Abourizk v State [2022] FJSC 9; CAV0013.2019 (28 April 2022)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL PETITION NO. CAV 0013 OF 2019
[Court of Appeal Nos. AAU0054/16; AAU0059/16; and AAU0062/16]

BETWEEN:

1) JOSEPH ABOURIZK
2) JOSESE MURIWAQA

Petitioners

AND:

THE STATE

Respondent

Coram : The Hon. Mr. Justice Saleem Marsoof

Judge of the Supreme Court

The Hon. Mr. Justice Buwaneka Aluwihare

Judge of the Supreme Court

The Hon. Mr. Justice Brian Keith

Judge of the Supreme Court

Counsel : Mr M. Thangaraj SC for the 1^st Petitioner

Mr A. K. Singh and Mr A. Nand for the 2^nd Petitioner

Mr L. J. Burney and Ms S. Tivao for the Respondent

Date of Hearing : 22 April, 2022

Date of Judgment : 28 April, 2022

JUDGMENT

Marsoof, J

[1] I agree with the well considered judgment of Keith J, which I have perused in draft, and the orders proposed by him.

Aluwihare, J

[2] I have read the judgment of Keith J in draft and I agree with his reasoning and conclusions.

Keith J

Introduction

[3] This case has become a notorious one. A very large quantity of hard drugs was seized by the police – one of the largest hauls ever in Fiji. So far as we know the two petitioners received the longest sentences ever passed in Fiji on people who deal in drugs.

[4] The petitioners faced a single charge in the High Court of unlawful possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act 2004 (“the Act”). They pleaded not guilty at their trial. The five assessors expressed the opinion that the petitioners were not guilty, but the trial judge, Rajasinghe J, took a different view. He found them guilty, and sentenced each of them to 14 years’ imprisonment with a non-parole period of 12 years.

[5] The petitioners applied for leave to appeal against both their conviction and sentence to the Court of Appeal. That application was considered by Goundar J. He took the view that two of the grounds relied on raised questions of law, and therefore leave to appeal was not required in respect of those grounds. Those grounds related to the nature of the burden on defendants to rebut the presumption of possession of illicit drugs in section 32 of the Act, and whether the trial judge had “embellished the test” under section 237 of the Criminal Procedure Act for disagreeing with the opinion of the assessors. In addition, he gave the petitioners leave to appeal on the question whether it had been reasonably open to the trial judge to be satisfied beyond a reasonable doubt that both petitioners knew that they had illicit drugs in their possession. He also gave both the petitioners and the State leave to appeal against sentence on the basis that it was arguable that there had been “numerous errors in the exercise of the sentencing discretion”.

[6] The Court of Appeal was divided on the appeal against conviction. Gamalath JA delivered a spirited dissenting judgment in favour of allowing the appeal, but Prematilaka and Bandara JJA disagreed, and accordingly the appeal of both petitioners was dismissed by a majority. Gamalath JA did not address the appeal against sentence in view of his opinion on the appeal against conviction, but Prematilaka and Bandara JJA acceded to the State’s request for the Court to give a guideline judgment on sentencing in cases of possession of hard drugs. Having identified the sentencing ranges, the majority regarded the sentences passed on the petitioners as inadequate and increased the sentences of each of them to 25 years’ imprisonment with a non-parole period of 20 years.

[7] The petitioners now apply for leave to appeal against their conviction and sentence to the Supreme Court. I trust that I will be forgiven for going into the facts in some detail: the determination of the question whether it was reasonably open to the trial judge on the evidence to be sure that the petitioners knew that they had illicit drugs in their possession requires a close analysis of the evidence. I approach that question with particular care since that was the issue on which (a) the assessors are likely to have disagreed with the judge and (b) Gamalath JA disagreed with his colleagues. I intend no discourtesy to the petitioners if I refer to them by their family names from now on for convenience, when it is necessary to identify to which of the petitioners I am referring.

A preliminary point

[8] Many of the written submissions prepared for the hearing in the Supreme Court focused on where it is alleged the majority of the Court of Appeal went wrong. However, in Lesi v The State [2018] FJSC 23, the Supreme Court said at para 74:

“ ... much of the petitioners’ focus was on the judgment of the Court of Appeal. Their grounds for the most part set out the ways in which they say the Court of Appeal fell into error. That is entirely understandable. After all, they are seeking leave to appeal from the decision of the Court of Appeal. But it should not be forgotten that, although the Supreme Court is a second-tier court, its focus is still on what happened in the trial court – just like the Court of Appeal. It has the advantage, of course, of the views of the Court of Appeal on whether things went wrong in the trial court, but what it ultimately is reviewing is the course which the trial took rather than whether the Court of Appeal’s analysis of the grounds of appeal was correct.”

That explains why this judgment will not be addressing every way in which it is said that the Court of Appeal fell into error, or every aspect of the process of reasoning of Gamalath JA and the majority.

The prosecution’s case

[9] The prosecution’s case was based for the most part on the evidence of a senior police office, Acting Superintendant Serupepeli Neiko. Information had been received that a transaction involving drugs was going to take place in Lautoka the next day, 13 July 2015. Accordingly, on the following day, he and two other officers – all in plain clothes – went to Lautoka. While there, ASP Neiko was advised to look out for a car with the registration number HM046. In the late afternoon, they saw the car and began to follow it. It went through Vuda Marina, and ended up on an unmade gravel road. It could not go all the way along that road as there was a cart obstructing it. The car turned round, stopped, and two men got out. It was not disputed that the two men in the car were the petitioners, that Muriwaqa had been driving the car, that Abourizk had been in the front passenger seat, and that they had had the car since 7 July.

