.2013 (26 May 2017)
^[34] Use ‘Threema’ and protect your private conversations from data collection and surveillance. With Threema Private, you communicate securely and, if desired, anonymously – without providing a phone number or email address. Thanks to end-to-end encryption, chats, calls, and files remain truly confidential. https://threema.com/en
^[35] Lobban v R [1995] 2AllER 602 -A Judge in a criminal trial has no discretion to exclude the exculpatory part of a mixed statement containing admissions as well as an exculpatory explanation on which a defendant wished to rely, notwithstanding that the exculpatory material was prejudicial to a co-defendant
^[36] Baleilevuka v State [2019] FJHC 209 (3 October 2019) Para 37
^[37] Vide 29 supra
^[38] Vide 29 supra
^[39] According to Section 4 (a) of the Crimes Act, “possession", "be in possession of," or "have in possession" includes (a) not only having something in one’s own personal possession⁴⁰ but also knowingly having anything in the actual possession or custody of another person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person⁴¹.
^[42] HAC 126 of 2015
^[43] Paragraph [126] [2023] FJCA 125; AAU132.2018 (27 July 2023)
^[44] Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and R v Boyesen [1982] AC 768; Abourizk v State
^[45] Blackstone in Criminal Practice (2019) 27-67 p 2929
^[46] Aporosa said he has lisence to drive heavy vehicles
^[47] Lata v State AAU0037 of 2013: 26 May 2017 [2017] FJCA 56
^[48] [2022] FJSC 9; CAV0013.2019 (28 April 2022)

^[49] Section 14(2)( f) of the Constitution
^[50] (1981) 73 Cr App R 359, (at 365)
^[51] [1988] 1 WLR 7
^[52] [1996] AC 41.

^[53] Duncan (1981) 73 Cr App R 359, Lord Lane CJ observed (at 365)
^[54] System evidence is relevant to prove that the accused was in the habbit of committing the similar type of crimes in the past. NR said he took Justin Ho’s illicit drugs from Nadi to Suva in mid June 2023.