Mohammed v State [2015] FJSC 14; CAV2.2015 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL PETITION NO: CAV 2 of 2015
[Court of Appeal No: AAU 92 of 2011]

BETWEEN:

SHEIK MOHAMMED
Petitioner

AND:

THE STATE
Respondent

Coram : Hon. Chief Justice Anthony Gates,
President of the Supreme Court
Hon. Justice Saleem Marsoof,
Justice of the Supreme Court
Hon. Madam Justice Chandra Ekanayake,
Justice of the Supreme Court

Counsel : Petitioner in person
Mr. V. Perera

Date of Hearing : 10 August 2015
Date of Judgment : 20 August 2015

JUDGMENT

Gates, P

[1] I concur with the decision and orders proposed by Marsoof JA.

Justice Marsoof

[2] Although in his petition dated 22nd December 2014, the Petitioner had advanced 14 grounds for seeking special leave to appeal against the decision of the Court of Appeal dated 12th December 2014, his submissions at the hearing before this Court focused mainly on two evidentiary issues, namely whether the Court of Appeal had erred in affirming his conviction despite the reception in evidence at the trial before the High Court of a photocopy of the Government Chemist Analyst Report and a carbon copy of the notes of the Petitioner's caution interview.

[3] These were not grounds urged by the Petitioner before the Court of Appeal, and it is noteworthy that ground 11 set out in his petition dated 22nd December 2014 only put in issue the use of "photocopies of the exhibits" and had no mention of the alleged use of carbon copies. The said ground for seeking special leave to appeal is reproduced below:-

"11. The learned trial Judge should not have allowed the photocopies of the exhibits to be used for replacements of original as the potential for confirmation [sic "contamination"] was high and therefore led to miscarriage of justice."

[4] The Petitioner was charged along with his co-accused, Michael Ashleigh Chandra, with the offence of unlawful possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Act No.9 of 2004 having possessed 3764.6 grams of marijuana without lawful authority. Since the allegation was that the Petitioner and his co-accused had in their joint possession the aforesaid quantity of marijuana, the basis of the charge was joint possession of illicit drugs.

[5] The evidence adduced at the trial was that acting on information received the Police stopped a vehicle bearing registration number EX 631 driven by the Petitioner with his co-accused as passenger, which was entering Sigatoka town. A search of the vehicle revealed 15 newspaper wrapped parcels of dried leaves concealed in the rear bumper of the vehicle. These leaves when analysed were shown by the Government Chemist to be 3764.6 grammes of marijuana, an illicit drug. Each of the accused made an interview under caution in which each denied knowledge of the drugs.

[6] Neither the Petitioner nor his co-accused testified at the trial or called any other witnesses despite the finding of the trial judge that there was a case to answer.

[7] After trial the Petitioner and his co-accused were found not guilty by the assessors but the learned trial Judge overturned the said verdict and found them guilty and they were convicted and sentenced to 9 years imprisonment with a minimum of 7 years before they were eligible for parole. In paragraph [5] of his judgment dated 16th August 2011, the trial judge stated as follows:-

"[5] I find beyond reasonable doubt, and it was not challenged at trial, that the first and the second accused were in control of the vehicle EX 631 at all relevant times. Being in control, the presumption comes into play and therefore both accused are deemed to have been in possession of the drugs. Neither gave evidence to rebut that presumption, and the Court finds that the bland denials in the caution interviews are not enough to rebut the presumption on the balance of probabilities."(Emphasis added)

[8] The Petitioner and his co-accused appealed to the Court of Appeal, and by the impugned judgment dated 12th December 2014, the Petitioner's appeal was dismissed and his conviction and sentence were affirmed, while his co-accused Michael Ashleigh Chandra was successful on his appeal and court made order quashing his conviction and setting aside his sentence.

[9] The primary question for decision in this application for special leave to appeal filed by the Petitioner against the aforesaid decision of the Court of Appeal is whether the decision of the trial judge to receive in evidence a photocopy of the Government Chemist Analyst Report as Ex.P2 and a carbon copy of the Petitioner's caution interview notes marked Ex.P4 was lawful.

[10] The gravamen of the Petitioner's submissions at the hearing before this Court was that the use of the aforesaid photocopy and carbon copy was unlawful as it offended the Best Evidence rule.

[11] In the context of the trial, nothing turned on the use of the carbon copy of the notes of the caution interview since the Petitioner was careful not to incriminate himself in the course of this caution interview, but the use of the photocopy of Government Chemist Analyst Report was vital to establish the prosecution case.

[12] The Petitioner has in the petition filed in this Court seeking special leave to appeal, sought permission of Court to amend the grounds of appeal and adduce fresh evidence without providing to Court particulars of the fresh evidence sought to be adduced. However, it transpires from the Petitioner's written submissions dated 3rd August 2015 that the application to adduce fresh evidence related to the alleged incompetency of the Petitioner's Counsel Mr. Iqbal Khan, who had represented him at the trial.

