Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

State v Bagaga - Summing Up [2015] FJHC 127; HAC157.2013S (26 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 157 OF 2013S

STATE

vs

TOMASI BAGAGA

Counsels: Ms. A. Vavadakua and Ms. V. Prasad for State
Mr. J. Savou for Accused
Hearings: 24 and 25 February, 2015
Summing Up: 26 February, 2015

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State Counsel had made a closing submission to you, about how you should find the facts of this case. Defence Counsel had choosen not to make a closing submission to you, on the ground of lack of instruction from his client. However, the right to make a closing submission to you, is the prerogative of the parties, and they are designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in the case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. TRIAL IN ABSENTIA

7. You will notice that from the beginning of the trial on 24 February 2015, Tomasi Bagaga (the accused) was not present in the dock, in the court. On 6 February 2015, the court granted the prosecution's application to proceed in the absence of the accused.

8. Section 14(2)(h)(i) of Fiji's 2013 Constitution reads as follows:

"...Every person charged with an offence has the right – (h) to be present when being tried, unless – (i) the court is satisfied that the person has been served with a summon or similar process requiring his attendance at the trial, and has choosen not to attend..."

9. In a pre-trial conference on 26 September 2013, in the presence of his counsel, the accused agreed for a trial from 23 February to 6 March 2015. He was on bail at the time. On 11 March 2014, he absconded and was never to be seen again. Thus the order to proceed in his absence was made on 6 February 2015. By not attending the trial, the court found that he had voluntarily choosen not to do so. Thus the trial in absentia.

10. However, as assessors and judges of fact, you cannot hold his non-attendance at the trial to his disadvantage. You cannot use his non-attendance to decide against him, or you cannot view his non-attendance negatively. Despite his non-attendance, he still has the right to a fair trial. The burden is still on the prosecution to prove his guilt beyond a reasonable doubt, and that stays with them from the start to the end of the trial. The accused does not have to prove anything, at all. In fact, he is entitled to remain silent, as he has choosen in this case by not attending trial, and require the prosecution to prove his guilt beyond a reasonable doubt. The burden of proof is not on the accused.

4. THE INFORMATION

11. You have a copy of the information with you, and I will now read the same to you:
    

"... [read from the information]...."

5. THE MAIN ISSUE

12. In this case, as assessors and judges of fact, each of you will have to answer the following question:
    
    • (i) Did the accused, on 16 December 2012, at Sector 3 Lomaivuna, Naitasiri in the Central Division, without lawful authority, cultivated 5.5 kilograms of cannabis sativa, being an illicit drug?
      

6. THE OFFENCE AND IT'S ELEMENTS

13. For the accused to be found guilty of "unlawful cultivation of an illicit drug", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) without lawful authority

(iii) cultivated

(iv) an illicit drug.

14. The key word in the above offence is the verb "cultivated", which is the past tense of the verb "cultivate". In the Oxford Advanced Learner's dictitionary (6th edition, 2002) "cultivate" means "to prepare and use land for growing plants or crops" or "to grow plants or crops". The offence was aimed at those cultivating an "illicit drug". In the Illicit Drugs Control Act 2004, "an illicit drug" means "any drug listed in schedule 1 of the Act. In schedule 1 of the Act, any "cannabis plant" (whether fresh, dried or otherwise), "cannabis seed", "cannabis oil", "cannabis fruit" or "cannabis and cannabis resin" are classified as illicit drugs. Another word for a cannabis plant is a marijuana plant, or indian hemp plant.

15. So, if a person cultivates any cannabis plant in Fiji, without any lawful authority, that person is committing an offence of "cultivating an illicit drug", contrary to section 5(a) of the Illicit Drugs Control Act 2004. Proof of the lawful authority lies on the accused. In other words, the accused must prove to the State, what lawful authority was given to him, to cultivate a cannabis plant (ie. marijuana, cannabis sativa or Indian hemp), if he's found to be cultivating a cannabis plant. If he doesn't provide that proof, then he's violating the law.

