State v Ratu [2024] FJMC 4; Criminal Case 233 of 2016 (8 March 2024)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CRIMINAL JURISDICTION

Criminal Case No. 233 of 2016

The State –v- Moape Ratu, Are Etania Nalagi and Aporosa Yada

For the State: Sgt. Cerei
For all Accused persons: Mr. Waqavakatoga

JUDGMENT

1. The Accused persons are charged as follows:

FIRST COUNT
Statement of Offence (a)

UNLAWUL POSSESSION OF ILLICIT DRUGS CONTROL ACT: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004

Particulars of Offence (a)

MOAPE RATU, ARE ETANIA NALAGI and APOROSA YADA on the 20^th day of April 2015 at Navosa in the Western Division, without lawful authority had in their possession 26.6 kilograms of cannabis sativa or Indian hemp, an illicit drug.

SECOND COUNT
Statement of Offence (a)

UNLAWFUL CULTIVATION OF ILLICIT DRUGS CONTROL ACT: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004

MOAPE RATU, ARE ETANIA NALAGI and APOROSA YADA on the 20^th day of April 2015 at Navosa in the Western Division, without lawful authority cultivated 796 plants of marijuana, an illicit drug

2. All persons were arraigned on 28^th April 2015 and later pleaded not guilty to the charges. Accused 2 last appeared in Court on 13^th April 2021 and stopped appearing thereafter due to an unverified physical incapacity. The Court considered the following authorities and proceeded to Trial in Absentia against Accused 2 accordingly.
   

Section 14(2)(h)(i) of the Constitution of Fiji 2013 states:

‘Every person charged with an offence has the right to be present when being tried, unless (i) the court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend; or (ii)............’

The Court must be satisfied that first, the accused was served with summons or similar process with sufficient notice requiring his attendance at the Trial and; second, despite summons or similar process the accused consciously, deliberately or voluntarily chose not to attend (Moape Rokoraicebe v State, Criminal Appeal No. AAU 035 of 2019). The Court has a discretion in either case to proceed or not to proceed with the Trial in the accused's absence is vested in the trial judge to decide whether the accused should be tried in his absence or not (R v Abrahams 21 VLR 343).

The Evidence for the State

3. Prosecution Witness 1 (PW1) is DC 5141 Benedito of Sigatoka Police Station. On 20^th April 201 he went for a drug raid in Navosa with PC Jolame and other officers led by SP Samisoni Naqica. After being briefed they proceeded to a farm house suspected of possessing marijuana and cultivation. At around 6am, he and other officers surrounded the farm house where one person was outside, one ran away while two were in the house. He and the officers arrested the one outside and the two inside. Inside the house, he saw a sack and it contained dried leaves believed to be marijuana which was then seized by PC Jolame and then given to SP Naqica with the three suspects. They then proceeded to a farm and uprooted 64 marijuana plants and 731 seedlings, which PC Jolame then gave to SP Naqica. He states that the three arrested persons are Itaukei men and they bear the same names as the three Accused persons in this case. He further states that Moape is a bit brown and tall, Are is short, dark with a limping leg and Aporosa is tall, fair and of medium size.
4. Prosecution Witness 2 (PW2) is PC 5245 Jolame of Sigatoka Police Station. He recalls around 5.30am on the subject day he attended to a drug raid at a farmhouse in Navosa with PW1, team and led by SP Naqica. At the house area, he recalls one Itaukei man was outside while two others were inside the house. He and the officers arrested all three Itaukei men and seized 5 sacks of dried leaves and one clear plastic bag containing dried leaves. He and other officers brought the three men and the seized items and handed them to SP Naqica. He and other officers were then detailed to uproot plants believed to be marijuana from a farm of the three Itaukei men. The three Itaukei men showed the farm to him and the officers and so the uprooted 731 seedlings and 64 plants which were then handed over to SP Naqica. The Itaukei man standing outside at the time of the raid was fair and tall while the other two inside, well one was short and not walking properly while the other was a built man.
   
