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State v Draiva [2015] FJHC 191; HAC43.2014 (17 March 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 43 OF 2014

BETWEEN :

STATE

AND:

IOWANE APISAI DRAIVA,
TREVOR MERVYN TAMBLYN

Counsel : Mr. Singh. A. for State,
The First Accused is in person,
Ms. Malimali. B. for the Second Accused Person,

Date of Hearing : 3rd – 12th of March 2015
Date of Summing Up : 16th of March 2015,
Date of Judgment : 17th of March 2015.

JUDGMENT

1. The two accused persons are charged with one count of Importation of Controlled Chemicals contrary to section 6 (b) of the Illicit Drugs Control Act, 2004. The particulars of the offence are that;
   

"Iowane Apisai Drava and Trevor Mervyn Tamblyn between 26th day of March 2014 and 1st day of April 2014 at Nadi in the Western Division without lawful authority imported into Fiji, a controlled chemical namely, (Pseudo) Ephedrine weighting 584.4 grams and being reckless as to whether that chemical is to be used in or for the commission of an offence".

2. Both accused persons pleaded not guilty for this offence; hence this action was set down for hearing from 3rd of March to 12th of March 2015. The Prosecution called fifteen witnesses and tendered twenty four prosecution exhibits during the cause of the hearing. At the conclusion of the prosecution case, the first accused person and the learned counsel for the second accused informed the court that they do not wish to give evidence on oaths or call any other witnesses for the defence. Subsequently, the learned counsel for the Prosecution made his closing submissions, which was followed by the closing submissions of the first accused person and the learned counsel for the second accused person. I then delivered my summing up to the assessors.
   
3. The three assessors have returned with a divided verdict for the first accused person. Two of the assessors found the first accused person is guilty for this offence, while one assessor found him not guilty for the same. However, the three assessors have returned with unanimous guilty verdict against the second accused persons. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
   
4. Having considered the evidence presented during the hearing, respective closing submissions of the prosecution and the defence, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
5. Section 6 (b) of the Illicit Drugs Control Act ( hereinafter referred as The Act) states that;
   

"Any person who without lawful authority imports, exports, manufacture, possesses, or supplies any controlled chemical or controlled equipment –

(a)........

(b) Being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5;

6. Section 5 of the Illicit Drugs Control Act states that;
   

"Any person who without lawful authority-

1. Acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drugs, or
   
2. Engaged in any dealings with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import, or export of an illicit drugs,
   

7. Accordingly, the main elements of the offence of importation of controlled chemicals are that;
   
   1. The two accused persons,
   2. Without lawful authority,
   3. Imports any controlled chemicals,
   4. Being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5,
      
8. It appears that the prosecution has alleged that the two accused person have acted together to commit this offence. If a criminal offence has committed by two or more persons, each of them may have played a different part, but if they acted together as part of a joint plan or agreement to commit the offence, they are each guilty. The words 'plan' and 'agreement' do not denote that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing needs to be said at all. It can be made with a nod and a wink, or knowing look or it can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence and played his or her part in it as to achieve that aim.
   
9. The onus of proving the existence of "lawful authority" lies upon the accused persons pursuant to section 4 (2) of the Illicit Drugs Control Act, where it states that;
   

"In any proceedings under this part, proof of lawful authority lies upon the accused person".

10. According to the section 2 of the Act, if someone brings or cause to be brought a control chemical listed in schedule 2 of the Act into the Fiji islands is considered as an importation of control chemical.
    
11. It appears that the particulars of the offence have stated the control chemical is (pseudo) ephedrine. It appears that the word "pseudo" has been stated as a parenthesis before the word of ephedrine in the third line of the particulars of offence. Oxford Advance Leaners Dictionary explains "parenthesis as a word, sentence, etc. that is added to a speech or piece of writing, especially in order to give extra information. In writing it is separated from the rest of the text using brackets, commas or dashes". Accordingly the parenthetical word of "pseudo" stated within bracket before the word of "ephedrine" denotes that the alleged imported controlled chemical is "ephedrine" however it could be "pseudoephedrine" as well.
    
12. Schedule two part 1 of the Illicit Drugs Control Act has listed ephedrine and pseudoephedrine as controlled chemicals.
    