[10] ASP Neiko’s evidence was that after he had stopped his car, he saw the two men go to their car’s boot which they opened, and then saw some suitcases being thrown out of the boot. He said that he then saw both men “repacking” some things into black bags. They closed the boot and got back into the car where each had been sitting. It is not possible to tell from his evidence at what angle the men’s car was to his car. He demonstrated that to the judge by reference to where the assessors were sitting, but that demonstration does not, of course, appear in the transcript of his evidence. However, he did say that the driver was further from him than the passenger. The only thing blocking his view, though, were shrubs which were about knee high.

[11] According to ASP Neiko, one of the men asked him to move his car, presumably so that they could drive past him. ASP Neiko’s car did that, but then he got out of his car, went up to the two men, and identified himself as a police officer. He asked them what they were doing there. ASP Neiko then asked the two men to get out of their car as he wanted to search the boot. They did so, and on searching the boot, ASP Neiko saw two suitcases, a travel bag and some black bags. The travel bag and one of the suitcases had padlocks on them. ASP Neiko said that the keys to these padlocks were found in the car, and the keys were used to open the travel bag and the suitcase. In one of the suitcases were 20 blocks wrapped in plastic and masking tape, and a further 14 blocks similarly wrapped were found in the travel bag. ASP Neiko said that two empty suitcases were found nearby. When it was put to ASP Neiko that there was insufficient room in the boot for those two empty suitcases as well as the suitcases, bags and the travel bag he saw in the boot, he disagreed.

[12] It was never disputed that when analysed the 34 blocks were found to consist of 49.9 kilos of cocaine. It should be noted that the other two officers with ASP Neiko were not called to give evidence at the trial, and that none of the suitcases, bags or the travel bag were tested for fingerprints. When Abourizk’s room at the Westin Hotel in Denaru was searched, no drugs were found, but the police found about $8,000 Australian dollars and over $14,000 Fijian dollars. I need say no more about the money because (a) it was never suggested by the prosecution at the trial that any inference adverse to the petitioners should be drawn from it, (b) the judge did not mention the money at all in his judgment, and (c) the judge did not give either the assessors or himself a direction about the money along the lines of R v Grant [1996] 1 Cr App R 73 which he would have had to have done if the money had been considered important.

The defence case

[13] Abourizk is Australian and was 29 years old at the time of his arrest. He had no previous convictions. He elected to give evidence. No other evidence was called on his behalf. His evidence was that this was his third trip to Fiji. The first time he had come was to look at some land which Muriwaqa – who he knew through a friend in Australia who was Muriwaqa’s cousin – had inherited. His second trip to Fiji was on business, and this third trip was “for business with” Muriwaqa and a holiday for himself and his wife. On this third trip, he met an older man called Simon at his hotel. That was on Wednesday 8 July 2015. Simon was Canadian and owned a yacht which he chartered out. He asked Abourizk whether he wanted to go out in it, and Abourizk agreed to do so as he thought his wife would enjoy it. A fee of $1,400 was agreed. However, on the Saturday – which would have been 11 July – Simon called to cancel the trip. He called again on Monday 13 July. By this time, Abourizk’s wife had returned to Australia, and Muriwaqa was with him when Simon called. Simon offered to take them on a trip in the yacht for free that day to make up for letting Abourizk and his wife down on the Saturday. Abourizk accepted the offer, and it was agreed that they would meet at the First Landing Beach Resort (“First Landing”) which was next to Vuda Marina. Simon said that he would be dropping them off at Sigatoka after the trip. Knowing that they would have to take a taxi back to where the car would be left, Abourizk took enough cash with him to pay the fare.

[14] When the petitioners arrived at First Landing, Simon told them that there would be a slight delay because there was something wrong with the yacht’s radio, and his crew had gone to collect another one. He suggested that the three of them drive to where his crew had gone, and thereby save them having to come back to First Landing where the yacht was moored. The three of them drove north with Simon directing them, ending up in Ba. In Ba, Simon spoke to his crew. He told the petitioners that his crew had got the wrong radio, that although it was after lunch by then there was still time to make the trip, and that while his crew went to get the correct radio, they should take the crew’s luggage to the yacht. Their luggage was put in the car – some in the boot and some on the back seat – and that luggage included the suitcase and the travel bag which were later found to contain the cocaine. The three of them then returned to First Landing. When they got there, Simon left them, saying that he needed to check out of the hotel, and that he would meet them in 15 minutes at Vuda Marina.

[15] Abourizk said that he had previously seen a sign advertising land for sale at First Landing. Muriwaqa suggested that they have a look at the land which was being advertised, and they therefore drove down the gravel road to which ASP Neiko had referred. When they came to the cart obstructing the road, they did what Abourizk described as a “5 point turn”. It was at that point that the police officers came over to them. One of the officers spoke to Muriwaqa. They spoke in Fijian which Abourizk did not understand, but Muriwaqa was pointing to the land. It was ASP Neiko who spoke to Abourizk. ASP Neiko asked him if he was from Canada, and Abourizk told ASP Neiko that he was Australian. ASP Neiko asked him what he was doing there, and he said that he was looking at some land.