[13] The focus of the Petitioner's written submissions dated 3rd August 2015 was his allegation that it was through Mr. Khan's incompetence that a photocopy of the Government Chemist Analyst Report was tendered in evidence without the Petitioner's consent.

[14] It is relevant to note that although the trial was scheduled to commence before the High Court on 3rd June 2011 at 2.30 p.m., the case in fact was mentioned on that day at 9.00 a.m. and was re-scheduled for hearing on 15th August 2011 at 9.00 a.m.

[15] On that date, the Petitioner was represented by Mr. Q. Wakanivanua and he responded to an application made by the State to tender "two original caution interviews" of the Petitioner and his co-accused by informing court that he does not object to the caution interviews "neither the carbon copy nor the voluntariness". Mr. Wakanivanua also informed the Court that he has no objection to the photocopy of "the Government Chemists Certificate" which is undoubtedly a reference to the Government Chemist Analyst Report.

[16] It is noteworthy that the Petitioner has not raised any question in regard to the competence of Mr. Wakanivanua. It was only on 15th August 2011 that the Petitioner was represented by Mr. Iqbal Khan, who continued to appear for him at the trial.

[17] It is of some significance to mention that on 15th August 2011, the first witness to testify at the trial was Corporal Josefa Raiwako, who had initially got information that a private car was coming from Valley Road carrying marijuana and had taken steps to commence investigation and was also present at the time the vehicle was searched in front of the Sigatoka Police Station. Thereafter, Constable Taniela Buakula gave evidence that he assisted two other officers to stop and search the vehicle in question and its occupants, who happened to be the Petitioner and his co-accused, and to take the vehicle to the Sigatoka Police Station, where it was further searched to find the drugs kept concealed in the rear bumper of the car behind the number plate.

[18] The next witness to testify at the trial was Sergeant Anesh Kapoor, who was involved in the search of the car in front of the Sigatoka Police Station, and had taken charge of the 15 parcels of the drugs that had been found hidden in the rear bumper of the car and saw to it that all statements were recorded. He also took steps to send the parcels to the Koronivia Research Station for analysis, and stated that the finding of the Government Analyst confirmed that the parcels contained marijuana. He further testified as follows:-

"The report of the Government Analyst was uplifted by PC Sairusi Nalavea on 10/1/2008. I kept analysis report and exhibits in my custody. I got my report on same day of 10 Jan 08 – that report was attached to the docket – file was forwarded to prosecution officer at Sigatoka in April 2008. After sending doc and received it back in June 2008 originals missing – I uplifted carbon copy of exhibited docs: caution interviews and Government analyst report. After giving carbon copy tried to follow up in office. Conducted thorough search – at Station exhibits and also at prosecution office. The search was conducted by me – exhibit written."

[Shown Ex.P2] This is a copy of the Government Analyst's Report. Signature of mine on top. This is true photocopy but original has been lost. I tender this in evidence. (Emphasis added).

[19] When admitting in evidence the Government Chemist Analyst Report marked as exhibit Ex.P2, the High Court Judge had noted for the purpose of record that on 3rd June 2011 the accused had consented to the reception of the photocopy of the said report.

[20] The carbon copy of the caution interview was produced in evidence through Sergeant Anup Kumar, who was the next to testify for the prosecution. He testified that he was on duty on 14th November 2007 and that he conducted the caution interview of the Petitioner. He further testified as follows:-

"I interviewed one suspect – It was Sheik Mohammed. One witness officer. It was in Crime Office at Sigatoka with English language. Witness was Mohammed Shameem. Question and Answer format. Signed by accused – signed by me. Signed by witness. Two carbon copies. Original copy of interview handed to Investigating Officer."(Emphasis added)

[21] Here again, when admitting in evidence the carbon copy of the caution interview notes relating to the Petitioner marked as exhibit Ex.P4, the High Court had noted for the purpose of record that the original is lost and a diligent search was made for the original and that the Petitioner had consented to the reception of the carbon copy on 3rd June 2011.

[22] It is significant that Mr. Iqbal Khan, who appeared for the Petitioner at the trial did not take objection to the reception in evidence of the photocopy of the Government Chemist Analyst Report and the carbon copy of the caution interview notes as exhibits Ex.P2 and Ex.P4 respectively. It is very unlikely that any objection on his part would have prevented the reception of these exhibits in evidence since as the High Court Judge had noted, the Petitioner had consented to the reception of these documents on 3rd June 2011.