7. THE PROSECUTION'S CASE

16. The prosecution's case was simple. On 16 December 2012, the police (ie. Cpl 882 Basilio – PW1) received a report at Vunidawa Police Station that Tomasi Bagaga was cultivating marijuana plants at Lomaivuna Settlement. He called for police transport assistance from Suva. PC 4650 [PW2] and Corporal Filipe arrived from Suva and went with PW1 to Lomaivuna. They went to Tomasi Bagaga's house and met him. PW1 told Tomasi why they were there, and showed him a search warrant.

17. Tomasi Bagaga then admitted to them he was planting marijuana (cannabis plants) on his farm. He then led the police to his farm, and showed them 23 plants of cannabis sativa (marijuana). The police and Tomasi uprooted the 23 plants, and took them to Vunidawa Police Station. He was caution interviewed by WPC 3623 [PW3], at Vunidawa Police Station, between 7.10pm and 8.50pm, on the same day (ie. 16 December 2012). After the interview, he was taken back to his home by the police. In his caution interview, Tomasi admitted the allegation against him.

18. On 20 December 2012, WPC 4235 [PW5] took the above 23 plants for analysis at the Koronivia Research Station. On the same day, the government analyst, Miliana Cokanavula [PW6] analysed the plants and found them to be Indian hemp plant, botanically known as cannabis sativa. They weighed a total of 5.5kg. She submitted her certificate as Prosecution Exhibit No. 2. Tomasi was later charged for "unlawful cultivation of an illicit drug", contrary to section 5(a) of the Illicit Drugs Control Act 2004. Because of the above, the prosecution is asking you, as assessors and judges of facts, to find him guilty as charged. That was the case for the prosecution.

8. THE ACCUSED'S CASE

19. On 26 July 2013, in the presence of his counsel, the information was put to the accused. He pleaded not guilty to the charge. In other words, he denied the allegation against him. On 24 February 2015, on the first day of the trial proper, the information was again read in court, in the presence of the accused's counsel, although the accused was absent. The court entered a not guilty plea on behalf of the accused, in the interest of justice.

20. At the end of the prosecution's case, a prima facie case was found against the accused, and he was called upon to make his defence, although he was not present. His counsel was present. The options available to the accused was read in court. Because he was absent, he was taken to have exercised his right to remain silent.

21. Although the accused choose to absent himself from his trial, and he was deemed to have exercised his right to remain silent, when called upon to make his defence, his view on the matter could be obtained from what he told the police, when caution interviewed on 16 December 2012, at Vunidawa Police Station. He was asked a total of 42 questions by WPC 3623 [PW3] and he gave 42 answers. He was given the standard caution and his legal rights were explained to him. In his caution interview, he admitted the allegation against him. You must consider his caution interview statements carefully. In any event, he had pleaded not guilty to the charge when it was put to him on 26 July 2013, and as such, he is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

1. ANALYSIS OF THE EVIDENCE

(a) The Evidence Against Tomasi Bagaga:
22. The State's evidence against Tomasi Bagaga are two-fold. First, was the evidence of Corporal 882 Basilio [PW1], PC 4650 Eroni Seruvatu [PW2] and WPC 4235 Sera Navisa [PW5]. PW1 and PW2 went with Tomasi Bagaga to his farm, and assisted him uproot his 23 marijuana plants, and they handed over the same to PW5 at Vunidawa Police Station. Tomasi verbally admitted to PW1 and PW2 that he was cultivating marijuana. The second evidence against Tomasi Bagaga is his alleged confessions in his police caution interview statements, Prosecution Exhibit No. 1. We will now discuss the above evidence in detail.