[16] In the course of his evidence, Abourizk was asked about the bags which the police had found. He said that neither he nor Muriwaqa had touched any of the bags, that neither of them had got out of the car, that neither of them had thrown any of the bags out of the car, and that neither of them had repacked anything. He had no idea that any of the bags or suitcases contained drugs. He had not noticed any padlocks on any of the bags, he had never seen any keys for the padlocks in the car, and he had not seen any suitcases lying on the ground. He was asked by one of the police officers who the bags belonged to, and he said that Simon was still at First Landing and should still be there. As for the Fijian dollars found in his hotel room, his evidence was that this was to help Muriwaqa set up a business.

[17] In the course of his evidence, Abourizk complained of the way he had been treated from the time that he was detained by the police. I use the word ”detained” because he said that he had never been told that he was being arrested. He also complained that some of his money was missing – and he blamed the police for that. These allegations were denied by ASP Neiko and another senior police officer, Inspector Maciu, who also gave evidence

[18] Muriwaqa elected not to give evidence or call witnesses. In his judgment, the judge said that Muriwaqa had “advised the court that he endorses and adopts the evidence given by [Abourizk] for his defence”. I have assumed that the judge was referring to Muriwaqa’s counsel. I have not seen that in the transcript, but if that was what the judge was told, I do not think that it should have been. It amounted to counsel giving evidence in circumstances where Muriwaqa could not be cross-examined about it. Having said that, the evidence given by Abourizk was evidence given in the case, and it was just as relevant to Muriwaqa’s case as it was to Abourizk’s.

The judge’s directions about what had to be proved

[19] Despite the number of grounds of appeal, only two criticisms are made of the judge’s directions – whether to the assessors in his summing-up or to himself in his judgment – relating to what the prosecution had to prove. Those criticisms relate to the petitioners’ knowledge of whether there were drugs in one or other of the bags or suitcases, and the directions which the judge gave about joint possession. I deal with each in turn.

[20] Possession and knowledge. Section 5(a) of the Act criminalizes, amongst other things, the possession of illicit drugs. Possession is an elusive concept in the law. Are you in possession of something which you do not have on you, but is in your home, for example, or in a car in which you are travelling? The Act gives some help on that. Section 32 of the Act provides, so far as is material:

“Where in any prosecution under this Act it is proved that any illicit drug ... was ... in any ... vehicle ... 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 ...”

The judge correctly identified in his judgment the effect of this presumption. In para 15, he said that the presumption would arise if the prosecution proves that

• the bags were in the car
• one or more of the bags contained illicit drugs
• the car was under the petitioners’ control.

And in para 16 he went on to say – again correctly – that if the prosecution proved those matters beyond reasonable doubt, it would then be for the petitioners to prove that the drugs were not in their possession. With one exception, none of the three matters which had to be proved for the presumption to arise were in dispute at the trial. The exception relates to Abourizk. It was said on his behalf that the car had not been under his control as he had not been driving it. It follows that, subject to the one reservation about Abourizk not having been the driver, it was then for the petitioners to disapply the presumption, by proving – on a balance of probabilities, of course, not beyond reasonable doubt – that they had not been in possession of the drugs..

[21] But that is not the end of the matter. That is because of 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.

[22] Bearing in mind, then, that the burden of proving that they had not been in possession of the drugs had shifted to the petitioners (subject, again, to the reservation about Abourizk), what did the requirement of knowledge mean that the petitioners had to prove? That depends on whether the burden is a legal or evidential one. As most law students know, a legal burden is a burden on a party to prove a particular fact. An evidential burden is a lesser burden. It is a burden on a party merely to produce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The distinction is important. If the burden is a legal burden, it was for the petitioners to prove – on a balance of probabilities – that they had not known that any of the bags or suitcases in the car contained drugs. On the other hand, if the burden is only an evidential one, it was for the petitioners to produce sufficient evidence on which a court could conclude that they might not have known that any of the bags or suitcases contained drugs. If they were able to do that, it would then be for the prosecution to prove beyond reasonable doubt that they had known that there were drugs in one or other of the bags or suitcases. In para 16 of his judgment, the judge held that the burden was an evidential one. Prematilaka JA disagreed. He thought that the burden was a legal one.

[23] It is unnecessary for us to resolve this issue. That is because the judge directed himself on a view of the law which was most favourable to the petitioners. He said at para 13 of his judgment:

“Accordingly the prosecution is required to prove beyond reasonable doubt that the two accused persons knowingly had these illicit drugs in their actual possession or [in] their custody ... ” (Emphasis supplied)

The judge’s direction on this topic is critical. He was saying that it was not for the petitioners to produce sufficient evidence on which the court could conclude that they might not have known that any of the bags or suitcases contained drugs – let alone to prove, albeit on a balance of probabilities, that they did not know that illicit drugs were in one or more of the bags or suitcases. On the contrary: he was saying that it was for the prosecution to prove beyond reasonable doubt that they did know that. That was the specific question to which the judge turned in para 25 of his judgment, and in para 36 he said that he inferred, from the primary facts which he found proved, that the petitioners did know of the “existence of these illicit drugs in their joint control”. By which he meant, no doubt, that they knew of the presence of the drugs in one or more of the bags and suitcases.