5. Prosecution Witness 3 (PW3) is SP Samisoni Naqica, Deputy Commander of Mobile. On the subject date, around 2.30am he led a team of police officers including PC Sailasa, PC Apakuki, PW2, PW1, PC Loata, PC Inoke, PC Asaeli and PC Ratuva into the Navosa area to conduct a drug raid. Information received was that there was a group of men camping in the interior of Keiyasi. At the main road, he briefed everyone and then they went up the track. They then discovered a farm house which they then raided and arrested two suspects with the drugs. They then proceeded further and located another house without posts and so they could see through it. He used his binoculars and saw youth around in and around the house. This was about 6am to 7am He then returned to the teams and briefed them and they divided themselves into two teams. He remained on the hill about 200 meters away using his binoculars and saw his two teams of police officers approaching the house. He then saw two men escaping while the officers confronted the suspects in the house. The officers then brought in three suspects, five sacks of dried leaves and one white plastic. Two suspects then led them to three farms and so he dispatched his officers accordingly. They seized 795 plants which included seedlings brought in by PW2. He states that he knows one of the suspects at the time of arrest and it was Accused 3. He recognizes Accused 3 as Accused 3 is a known driver in the area and in town. The two suspects that led them to the three farms, he recalls one was limping and the other not limping. He took all the items believed to be marijuana and locked them in the Crime Officer’s office at the Sigatoka Police Station. He then observed the Government Analyst analyzing the dried leaves and confirmed that all the dried leaves were indeed marijuana and that two Government Analyst Reports were issued in that regard.

In cross-examination, he states that at times, the place of arrest gets foggy in the morning. He further states that he did not see any livestock at the place or farm.

6. That was the evidence for the State. The following documents were tendered into evidence: -
   • - PE1 – Drugs Analyst Report # 215335
   • - PE2 - Drugs Analyst Report # 215336
     

Defense Case

7. Accused 1 exercised his right to remain silent while Accused 3 opted to give sworn evidence.
   

Accused 3

8. He states that he is originally from Namoli, Navosa and that he often goes to visit his village and his livestock at Nalili which is where this raid happened. He states that the two houses at Nalili were built by one Peni and Uncle Nemani and they own the same. The day before the raid, 19^th April, he went up to Tubairata and then went on horseback to Nalili. When he reached the house he saw two other boys Malelo and Josaia with the owner of the house, Peni who is his tavale. They then pounded the grog and started to drink grog in the house. One Seru joined their grog and he brought with him dried leaves believed to be marijuana. On the morning of the raid it was quite foggy and its usually like that as it stays foggy until 10am. Around 6am, he was in the house, woke up and started to plant cassava while others were in the house. Seru his cousin had hunting dogs and so he heard the said dogs bark but he couldn’t see anything because it was foggy. He then saw the police including PW1 and the dog unit coming over. He greeted them and invited them inside which they did and they discovered the dried leaves. At the time, the said Seru and the other men ran out of the house and ran away. The police then arrested him and two others and seized all the dried leaves and took them to the station. He also states that he knows PW3 due to their past dealings when the police would use him to identify drugs suspects.

In cross examination, he states that he knew the drugs was in the house the night before but he states that it was not his and that Seru brought the same into the house the night before.

9. That was Defense case.

Analysis

10. The State bears the burden of establishing the elements of both counts or offences in the charge beyond reasonable doubt. This means that if one element in each count is not proved beyond reasonable doubt then the whole count or offence is not proved beyond reasonable doubt.
    

11. So the following are the elements of the First Count:
1. Moape Ratu, Are Etania Nalagi and Aporosa Yada,
2. Without lawful authority
3. Had in their possession 26.6 kilograms of cannabis sativa, an illicit drug

12. The following are the elements of the Second Count:
1. Moape Ratu, Are Etania Nalagi and Aporosa Yada,
2. Without lawful authority
3. Cultivated 796 plants of cannabis sativa, an illicit drug