(b) PW1, PW2, PW5 and PW6's Evidence:
23. On 16 December 2012, Corporal 882 Basilio [PW1] said he received a report at Vunidawa Police Station that Tomasi Bagaga was cultivating marijuana (cannabis sativa) at Lomaivuna Settlement. He called for transport assistance from the CID Headquarters in Toorak, Suva. They despatched a police vehicle and officers to assist PW1. PW1 went with PC 4650 Eroni Seruvatu [PW2] and Corporal Filipe to see Tomasi Bagaga. They went to his house at Lomaivuna, and told him why they were there. They showed Tomasi a search warrant. Tomasi Bagaga then admitted to them he was planting marijuana, and showed them his plants. There were 23 plants in total. Later PW1, PW2 and Tomasi Bagaga uprooted the 23 plants, and later took it to Vunidawa Police Station and handed it over to WPC 4235 Sera Navisa [PW5], the police investigation officer. On 20 December 2012, PW5 despatched the 23 plants to Koronivia Research Station for analysis. On the same day, government analyst Miliana Cokanavula [PW6] analyzed the 23 plants, and found them to be cannabis sativa, an illicit drug, and it weighed 5.5 kg. PW6 submitted the Certificate of Analysis as Prosecution Exhibit No. 2. The sum total of PW1, PW2, PW5 and PW6's evidence were as follows:

(i) The 23 plants were uprooted from Tomasi Bagaga's farm on 16 December 2012 by PW1, PW2 and Tomasi Bagaga himself;

(ii) Tomasi Bagaga admitted to PW1 that he was planting the 23 plants;

(iii) The 23 plants were hand over to PW5 at Vunidawa Police Station on 16 December 2012;

(iv) PW5 took the 23 plants to PW6, the government analyst, on 20 December 2012, for the same to be analyzed;

(v) PW6 certified that the 23 plants were cannabis sativa (marijuana), and they weighed 5.5 kg;

(vi) Tomasi Bagaga provided no lawful authority as to why he was planting the same.

(c) Tomasi Bagaga's Police Caution Interview Statements [Prosecution Exhibit No. 1]:
24. On 16 December 2012, at Vunidawa Police Station, between 7.10 pm and 8.50 pm, PWC 3623 Taraivi Vosoti [PW3] caution interviewed Tomasi Bagaga in the English language. The standard caution was given to Tomasi. He was given his right to counsel. He was given the standard rest and meal breaks. He was asked a total of 42 questions and he gave 42 answers. The caution interview was witnessed by SC 4033 Amani Tavitani [PW4]. PW3 and PW4 said, they never assaulted, threatened or made promises to Tomasi Bagaga before, during and after the caution interview.

25. In Questions and Answers 14, 15, 16, 17, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32 and 35 of Prosecution Exhibit No. 1, Tomasi Bagaga admitted cultivating 23 plants of cannabis sativa (Indian hemp or marijuana) on 16 December 2012, at Lomaivuna in the Central Division. The burden of proving that he was doing so legally was on him (section 4(2) of the Illicit Drugs Control Act 2004). He provided no evidence to show he was cultivating the 23 plants lawfully. So, obviously he had no lawful authority to do the same. Under the Illicit Drugs Control Act 2004, cannabis sativa plants are illicit drugs. If you find that Tomasi Bagaga actually made the statements contained in his police caution interview statements [Prosecution Exhibit No. 1], and that he made the same voluntarily and out of his own free will, and they are true, you are entitled to rely on his alleged confession to ground a possible conviction against him. It is a matter entirely for you.

(d) Totality of Prosecution's Evidence:
26. You will have to consider the evidence of PW1, PW2, PW5, PW3, PW4 and PW6's evidence together. Then, you will have to consider Tomasi Bagaga's alleged confession. If you accept the prosecution's witnesses' evidence, then you will have to find the accused guilty as charged. If you don't accept the prosecution's witnesses' evidence, then you will have to find the accused not guilty as charged.

27. Your possible opinions are as follows:

(i) Unlawful cultivation of illicit drugs : Accused : Guilty or Not Guilty

28. You may retire to consider your verdict. Once you've reach your decision, you may tell the court clerk, so that we can reconvene to receive them.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.