[24] This direction was identical in all material respects to the direction he gave the assessors in para 23 of his summing-up, though since the determination of guilt or otherwise is for the judge alone, the summing-up is relevant in most cases only to the extent that it casts light on what the judge meant in his judgment. I say “in most cases” because the summing-up will assume greater importance for an appellate court if the judge disagrees with the opinion of the assessors about the guilt or otherwise of a defendant. Having said that, I think that the directions which the judge gave the assessors were more complicated than they needed to be. Lay people will be confused by phrases such as “the legal burden” and “the evidential burden” – especially if they are used without explaining the difference between them. But the core point which the judge wanted to make about the burden being on the prosecution to prove that the petitioners knew of the presence of drugs in one or more of the bags or suitcases was there, and its meaning was not undermined by the legalisms which the judge used.

[25] The direction which the judge gave about the prosecution having to prove knowledge on the part of the petitioners, rather than for the petitioners to disprove knowledge, has been criticized by Mr Burney for the prosecution. I do not agree with that criticism – at any rate, once the judge had found that the burden was an evidential one. After all, Abourizk’s evidence was, on any view, sufficient to raise the issue of knowledge. In any event, the criticism takes the prosecution’s case no further. Since the judge found the petitioners guilty on a view of the law which had been favourable to them, he would inevitably have found the petitioners guilty if a less favourable direction to them had been given.

[26] For these reasons, I agree with Goundar J that the question whether the burden on defendants to rebut the presumption of possession of illicit drugs in section 32 of the Act is an evidential or legal one is an important question of law. It was no doubt that which led Prematilaka JA to embark on a discussion about the topic. Indeed, Mr Singh, counsel for Muriwaqa, contended before us that if the burden was a legal one as Prematilaka JA thought, the question would then arise whether section 32 offends the presumption of innocence guaranteed by Art 14(2)(a) of the Constitution. I cannot tell whether an argument was addressed to the Court of Appeal along those lines. These topics are important ones, but in the light of the favourable direction which the judge gave, this case is not the appropriate vehicle in which to debate them.

[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.

[28] Joint possession. At first sight, the prosecution was not alleging that the petitioners were in joint possession of the drugs. The charge did not state that they were jointly in possession of them, and so far as I can tell Mr Babitu, counsel for the prosecution at the trial, never told the court that what was being alleged was joint possession. On the other hand, the petitioners were both charged in the single charge. In other words, they did not face separate charges, each alleging possession of the drugs. Moreover, the judge treated the charge as one of joint possession, because (a) in his judgment he cited a long passage from Mohammed v The State [2014] FJCA 216 which dealt with joint possession, and (b) he purported to direct both the assessors and himself about what needs to be proved in a case of joint possession. Finally, the evidence was consistent with the petitioners being in joint possession of the drugs (on the assumption that they knew that there were drugs in one or other of the bags or suitcases): they were both in the car, they had been with each other at all material times, and they did the same things with the bags and suitcases (if ASP Neiko’s evidence was to be believed). In these circumstances, we must, I think, proceed on the assumption that the case which the prosecution set out to prove was one of joint possession.

[29] So what has to be proved in a case of joint possession? Mohammed was a case similar to the present one. Drugs were found in a car with the two defendants in it. The allegation was that they were in joint possession of the drugs. Gamalath JA, giving the main judgment in the Court of Appeal, with which the other two judges agreed, said at para 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 supplied)

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.”

I regard that as an accurate statement of the law, and if Gamalath JA was saying that in a case such as ours, where the allegation is one of joint possession, it is for the prosecution to prove that each defendant had the right to say what should be done with the drugs, I would agree with him.

[30] I turn, then, to the direction which the judge gave in our case. Having cited these passages from the judgment of Gamalath JA in Mohammed, he said at para 13:

“... the prosecution is required to prove beyond reasonable doubt that the two accused persons ... had the knowledge and consent of each others to have these illicit drugs in their possession.”

That was also what he told the assessors in para 23 of his summing-up. The criticism of the judge made by Mr Thangaraj QC for Abourizk is that this direction was wrong.

[31] Where had the judge got this language from? The answer, I think, is plain. Section 4 of the Crimes Act contains a non-exhaustive definition of joint possession. It provides:

“‘possession’, ‘be in possession of’ or ‘have in possession’ includes –

...

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest 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.”

Plainly the judge tracked this language in the direction he gave the assessors. Although he cited the relevant passages from Mohammed in his judgment, he presumably thought that the example given in section 4 of a situation in which joint possession would arise covered the present case. Prematilaka JA thought that the judge’s direction based on section 4 of the Crimes Act was correct.

[32] The difficulty with the judge’s approach is that the definitions in the Crimes Act apply, as the opening words of section 4(1) make clear, only to the Crimes Act, unless the context otherwise requires. It was not suggested that there was anything in the Crimes Act or elsewhere which required the definition of joint possession in the Crimes Act to apply to offences criminalized by the Illicit Drugs Control Act. So the question then is whether the direction which the judge gave on joint possession – albeit based on the Crimes Act – was any different from what Mohammed said the direction should be.

[33] I think that there is a difference between the two. One direction focuses on the need for the defendants to have allowed each other to have the drugs. The other focuses on the need for each defendant to be entitled to do what they want to with the drugs. But that is a very fine distinction, and in the vast majority cases, it would make no practical difference. This is such a case. A purist would say that the judge’s direction was wrong, but the outcome would inevitably have been the same whichever of the two directions the judge had given.

