IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 049 of 2011 (Ltka)

STATE

v.

MUSKAN BALAGGAN; and
ELTON XHEMALI

Hearing Dates: 21 – 31 May 2012
Summing Up: 31 May 2012
Judgment: 1 June 2012

Counsel: Ms I. Whippy & Mr. M. Vosawale for State
1st Accused in person
Mr. F. Vosarogo for 2nd Accused

JUDGMENT

[1]	The two accused are jointly charged on count 1 with attempted export of an illicit drug. On count 2, the first accused is charged alone with possession of an illicit drug. The same alleged drug is subject of the two charges. 

[2]	The assessors are unanimous in their opinions that the first accused is guilty on both counts. Two assessors are of the opinions that the second accused is not guilty on count 1. One assessor is of the opinion that the second accused is guilty on count 1.

[3]	I adjourned overnight to consider my judgment. I direct myself in accordance with the law and the evidence contained in my summing up. 

[4]	The evidence against the first accused is that on 26 January 2011, she was prevented from boarding a flight to Melbourne, Australia by the customs officers at Nadi International Airport. Customs officer, Praveen Narayan with the assistance of Nilesh Raj (ATS employee) identified the checked in suitcase of the first accused. When the officers opened the suitcase in the presence of the first accused, they saw clothes containing powdery residues. The first accused denied ownership of the bag. Sgt Prasad arrested the first accused and seized the bag and its contents. 

[5]	The first accused was interviewed under caution by WPC Rounds. In her caution statements, the first accused made admissions and said she acted under threats from one Ramesh and the second accused.

[6]	After the first accused was charged, Sgt Prasad took the seized bag and its contents to Australia for analysis for drugs. The substance found on the clothing inside the bag was first tested using chemicals and then using instruments. The tests revealed the substance was pure cocaine.

[7]	I accept that the substance tested by Agent Olinder and Natalie Hau was the same substance that was found in the first accused's bag at the airport on 26 January 2011. I accept the evidence of Sgt Prasad that he secured the bag and its contents after seizing it. I accept his evidence that the seized items were secured and not hampered with before being tendered in court. 

[8]	I do not doubt the reliability of the scientific tests that were conducted on the substance by Agent Olinder and Natalie Hau. I accept the expert evidence that the substance is pure cocaine and I am satisfied beyond a reasonable doubt that cocaine is an illicit drug. I am satisfied beyond a reasonable doubt that the accused did not have lawful authority to either possess or export an illicit drug. 

[9]	I accept the first accused made the admissions in her caution interview and charge statement. I feel sure her admissions were not obtained under oppression. I feel sure that her admissions are true.

[10]	I do not accept that the first accused acted under duress. Her conduct before and on the date of the alleged offence is not consistent with someone acting under threats. The minor injuries revealed in her medical report (D1) are not consistent with the nature of assaults she claimed to have been inflicted on her by the second accused. 

[11]	I feel sure that the first accused was in possession of an illicit drug on 26 January 2011 and that she knew she was in possession of an illicit drug without a lawful authority. I feel sure that the first accused intended to take an illicit drug out of Fiji and by checking in her luggage containing cocaine for an outbound flight to Melbourne, Australia, she acted beyond mere preparation.

[12]	I am satisfied of the guilt of the first accused on both counts and I convict her accordingly. 

[13]	The evidence against the second accused is entirely circumstantial. The prosecution led evidence from the employees of the Hexagon International Hotel. The second accused arrived at the hotel on 12 January 2011. 

[14]	On 24 January 2011, the first accused approached the manager, Marasio to enquire about an Indian girl who was supposed to have checked in on that day. Shortly after, when the first accused arrived, the second accused came down to the reception and paid for her room. He wanted a room next to his for her but none was available. 

[15]	The following day, 24 January 2011, the second accused reserved a one way air ticket to Melbourne, Australia for 26 January 2011. The reservation was made by Shelvin. Earlier on the same day, Shelvin changed the departure date for the first accused from 25 January 2011 to 26 January 2011. On the morning of 26 January 2011, the second accused accompanied by the first accused went and bought his ticket from Shelvin.

[16]	Around 12 noon on 26 January 2011, the hotel maid, Seiban Bibi saw the first accused with the second accused in his room at the hotel. Tupou the receptionist said both accused checked out at the same time and the first accused paid the remaining room bill of the second accused using her MasterCard. Another receptionist, Katrina said she saw both accused leaving the hotel in different taxis at around 5 pm.

[17]	Around 5.25pm, Tandra Andrews checked in the second accused for Flight FJ 931 bound for Melbourne, Australia. This was the same flight that the first accused checked in as well around the same time. 

[18]	Mobile phone records registered under the names of the first and the second accused shows frequent communication between the two phone numbers while in Fiji.

[19]	Mr Vosarogo in his cross-examination of these witnesses did not suggest that they were mistaken of the identity of the second accused. What he established through his cross-examination is that there was nothing sinister about two foreigners associating themselves at the hotel and the Air Pacific office.

[20]	The second accused elected to remain silent in his caution interview and at trial. That of course is his right and I draw no adverse inferences against him for exercising his right.

[21]	The charge against him has to be considered on the circumstantial evidence led by the State. The evidence of the second accused's association with the first accused between 24 January to 26 January 2011 are compelling. The circumstances and facts upon which the prosecution relies for an inference of guilt have not been discredited. It appears that the majority assessors have been swayed by Mr Vosarogo's submissions that the hotel employees and the Air Pacific agent found nothing sinister or suspicious about the second accused's conduct. I am convinced that the hotel employees and the Air Pacific sales agent gave truthful evidence. The witnesses did not find anything sinister about the second accused's conduct because their perception was based on individual circumstance. The witnesses did not base their perception on all the facts and circumstances. 

[22]	I bear in mind that circumstantial evidence can be powerful evidence, if properly considered. 

[23]	From the unchallenged evidence of association between the first and the second accused immediately before and on the day of the alleged offence, the only rational inference that I can draw is that the second accused was acting in concert with the first accused to take an illicit drug out of Fiji to Australia on 26 January 2011. I feel sure that the second accused intended to take an illicit drug out of Fiji and by checking in at Nadi International Airport for the Melbourne flight on 26 January 2011, the second accused took steps that were more than mere preparation. I feel sure that an inference of guilt is the only rational conclusion that is available on the proved facts. On the circumstantial evidence led by the State, I feel sure of the guilt of the second accused on count 1 and I convict him accordingly. 

[24]	The judgment of this Court is that both accused are convicted as charged. 

Daniel Goundar
JUDGE

At Suva
1 June 2012

Solicitors:

Office of the Director of Public Prosecutions for State
1st Accused in person
Office of Mamlakah Lawyers for 2nd Accused