Magistrates Court of Fiji

5. EVALUATION OF EVIDENCE

5.1 PW1 PC Etonia Vuli is the police officer who was the Officer-in-charge of the raid that resulted the arrest of the accused and the substance in question.

5.2 According to this witness, on the 25^th September 2019 at about 2000 hrs he has received instructions to go and raid a house at Nawaka for suspected dealing of illicit drugs. The witness with a team of police officers that comprised of PC Talemaitoga, PC Vilikesa, the Dog Unit Corporal Sailosi, PC Semisi has gone to the accused Joeli’s residence with a search warrant. Upon arrival at the said house this witness has shown the search warrant to the 1^st accused Joeli and has explained that they were going to search his house. The said Search Warrant was tendered to court marked as Pr. Ex1.

5.3 When the police team has entered the house apart from Joeli, his wife Tulia and some of their friends have been present in the house. However, the witness knew that it was Joeli’s residence as he has shown around the house to the police.

5.4 After the search warrant has been shown to Joeli, the police team has conducted the search and has found some smoking apparatus, 07 sachets of dried leaves believed to be Marijuana and 04 clear plastics containing white crystals. The witness has entered all that in the Search list and Joeli has acknowledged it. The said Search List was tendered to court marked as Pr. Ex2.

5.5 This witness explained that there were 3 syringes and 4 test tubes among the smoking apparatus they found at Joeli’s house and stated that they all were handed over to PC Saumaki.
5.6 The 1^st Accused questioned this witness at cross examination as to why photographs were not taken when those items were found - to show that they actually belonged to him, to which the witness replied that their procedure was only to mention the items in the Search List and to get it signed by the accused. Then the accused pointed out that there was no mention about 3 syringes in the Search List but it only mentions ‘Smoking Apparatus’, to which the witness stated that he has shown all the items to the accused and that they had acknowledged it by signing it. However, it is judicious to note that the police officer should not have just mentioned ‘Smoking apparatus’ in the Search List, instead he should have mentioned therein each and every item they have found at the accused’s house. It is also not clear how the police officer had decided that a syringe which in normal course used to inject substance into body, as a smoking apparatus. It is surprising that he has just expected the court to believe his word of mouth when the document he has prepared at the time of the arrest does not really support his oral testimony.

5.7 Both the accused through cross examination have challenged the claim of the prosecution that a search warrant has been shown to them before the search commenced. This witness although throughout his examination has only stated about showing the search warrant to the 1^st accused, has stated for the 1^st time when he was questioned by the 2^nd accused that he has shown it to both the accused. When asked about the time it was shown to the lady, he has stated “I informed Ms. Tulia and Mr. Joeli that we are going to search the house and they allowed me to enter the house”, which does not actually indicate any showing of a search warrant.

5.8 When this officer was questioned by the 2^nd accused about the place in the toilet from where, the things were found, he, being the Officer in charge of the raid has replied “I was not aware”, which is not really acceptable from the Officer in charge.

5.9 Further, this witness has stated that there was ‘no money recovered from the house’ at the time of the search. However, it is noted that on the 23^rd of October 2019 after the prosecution closed their case, when the 1^st accused requested for a court order for the $1250, the money seized from his house to be released to his wife, the 2^nd accused since she needed the said money to settle the house rent, water bills etc., the prosecution has agreed to release the money, ‘as the cash was not necessary to be withheld any longer’. This shows the claim of PW1 in his evidence that there was no money taken into police custody was wrong.

6.1 PW2 PC 5985 Talemaitoga is another officer that has accompanied PW1 PC Etonia in the raid at the accused’s house and he too has witnessed PW1 going in with the search warrant and showing it to Joeli Durusolo, who is the owner of the house and to his wife who was with him.

6.2 PW2 was the police officer who had detained all the people in the house in one corner. According to him, there had been 7 people other than Joeli and his wife, detained by him in the living room.