The way the prosecution put its case

[34] I deal with a peripheral point first to get it out of the way. There was a lengthy debate before us about the way the prosecution put its case at trial. A number of questions which Mr Babitu asked Abourizk showed that the prosecution accepted the existence of Simon, that the drugs belonged to Simon, that Simon was paying the petitioners to courier the drugs from Ba to First Landing for him, and that at least some of the money found in Abourizk’s hotel room had come from Simon. Two points are said to arise from this. The first relates to the judge. He is said to have adopted inconsistent positions on the topic. In para 32 of his judgment, he rejected the suggestion that the drugs had belonged to Simon – in effect, putting the petitioners higher up the distribution chain than mere couriers. However, when it came to sentence, the judge appeared to go along with the prosecution’s case because in para 16 of his sentencing remarks he referred to them as “mules”. The second point is that the prosecution changed its position when the case got to the Court of Appeal. There it was saying that Simon did not exist.

[35] For my part, I do not regard these points as in any way telling in the overall scheme of things. Any unfairness caused to the petitioners by the prosecution’s change of stance in the Court of Appeal did not affect the fairness of the trial. And the way the prosecution put the case at trial did not feed into the judge’s critical finding that the petitioners knew about the presence of drugs in one or more of the bags and suitcases.

The critical part of ASP Neiko’s evidence

[36] The whole of ASP Neiko’s evidence was important. It was his evidence which placed the petitioners in the car with the drugs. But in view of Abourizk’s account of how the drugs came to be in the car, it was ASP Neiko’s evidence about what he saw the petitioners do with the bags and the suitcases – unpacking and repacking them and then throwing away those suitcases which were no longer of use – which was the critical evidence. That was the evidence which, if true, directly linked the petitioners to the drugs, and completely undermined Abourizk’s account of innocently taking the crew’s luggage back to the yacht. Its importance in the case as a whole cannot be exaggerated. It was for that reason that counsel for both petitioners say that without that evidence there was absolutely nothing to contradict Abourizk’s account of how the drugs came to be in the car. That meant, they say, that the prosecution’s case stood or fell on ASP Neiko’s truthfulness on this part of his evidence.

[37] I do not agree. When a large consignment of drugs is found in a car with two people in it, that fact alone calls for an explanation about how the drugs came to be in the car. The burden of proof is not on a defendant, of course, but if that explanation is implausible, it may not be enough to cause the court to have any doubt about the defendant’s knowledge of the presence of drugs in the car – even in the absence of evidence of the kind of repacking which ASP Neiko says he saw the petitioners do. Indeed, the prosecution says that Abourizk’s explanation has a real implausibility at the heart of it. Would people who traffic in very large consignments of hard drugs like cocaine really leave such a consignment with people they hardly knew, even for a short time? The fact of the matter is that, unquestionably important though ASP Neiko’s evidence was of the unpacking and repacking of the bags and suitcases, it is difficult to assert that it would not have been open to the court to convict the petitioners without it.

The judge’s findings

[38] With that in mind, I turn to the judge’s process of reasoning. The judge regarded two things as highly significant. First, he referred to ASP Neiko’s evidence about his movements on the day in question. He and his team had been stationed at a junction on the main road close to Lautoka on the day in question. For a period of about six hours, they had monitored the traffic going towards Nadi from Lautoka. When they saw the petitioners’ car coming from Lautoka, they followed it through Vuda Marina until it turned down the gravel road where it eventually came to a stop because of the cart obstructing the road. If this was correct, it would, of course, have been inconsistent with Abourizk’s evidence that he, Muriwaqa and Simon stopped at First Landing where Simon left them before going down the gravel road. It was not put to ASP Neiko that if he had been following the car as he claimed to have done, he would have seen the car stop at First Landing, drop the third man in the car off and then go down the gravel road. The judge said, in effect, that the combined effect of (a) his view that ASP Neiko’s evidence on this topic was credible, and (b) the failure of Mr Thangaraj to put that part of Abourizk’s account to ASP Neiko, caused him to doubt the credibility and reliability of Abourizk’s evidence on the topic.

[39] The second strand in the judge’s process of reasoning was the point – already mentioned earlier – which the prosecution made about the implausibility at the heart of Abourizk’s account of what happened. Would people who traffic in very large consignments of hard drugs like cocaine really leave such a consignment of cocaine with people he hardly knew, even for a short time? And would Simon have been prepared to travel in the same car as them from Ba to First Landing with such a large consignment of cocaine in the car?

[40] So much, then, for the two reasons which the judge gave for finding the petitioners guilty. What about ASP Neiko’s evidence about the packing and repacking of the bags and suitcases – the evidence which linked the petitioners to the drugs more than anything else. Or the retrieval by the police of the two suitcases which ASP Neiko said he saw the petitioners throw away? Or the discovery in the car of keys to the padlocks for those of the suitcases or bags which were locked? It is here that we come to an extraordinary feature of the judge’s judgment. The trial judge did not rely on any of that evidence at all. Not only that. At no stage in his judgment did he even mention that any of that had been part of ASP Neiko’s evidence. That cannot have been because he had forgotten about that evidence. In his summing-up, he had reminded the assessors of all of it (save for the evidence about finding in the car the keys to the padlocks). The omission of all this from his judgment is at first blush very surprising. Why was it not mentioned by the judge? And why did he not say what his findings were about that evidence? There can, I think, be only one answer: the judge was not sure that ASP Neiko’s evidence on these topics was true. I have been unable to think of any other reason. And the reason why he did not say that he was not sure about ASP Neiko’s evidence on these topics can only really have been because he wanted to spare ASP Neiko’s blushes.