13. In relation to the first element for each count, the State relies on visual identification evidence as the only evidence to implicate all Accused persons. This is the evidence of PW1 in as far as Accused persons are concerned and the evidence of PW3 insofar as Accused 3 only. Now PW1 describes the physical characteristics of the three persons whom he arrested and it appears to generally match the actual description of Accused 1 and Accused 3. PW1 also names all three all Accused persons as the three persons they arrested on the day in question. The authority of R v Turnbull [1977] QB 224 as widely and commonly adopted in Fiji requires certain circumstances to be elicited from the witness to enable the Court to add proper weight to the subject witness. These questions include:
    1. How long did the witness have the accused under observation?
    2. At what distance?
    100. In what light?
    4. Was the observation impeded in any way e.g. by traffic or other people?
    5. Had the witness ever seen the accused before? If so, how often? If only occasionally, had he any special reason for remembering the accused? How long had elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description given by the witness and the actual appearance of the accused? Where there is a material discrepancy the particulars should be provided to the defense and in all cases they should be supplied if requested.
14. PW1’s evidence does not cover all the above questions. PW1 does not explain how long he was with all Accused persons that day or the proximity he had or was in with the Accused persons whether it is individually or collectively. He only states how the Accused persons were arrested by PW2 and then handed over to PW3. More so, PW1 does not explain how he came to know of the names of the Accused persons. In light of these observations, I will add minimal weight to his identification evidence of all the Accused persons. PW3’s identification evidence of Accused 3 is not of a fleeting glance or identification for the first time. PW3’s evidence of Accused 3 is one of recognition. As stated by the Fiji Court of Appeal in Mataiyasi v State AAU 00167 of 2020,“recognition should be more reliable than identification of a stranger.” Accused 3’s evidence does not dispute that he was not there. Therefore, there is sufficient evidence to prove this element of both counts beyond reasonable doubt against Accused 3 only and insufficient evidence to prove this element of both elements against Accused 1 and 2 beyond reasonable doubt. Hence, the following evidence will only pertain to Accused 3.
    
15. Accused 3 has given evidence and there is no preposition or argument that he had lawful authority. Therefore, element 2 of both counts of the charge is proved beyond reasonable doubt against Accused 3.
    
16. As for element 3 of First Count of the charge, Accused 3 is said to have possessed the 26.6 kilograms of cannabis sativa otherwise known as marijuana with others that day. The State relies on the theory of joint enterprise in this matter, that is, to say that all Accused persons formed the common intention to commit the offence and therefore they are all criminally culpable for the offence. To this effect, both parties confirm through their evidence that Accused 3 was in fact standing outside of the house during the raid while the marijuana was found and seized from inside the house. Therefore, how could Accused have known about the marijuana? Accused 3 answers this by admitting in his evidence that he saw one Seru brought in the drugs the night before while they were drinking grog. Question is – does his knowledge at this point in time, of the marijuana brought into the house by Seru qualify as joint enterprise?
    
17. Section 46 of the Crimes Act 2009 on offences committed by joint offenders in prosecution of common purpose is as follows:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

When Seru brought the marijuana into the house, Accused 3 appears to imply that he was surprised because they were already drinking grog. Therefore, there was no common intention formed at this point. Now the marijuana continues to be in the house that night until the police seized it the next morning, does Accused 3’s knowledge of that the marijuana was in the house establish the formation of a common purpose? To this, there is no evidence before the Court that the said Seru spoke to Accused 3 and together they agreed to hold onto the marijuana for whatever subsequent purposes. There are many what ifs at this point and to dwell on the various scenarios would amount to speculation. That being the case, there are more doubts than assurance that a common intention was formed at any point. Therefore, there is insufficient evidence to prove that the Accused formed a common purpose to possess the said 26.6 kilograms of cannabis sativa or marijuana.

18. As for element 3 of Second Count, there is no evidence that the Accused 3 cultivated the 796 plants of marijuana. After assessing all the evidence, there is no evidence implicating the Accused 3 cultivating the said plants. There is no evidence that he led the police to the farm nor is there any evidence that he owns or has some form of control over the farm in question. Consequently, there is insufficient evidence to prove this element beyond reasonable doubt.
    

The Court’s Findings

19. The State has not discharged the burden of proving First Count and Second Count of the Charge against all three Accused persons.
    
20. The Court therefore finds Moape Ratu, Are Etania Nalagi and Aporosa Yada not guilty as charged and I hereby acquit all three persons accordingly.
    

21. 28 days to appeal.

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J. Daurewa
Resident Magistrate
8^th March 2024