6.3 While this witness has been detaining the other people in the living room, he has seen how PC Etonia (PW1) together with the owner of the house, Cpl Selosi and PC Vilikesa started the search from the bed room and how they proceeded from there to the wash room.
6.4 This witness stated that when the search was conducted in the washroom, he was standing just 1-2 feet away and that Cpl Sailosi has found a clear small box.

6.5 He has been informed by PC Vilikesa that the box contained 7 plastic sachets and 4 small clear plastics in it. This witness has not mentioned to court anything about the Smoking Apparatus mentioned in the Search List.

6.6 A question was put to this witness too by the 1^st accused about the exact time when the search warrant was shown to the accused, to which he replied that he has seen PC Etonia showing it to the accused when they have arrived at accused’s house and were standing beside the vehicle.

6.7 And when the 1^st accused questioned as to why the police did not photograph the box that was found in his house, even though they have taken photos of his passport and the Driving Licence, the witness stated that he did not know why the officers who found the box had not taken photos.

7.1 PW3 PC 5974 Vilikesa also confirmed that he has proceeded in a police vehicle to the accused’s house at Tramline, Nawaka Settlement on the 25^th September 2019 with a police team.

7.2 This witness stated to court that when the police team went to Tramline, they approached the house of Joeli and his wife and before the team went inside PC Etonia has shown the search warrant to the accused.

7.3 According to him when the police team went in, he has waited outside in the porch. After telling the people that were on the porch to go inside, they have searched outside the porch.

7.4 Thereafter, he has gone inside and has assisted PC Teleitoga, PC Semisi and Cpl Sailosi in the search in the bedroom.

7.5 While searching the bedroom this witness and the others have found some smoking apparatus that were in a cement block in the bedroom and those items have been given to PC Semisi. This witness has also explained that the smoking apparatus were 3 syringes and 4 glass tubes in a Sunglass case.

7.6 After the search in the bedroom this witness has continued to search the Living room where the accused and the others were waiting, but nothing has been found from the living room. Thereafter, this witness and Cpl Sailosi have proceeded to search the toilet. However, it has been Cpl Sailosi who has seen a small clear box of a thumb pin packet wrapped in a clear plastic behind the commode. It has contained 7 sachets of dried leaves wrapped in aluminium foil and 4 white clear plastics containing Meth. After picking it up they have come out of the toilet and have handed it over to PC Semisi.

7.7 Through the cross examination of this witness by the 1^st accused it has been revealed that when the search commenced the police officers have gone into the house first followed by the dog unit. This witness has been waiting outside at the porch. Only after the police canine dogs and the other officers have already searched the house and had not found the box, this witness who had been waiting outside has managed to go in and find the box together with Sailosi.
7.8 Also, it has come to light that as soon as Cpl Sailosi found the box behind the commode he has handed it over to this witness, who has immediately handed it over to PC Semisi even without opening it. He emphasised that in the process the box has not been opened until it was handed over to PC Semisi, who has never given evidence in court. Cpl Sailosi, who seems to have found the clear plastic box from behind the commode also, has not given evidence in court. On the contrary, PW3 who has been waiting outside while the other police officers and the police dogs have been searching the house and who confirmed that the box was never opened until it was handed over to PC Semisi, has vouched in court that there were 7 sachets of dried leaves wrapped in aluminium foil and 4 white clear plastics containing Meth inside the small plastic box that has been found by another officer, which does not safe enough to be relied upon while deciding this case.

7.9 It was further revealed at the re-examination that this witness has come to understand that there have been 7 sachets of dried leaves wrapped in aluminium foil and 4 white clear plastics containing Meth only at the Summing up briefing that had been at the residence of the accused. According to him, even though the box has been uplifted earlier, it has never been opened until then and it has been in the custody of a police officer who has never given evidence in court.