[41] Prematilaka JA took the view that the failure of the judge to mention these topics in his judgment was not to the point. Section 237(5) of the Criminal Procedure Act provides:

“In every such case [ie where the judge does not agree with the majority opinion of the assessors] the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessor, shall collectively be deemed to be the judgment of the court for all purposes.”

Prematilaka JA said that because the assessors had been reminded of ASP Neiko’s evidence on these topics in the summing-up, they had to be treated as part of the judge’s judgment. With great respect to Prematilaka JA, this misses the point. It is the absence of any reference to ASP Neiko’s evidence on any of these topics in the judgment which is critical, not their presence in the summing-up.

[42] It would not have been surprising if the judge had not been sure that ASP Neiko’s evidence on these topics was true. The attack on his credibility was powerful and sustained. It was the reason for Gamalath JA’s dissent. What follows is only a relatively brief summary of the problems with ASP Neiko’s evidence, but it is sufficient to illustrate the point. However, I preface what follows by saying that there are references in it to a voir dire. We were rightly not told what the issue in the voir dire had been – whether it related to the admissibility of evidence or something else – or what the outcome of the voir dire was. Naturally, I have not speculated what it was about, and I return to the many problems with ASP Neiko’s evidence without that in mind:

(i) There was an implausibility at the heart of ASP Neiko’s evidence. Why would two couriers of a large consignment of cocaine go to an isolated place and there unpack and repack the consignment, and then discard the suitcases they had no use for, in full view of another car which they would have realized had been following them down the road – especially as ASP Neiko’s evidence had been that his car had been close behind the petitioners’ car along the gravel road? And what was the point of unpacking one or more bags only to put the consignment in other bags?

(ii) ASP Neiko’s evidence was uncorroborated when it would have been easy for the prosecution to call as witnesses the two officers who were with him at all material times. Indeed, although ASP Neiko claimed to have asked those officers to make witness statements, he said in the voir dire that they had been unwilling to do so and had suggested that he should make the witness statement as he was the team leader. Why would they have been unwilling to make witness statements if what ASP Neiko had to say about these events was true? The suggestion was that they must have been unwilling to make their own witness statements because they knew that what ASP Neiko proposed to say was untrue.

(iii) There were a number of highly significant omissions from ASP Neiko’s own statement. He did not say anything about having seen bags or suitcases being thrown out of the car. Nor did he say anything about some of the bags or suitcases being padlocked, or about keys to the padlocks being found in the car. These were key features of the evidence, and the suggestion was that because they did not feature in ASP Neiko’s witness statement, they could not have been true. Morever, ASP Neiko had not said anything in his witness statement about having cautioned the petitioners, whereas he claimed in his evidence that he had cautioned them. The significance of that was that the defence claimed that he had never cautioned them, and that that can only have been because he had never seen them unpacking and repacking the drugs. There were less significant omissions from his witness statement which ASP acknowledged, but they did not, in my opinion, take the case much further.

(iv) ASP Neiko said that he had made a note of relevant events at the time in his diary but he could not produce it as it had been in his office when it was damaged in cyclone Winston and then disposed of. He accepted that it should have been in the archives. The point which the defence made was that it had conveniently disappeared because had it been produced it would have revealed a version of events very different from that being advanced by ASP Neiko in his evidence.

(v) ASP Neiko’s evidence was that he had followed the petitioners’ car from before it reached the junction at Natabua. The distance between Natabua and where the petitioners’ car finally came to a halt is more than 10 kilometres. Despite that, when he was cross-examined, he acknowledged that he had followed them only for a distance of about 1 kilometre. He had previously said that he had followed their car for about 500 metres down the gravel road, so the effect of his evidence, as revised in cross-examination, was that he had only been following the petitioners’ car for about 500 metres before it turned into the gravel road. We were not told if there had been any evidence about the distance from where, on Abourizk’s account, Simon had been dropped off and the start of the gravel road, but if it was greater than 500 metres, ASP Neiko would not have been in a position to dispute Abourizk’s claim that they had dropped Simon off at First Landing. However, this may be a completely false point in the absence of evidence that the distance was more than 500 metres, and for my part, I put that to one side. The fact remains, though, that there was a significant shift in ASP Neiko’s evidence about where he first began to follow the petitioners’ car.

(vi) ASP Neiko gave inconsistent accounts of how far his car had been from the car in which the petitioners were travelling when he saw the petitioners get out of their car. In his evidence-in-chief, he said that their car was about 15 metres away from his, and he could not tell from that distance which of the two men in the car had thrown the bags or suitcases from the car. However, in the voir dire he had said that his car had been just 2 metres away at that stage. When he was reminded of that in his cross-examination, it was put to him: “What you are trying to do is to pretend that you were too far away to make up which individual was which?” ASP Neiko agreed with that. I do not think that too much should be made of this point. It may be that ASP Neiko had not realized the subtlety of the question. In other words, it may be that he was just agreeing that he had been too far away to identify who was doing what. However, it is still the case that there was this significant shift in his evidence, and leaving aside ASP Neiko’s supposed admission to having engaged in a pretence, the point could still be made that he was trying to distance himself from what he had earlier claimed to have been able to do.