13. Accordingly, it is the onus of the prosecution to establish beyond reasonable doubt that Iowane and Trevor acting in join enterprise or in common intention, imported ephedrine or pseudoephedrine weighting 584.4 grams and were reckless as to whether that chemical is to be used in or for the commission of an offence under section 5 of the Act.
    
14. The prosecution presented evidence in the forms of direct, circumstances, documents and experts' evidence to prove their case beyond reasonable doubt.
    
15. The Prosecution presented evidence that Iowane and Trevor went to the airport together with Praveen to collect the parcel on 31st of March 2014, however they had to turn back due to the non-availability of Iowane's TIN letter. Again on 1st of April 2014, Iowane and Trevor went to the airport together to collect the parcel from Carpenter's Freight centre. Iowane went alone into the Carpenter's Freight centre. He was present during the examination of the package by the custom officer Sami and Shivneel. Accordingly, it appears that Trevor was with Iowane when he went to collect the parcel on both occasions. He actually first went to Iowane's place from there he accompanied Iowane to the airport on 31st of March 2014. In view of these evidence, I am satisfied that Trevor and Iowane were acting in joint enterprise to collect the parcel.
    
16. The evidence confirms that they both knew about the parcel. Parveshni Lata stated in her evidence that Trevor told her that the parcel was for him and it contains drugs. I am satisfied with the evidence of Parveshni Lata where she specifically stated the conduct of Trevor in the evening of 1st of April 2014. The learned counsel of the second accused person tried to discredit the credibility of her evidence by challenging the consistency of her evidence given in the court with the statement she made to the police. However, she gave explanations for these inconsistencies. The learned counsel questioned her that she has not told the police in her statement that the parcel contains drugs and only she has stated tablets. However, the statement of her confirms that she has told the police that the parcel contains with tablets and they are drugs. Moreover, she said in her evidence that Trevor told her that he will sell the drugs, which was also questioned by the learned counsel. She explained that she told the police that he told her that he will do business which is the same meaning of selling.
    
17. The first Accused person in his caution interview sated that he was not aware of the contain of the parcel. However, he has given contradictory answers to Custom Officer Sami when he was questioned about the parcel. He admitted that Trevor sent Robin a parcel before and he sent it back to Australia as per Trevor's request. He further explained in his caution interview about his relationship and interactions with Trevor before this incident. In view of these evidence, I am in a position to positively form an inference that the first accused was aware of the illegal substance contained in that bottle of powder.
    
18. The Principle Scientific Officer admitted that the United Nation Office of Drugs and Crimes' manual has stated that the colour presumptive test is not sufficient to identify the drugs. She further stated that the same manual has recommended the efficiency of the presumptive test as it maximise the probability of a true result and minimise false positives. She explained the procedure she adopted of testing of powder. She confirmed that based on her presumptive test, the powder contains either ephedrine or pseudoephedrine. She admitted that she did not do a purity test in order to determine the percentage of ephedrine or pseudoephedrine in the powder. However, she stated that according to her opinion based on the rapid and strong colour change during the test, the powder contains high concentration of ephedrine or pseudoephedrine. It is not necessary to prove that the powder contain exactly 584.4 g as stated in the particulars of the offence. The expert opinion given by the Principle Scientific Officer sufficiently explained and proved that the powder contains high concentration of controlled chemicals.
    
19. In view of section 5 of the Act, it appears that if any person without lawful authority acquires or possesses or engaged in any dealing to sell any controlled chemicals is an offence. Accordingly, if two accused persons or one of them acquires or possess or engaged in any dealing to sell this controlled chemicals subsequent to its importation into Fiji, will commit an offence. Parveshni Lata stated in her evidence that Trevor told her that the parcel was for him and he will sell them. Accordingly, I am satisfied that the both accused were reckless as defined under section 21 of the Crimes Decree as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5.
    
20. Having considered the summing up, which I delivered and the reasons I set out above, I do not find any cogent reason to disagree with the majority verdict of the assessors in respect of the first accused person and the unanimous verdict of the assessors in respect of the second accused person.
    
21. I accordingly find the first accused Mr. Iowane Apisai Draiva and the second accused Mr. Trevor Mervyn Tamblyn are guilty for the offence of Importation of Controlled Chemicals contrary to section 6 (b) of the Illicit Drugs Control Act, 2004 and convict them accordingly.
    

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
17th of March 2015

Solicitors : Office of the Director of Public Prosecutions
The first accused person,
Pacific Chambers, Counsel for the second accused person.