[23] The Best Evidence rule, which is a fundamental rule of evidence of the English common law, precludes secondary evidence, such as a photocopy or facsimile of an original document if such original exists and can be obtained. However, the rule would not prevent the production in evidence of carbon copy, such as the carbon copy of the notes of the caution interview marked Ex.P2, which by itself is a duplicate original, and is primary rather than secondary evidence. The rule will also not prevent the production in evidence of the photocopy of the Government Chemist Analyst Report marked Ex.P4, if evidence is led, as was done in this case, that the original has been lost or misplaced and could not be traced even after a diligent search.

[24] In any event, principles of the English common law will not apply to a prosecution under the Illicit Drug Control Act since Part IV of the said Act contains special evidentiary rules that will apply to such prosecutions. Section 36(1) of the Act provides specifically that in any proceedings under this Act, the production of a certificate purporting to be signed by a Government analyst is prima facie evidence of the facts stated in the certificate.

[25] However, for this prima facie rule to apply, a copy of the analyst certificate must be served by or on behalf of the prosecutor on the accused or his or her counsel at least 42 working days before the hearing at which the certificate is to be tendered as evidence, and the accused must be informed in writing that the prosecutor does not propose to call the person who made the analysis as a witness. It is noteworthy that when it transpired that the original of the Government Chemist Analyst Report was missing, as was noted in paragraph [13] of this judgment, the trial which was originally scheduled for 3rd June 2011 at 2.30 p.m., was re-scheduled for re-scheduled for 15th August 2011 at 9.00 a.m. to enable compliance with the aforesaid provision.

[26] It is of significance to mention that Section 36(3) of the Illicit Drug Control Act provides that if any accused intends to cross-examine the analyst, the accused must, in writing, give the prosecution at least 21 working days' notice of his or her intention to do so to enable the prosecution to produce the analyst at the hearing. It is noteworthy that the Petitioner or his co-accused took no steps to procure the presence in court of the Government Analyst who issued the original of the Government Chemist Analyst Report for the purpose of cross-examination.

[27] Furthermore, a perusal of the cross-examination of the prosecution witnesses by Mr. Iqbal Khan, who represented the Petitioner, would reveal that not a single question was put to the prosecution witnesses with the view of casting doubt on the position of the prosecution that what was concealed in the rear buffer of the vehicle driven by the Petitioner consisted of marijuana, which was an illicit drug.

[28] The cross-examination by Mr. Khan as well as the Petitioner's co-accused, who appeared in person, focused on the question whether the Petitioner and his co-accused were in possession of the 15 parcels of marijuana concealed in the rear bumper of the vehicle driven by the Petitioner, and whether the Petitioner or his co-accused had the knowledge that the parcels contained the illicit drug.

[29] The crux of the charge against the Petitioner was that he possessed an illicit drug without lawful authority in contravention of section 5(a) of the Illicit Drug Control Act. Since the word "possess" was not defined in the Act, the lower courts looked at the English common law for guidance, particularly in the context that the Petitioner and his co-accused were charged and stood trial together on the basis that they were in joint possession of the illicit drugs.

[30] Although amongst the grounds urged by the Petitioner in his petition seeking special leave to appeal there were several that raised questions relating to the nature of the requisite possession, these questions paled into insignificance when the Court of Appeal quashed the conviction of the Petitioner's co-accused on the basis that he was a mere passenger who was keeping company with the Petitioner who drove the car belonging to his brother in law in which the illicit drugs were found by the police, and there was no other evidence to implicate him in the crime.

[31] The issue of possession of the illicit drugs has been examined very carefully by the Court of Appeal, and there is no necessity to advert this issue in this judgment.

[32] Section 32 of the Illicit Drug Control Act provides that where in any prosecution under the 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."

[33] The Petitioner, who did not testify on his own behalf or lead other evidence sufficient to rebut the presumption created by section 32 of the Illicit Drug Control Act, did not press any of the grounds of appeal urged by him in his petition other than ground (11) that related to the reception in evidence of a photocopy of the Government Chemist Analyst Report and a carbon copy of the notes of his caution interview.

[34] We hold that the Petitioner has failed to show that the impugned judgment of the Court of Appeal has occasioned any substantial and grave injustice to the Petitioner or otherwise given rise to a question of general legal importance or substantial question of principle affecting the administration of criminal justice as contemplated by section 7(2) of the Supreme Court Act No. 14 of 1998.

[34] Accordingly we refuse the grant for special leave to appeal.

[35] We also refuse the application to adduce fresh evidence due to lack of particulars.

[36] The application for special leave to appeal against the decision of the Court of Appeal dated 12th December 2014 as well as the application to adduce fresh evidence are accordingly dismissed.

Justice Ekanayake

[37] I have read the draft judgment and agree with the reasoning and the conclusions of Marsoof JA.

....................................................
Hon. Chief Justice Anthony Gates
President of the Supreme Court

....................................................
Hon. Justice Saleem Marsoof
Justice of the Supreme Court

....................................................
Hon. Madam Justice Chandra Ekanayake
Justice of the Supreme Court