8.1 PW4 WPC 5549 Vivian who has recorded the statement of 2^nd accused at the caution interview has given evidence next and has tendered to court the statement she recorded marked as Pr.Ex3. She has further stated to court that the 2^nd accused had stated in her statement that she lives in the given address with her partner; son aged 3 years and 2 of her friends. Emphasis on this particular piece of evidence confirms that the two accused in this case are not the only adults that were present in the house who were capable of placing the little plastic box behind the commode in the toilet.

8.2 This witness’s evidence has not been challenged through cross examination.

9.1 The next witness PW5 PC 5449 Saumaki is the police officer who has recorded the statement of the 1^st accused and also has escorted the drugs to Suva for analysing on the 26^th September 2019. He has explained in length the process on how he has escorted the 7 sachets of dried leaves and 4 small clear plastic bags containing crystal substance and how he filled the Govt. Analysis Report before handing them all over to Ms. Venti Chandra at the Scientific Laboratory.

9.2 He stated to court that when he received the report after the drug analysis was completed, it has confirmed that the contents in the 7 sachets were in fact Cannabis Sativa weighing 5 grams, whereas the crystal light substance were Methamphetamine weighing 0.113 grams. He tendered to court the Drug Analyst Report marked as Pr.Ex.4.

9.3 After returning to Nadi police station this witness has continued with recording Joeli’s statement, which he tendered to court marked as Pr. Ex5.

9.4 None of the accused has spent any time on cross examining this witness.

10.1 Thereafter, the prosecution has closed its case and the accused have moved to obtain Legal Aid’s assistance before deciding their next step.

10.2 On the 21^st of January 2020, the 1^st accused upon opting to give evidence under oath, commenced his evidence stating how he and his wife were arrested by two police officers by the side of the road when they came outside of their house to go to Namaka. The officers have not been in uniform and have asked the accused to go to the police station as they have received some information about the accused selling drugs.

10.3 According to the 1^st accused, after he and his wife were taken by the police officers to the police station, they have been questioned at the crimes office and thereafter the police have queried them whether they could search their house.

10.4 Subsequently, the police have taken them back home in Nawaka and the search has commenced. However, no search warrant has been shown to them. According to him there have been about 18 police officers at his house who gathered all the 9 people that have been there at home at that time including him and his wife, to the living room. Then the police have brought the police kennel dogs to search all parts of the house but the police have not said that they found anything, after the canine dogs went through the house and finished the search.

10.5 Then the police officers have started to search the house while the 1^st accused was accompanying them right throughout the search. When the police officers too have not managed to find anything from the house through the search, the police officers have gone out. However, after 10 minutes when PC Semisi has called the 1^st accused to come and sign the Search List, he has seen for the 1^st time that there were 7 packets of Marijuana, 4 small plastics, smoking apparatus and 6 mobile phones mentioned in the said list.

10.6 Only when the Search List was being shown to the accused the police officer has explained to him about the search warrant but while doing so, the document that was shown to the accused was the Search list, but not a search warrant.

10.7 When the accused was shown the Search list, the items in it too have been shown to the accused. When the accused has protested that there was nothing found in his house, the police have forced him to sign the list. One of the police officers has punched him on the back of his head. The police have not told him at that time from where in his house they have found those items and they have said “We will talk in the police station”. Only when they have charged him at the police station, they have told him that they have found it in the toilet. It is significant to note that the accused has affirmed that he was forced only once by the police and that was before he signed the search list.

10.8 Through the cross examination of the accused the prosecution seem to have admitted that the police have first questioned the accused at the police station before the police team proceeded to their house to search it. It is also confirmed that the house of the accused has only one bedroom, one bathroom, one toilet and a combined kitchen & living room.

10.9 He confirmed again that it was the police canine team that searched the house first and vehemently denied the suggestion that the police have found the 7 sachets of Marijuana packed in a container from his toilet.

He stressed again that there were no drugs found from the toilet. The accused went on to say that the police only showed the container that was taken out of the pocket of one of the officers and stated to him about the contents of it, but actually they opened the box at the police station.