(vii) A number of points were made about the padlocks and the keys for them – apart from the fact that ASP Neiko had not mentioned them in his witness statement. Although photographs were taken, none of them showed padlocks or keys. They were not referred to in the Search List which was prepared. And ASP Neiko had not referred to them in his evidence in the voir dire.

(viii) In addition to the implausibility of the petitioners unpacking and repacking a large consignment of drugs when there was another car close by, ASP Neiko accepted that he did not ask Abourizk about what he saw the petitioners do. That would have been the natural question to ask. The suggestion is that he did not ask that question because he never saw what he claimed he saw.

(ix) It would have been surprising for ASP Neiko to move his car out of the way to let the petitioners’ car pass in view of (a) the intelligence the police had received that a transaction involving drugs was to take place and (b) ASP Neiko’s claim that by then he had seen one or more of the bags or suitcases being unpacked and repacked.

(x) ASP Neiko’s evidence was that when he approached the petitioners’ car, he had asked Abourizk what they were doing there. In his examination-in-chief, he said that Abourizk had said that they were sightseeing. However, in his cross-examination ASP Neiko acknowledged that Abourizk had said that he was looking for land in that area which was for sale. Indeed, he agreed that there was a lot of land for sale in that area. The suggestion was that ASP Neiko had initially omitted to mention what Abourizk had really replied because he did not want to have to admit something which may have turned out to be consistent with Abourizk’s explanation for the petitioners’ presence on the gravel road.

None of these points were considered by the judge in his judgment. He did not even refer to them – as indeed he did not refer to Abourizk’s complaints of ill-treatment at the hands of the police or the theft of his money by the police.

[43] This is, of necessity, very much a thumbnail sketch of some of the problems with ASP Neiko’s evidence. I put to one side a point stressed by Mr Thangaraj – namely that none of the bags or suitcases or their contents were tested for fingerprints. Had that been done, the presence or absence of the petitioners’ fingerprints on them could have implicated or exonerated them. This may be a powerful point in jurisdictions where investigative techniques are sophisticated and investigators have cutting-edge facilities at their disposal. That is not the case in Fiji, and I do not suppose that the judge would have regarded this as a significant point. Having said that, this whole exercise of looking at ASP Neiko’s reliability and credibility as a witness is really beside the point, because the judge must be treated as not having been sure that his evidence on any of the topics except for whether the petitioners’ car had stopped at First Landing and had let Simon out was true. The points made in para 42 above merely illustrate that the judge would have had very good reason to be sceptical of the truth of much of ASP Neiko’s evidence – as the assessors must have been.

The challenge to the judge’s two critical findings

[44] Having dealt at some length with the reasons why the judge might have been unsure about important aspects of ASP Neiko’s evidence, I return to the two reasons which the judge gave for rejecting Abourizk’s account. I deal with each of them in turn.

[45] The stop at First Landing. One of the two reasons the judge gave for disbelieving Abourizk on whether the petitioners stopped at First Landing and let Simon out was the failure of Mr Thangaraj to put his case on this topic to ASP Neiko. The issue arose in this way. Abourizk gave evidence on day 13 of the trial. The judge must have given thought to his evidence overnight, because the next day he asked Mr Thangaraj whether he had put to ASP Neiko that on the way back from Ba they had stopped at First Landing and the third man had left the car. Mr Thangaraj said that he had not, and that that had been an omission on his part. He added:

“ ... it’s difficult in a trial like this with so much evidence to remember to put everything ...”

In other words, Mr Thangaraj was telling the judge that Abourizk’s evidence on whether they had stopped at First Landing and dropped Simon off there had been part of Abourizk’s case, and the judge should not infer from the failure to put that to ASP Neiko that it was a recent addition to Abourizk’s account.

[46] In my opinion, once counsel had made that clear to the judge, that should have been the end of the matter. The failure to put that part of Abourizk’s account was Mr Thangaraj’s fault, as Mr Thangaraj candidly admitted. There would have been no basis for the judge not to have accepted Mr Thangaraj’s word on that topic, and it follows that the judge was wrong to hold that failure to put that part of Abourizk’s case against him.

[47] I should add two things to that. First, Mr Thangaraj also told the judge, in effect, that he had not had to put this part of Abourizk’s case to APS Neiko because the prosecution had known, well before Abourizk gave evidence, what Abourizk’s case was from what Abourizk had said to Inpector Maciu. Inspector Maciu’s evidence was that Abourizk had indeed told him that they had dropped Simon off at First Landing. So the simple fact is that Mr Thangaraj had not needed to put that part of his case to ASP Neiko. Mr Babitu could have asked ASP Neiko about it in examination-in-chief.

[48] Secondly, the remedy for any failure to put this part of Abourizk’s case to ASP Neiko lay in the prosecution’s hands. Mr Babitu could have asked for ASP Neiko to be recalled so that that could be put to him. Indeed, the prosecution did not even have to do that. That is because Mr Thangaraj told the judge (without correcting the stylistic or grammatical errors in the transcript):

“ ... the crowns entitle to say, Neiko’s giving evidence going from here to here. He doesn’t giving evidence of dropping Simon at First Landing and therefore, you can believe Neiko over the Accused. My friend’s entitle to put that.”

But none of this means that the judge was entitled to treat the failure to put this part of Abourizk’s case to ASP Neiko as damaging to Abourizk.