10.10 Through cross examination too, the accused has repeated that he only signed the Search list because the police officers forced him, threatened him and when one of them punched him on the back of his head. The accused has admitted that at the Caution Interview, he has chosen to remain silent with the intention of giving evidence in court.

11.1 Lastly, the defence witness Seinimili Gucake who is a friend of the younger sister of the 2^nd accused gave evidence stating to court that she has stayed in the accused’s house for 2-3 days before the police team came to search the house on the 25^th September 2019. The witness has been told that the police were searching for illicit drugs and all the people in the house, including Tulia (2^nd accused), her sister Maria and their other friends were made to lean against the wall. While they were standing near the wall the police dogs have sniffed at them and then a lady officer has taken them to the washroom and stripped searched each one.

11.2 According to this witness too, the police dogs or the police officers have not found anything in the house. But all the people have been told to pack their clothes and to change, in order to go to the police station. After this witness has been kept in the police station that night, she has been released to go on the next day.
11.3 She admitted again at cross examination that she has spent 2-3 days at the accused’s house and that they all were brought to the living room at the time of the search.

11.4 When it was suggested that whatever the police have found on that day, have been shown to Joeli and Tulia, the witness replied, “Nothing was found that day”.

11.5 It seems that the prosecution was trying to show to court through this witness that there was a possibility that she might not have seen what was found in the house or heard what was said to the accused as they were made to stand in the living room apart from the accused. However, it is vital to note that the house of the accused is a very small house that has only one bedroom, one toilet, one bathroom and a combined kitchen-living room.

11.6 At this point I draw my attention to PW2 who stated in his evidence that he has seen how PC Etonia (PW1) together with the owner of the house, Cpl Sailosi and PC Vilikesa started the search from the bed room and how they proceeded from there to the wash room while he has been detaining the other people in the living room. He has also stated how he was just standing 1-2 feet away when the search was conducted in the washroom and how he saw Cpl Sailosi finding a clear small box from behind the commode. If PW2 who was standing in the living room with the detained people could see how the small box was retrieved from behind the commode it is a question how the detained people including the defence witness too could not see what was going on in the toilet.

12.1 It is important to keep in mind at this point that there is no dispute among the parties regarding the date & time and the place of the raid and most importantly, about the identity of the accused persons. The accused have not wasted any time at all challenging the contents of the Drug Analyst report and the findings in it. Therefore, there is no dispute that the substances that were examined by the analyst were in fact illicit drugs.

12.2 However, the accused have challenged the prosecution’s claim that the drugs were found in the exclusive possession of the accused. Therefore, the only fact that the prosecution must prove is that the drugs were found in the exclusive possession of the accused. The fact whether the accused had any lawful authority to possess those drugs will arnly if t if the prosecution manages to prove the ‘Possession’ beyond reasonable doubt.

12.3 Therefore, the only contested element in this case is the Posses/b>.
1212.4 TThus, it is prudent to first look into the meaning of possession with regard to drug related ofs.

13. The word Possession has not defined in the&#160 Illicit Drugs Control Act 2004. However, Part 2 of the Crimes A 44 of 2009 explains thns that "possession", "be in possession of" or "have in possession" includes:
    1. not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person; and
    2. 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.
       
14. In the case of Laisiasa Koroivuki v The State; ( AAU 18 of 2010; 5 March 2013) [2013] FJCA 15, it was held (per Goundar JA) that the word " psion " should be defi defined to be in the following manner:

In absence of a statutory definition, the court can be guided by the Englishon Lainition of the word “possession". "Possessisession" is proven if the accused intentioentionally had the drugs in his cal custody or contrcontrol to the exclusion of others, except anyone who was acting in concert with him in the alleged offence ert [2001] UKHL 37; [2002] 2 AC 545). Possession is aroven if the accused ined intentionally had the substance in some place to which he either alone or jointly with some other person acting in concert with him haess aght go to get physically or control it, (Lambert,bert, Supr Supra).