[49] The other reason the judge gave for accepting ASP’s evidence on this topic was that he regarded ASP Neiko’s evidence on the topic as credible. I am at a loss to understand why. I know that it is a common direction to give fact-finders, whether assessors or juries, that just because you disbelieve a witness on one topic does not mean that you have to disbelieve them on every topic. But the parts of ASP Neiko’s evidence on which the judge has to be treated as not having been sure about were not peripheral topics. They went to the heart of the case. Having concluded that he could not be sure about those parts of ASP Neiko’s evidence, I do not think that it was reasonably open for him to say that this part of ASP Neiko’s evidence was credible – at any rate, without explaining why. And to the extent that he did explain why – Mr Thangaraj’s failure to put Abourizk’s case to ASP Neiko – that reason was flawed.

[50] There was another reason why ASP Neiko’s evidence about the petitioners’ car having stopped at First Landing to drop Simon off may have been suspect. As I have said, ASP Neiko knew from what Abourizk had said at the time that Abourizk was saying that they had dropped Simon off. If ASP Neiko had wanted to discredit Abourizk’s account, it would have been easy for him to say that the car did not stop at First Landing at all. That would explain something else. Inspector Maciu went to First Landing the following day ostensibly to look for Simon, but his inquiries were rudimentary in the extreme. He accepted that he had spoken only to a few outside workers for no more than 10 minutes. He did not go to the hotel’s reception to ask the receptionist if the hotel had had anyone – perhaps a Canadian – staying there, perhaps someone who had checked out the previous day. He did not even ask to see the hotel’s register of recent guests. The point made by the defence was that Inspector Maciu was not trying to find out about Simon. He wanted to be able to say that they had looked for Simon, and had not been able to find him, in order to bolster ASP Neiko’s account that Simon had never been dropped off at First Landing. Whether that was a persuasive point was for the judge to consider. He did not do so. He simply said that ASP Neiko’s evidence on this topic was credible, relying – in part at least – on the flawed inference he drew from Mr Thangaraj’s failure, as the judge saw it, to put Abourizk’s case on this point to ASP Neiko.

[51] The implausibility of Abourizk’s account. I did not understand Mr Thangaraj to challenge the reason the judge gave for finding Abourizk’s account to be implausible. His point was that the judge did not balance that against the powerful reasons for regarding the account which APS Neiko gave as equally implausible. None of the matters set out in para 40 above were referred to by the judge in his judgment. The sauce for the goose is sauce for the gander. If the judge held the implausibility in Abourizk’s account against the petitioners, he should at the very least have considered whether any of those matters undermined the prosecution’s case. This argument assumes, of course, that the judge accepted the critical parts of APS Neiko’s. For the reasons I have given, we must take it that the judge did not.

Where does all this leave us?

[52] Once you put to one side – as you must – the judge’s finding that Abourizk had lied about stopping at First Landing and dropping Simon off there, all that was left was the overall implausibility of Simon’s account. To repeat: would people who traffic in very large consignments of hard drugs like cocaine really leave such a consignment with people they hardly knew, even for a short time? In my view, it may have reasonably been open to the judge to reject Abourizk’s evidence on that basis alone. But the difficulty is that he did not reject it on that basis alone. He rejected it because he also took into account the lie he thought Abourizk had told about stopping at First Landing and dropping Simon off there. I have already explained why it was not open to the judge to make that finding.

[53] So the critical question is: if the judge had not taken that finding into account, would he still have found the petitioners guilty? The simple truth is that we just do not know. He may have done. He may not have. We cannot say that he would have done, because his finding that Abourizk was lying in an identifiable part of his narrative would inevitably have coloured the judge’s overall view. The bottom line, therefore, is that, because I cannot say that the judge would have convicted the petitioners if Abourizk’s supposed lie had been taken out of the equation, the possibility that the judge might have acquitted them cannot be discounted. It follows that their convictions have to be quashed. In the circumstances, the petitioners’ appeal against sentence falls away.

Conclusion

[54] For these reasons, I would give the petitioners leave to appeal to the Supreme Court on the basis that a substantial and grave injustice may occur if we do not. In accordance with the Supreme Court’s usual practice, I would treat the hearing of the application for leave to appeal as the hearing of the appeal. I would allow the appeal and quash the petitioners’ convictions. It would then be for the Office of the Director of Public Prosecutions to decide whether to apply for the retrial of the petitioners. I say nothing to encourage or discourage the making of such an application, but in order to maintain the momentum created by the hearing of the appeal, I would order the Director of Public Prosecutions to notify the Court within two weeks, ie by Thursday 12 May 2022, whether he proposes to apply for a new trial, and to lodge an application for an order for a new trial within 7 days after that, ie by 19 May 2022. In the meantime, I would order that the petitioners remain in custody. If the Court orders a new trial, they can then apply for bail to the High Court. If a new trial is not ordered, they must be released.

Orders:

(1) The petitioners’ application for leave to appeal to the Supreme Court is granted.
(2) The petitioners’ appeal against their convictions is allowed, and their convictions are hereby quashed.
(3) The Director of Public Prosecutions must notify the Court by 12 May 2022 whether he proposes to apply for an order for a new trial.
(4) Such an application must be lodged by 19 May 2022.
(5) In the meantime, the petitioners are remanded in custody.

The Hon. Mr. Justice Saleem Marsoof

JUDGE OF THE SUPREME COURT

The Hon. Mr. Justice Buwaneka Aluwihare

JUDGE OF THE SUPREME COURT

The Hon. Mr. Justice Brian Keith

JUDGE OF THE SUPREME COURT