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State v Moore [2025] FJMC 55; Criminal Case 100 of 2018 (28 January 2025)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CRIMINAL JURISDICTION

Criminal Case No. 100 of 2018

The State –v- Zoe Leila Maharaj Moore

For the State: Sgt. Cerei
For Accused: In person

JUDGMENT

1. The Accused is charged with one count each of Unlawful Possession of Illicit Drugs contrary to section 5 (a) of the Illicit Drugs Control Act 2004.
   
2. It is alleged that on 12^th day of February 2018 at Sigatoka the Accused, without lawful authority, had in her possession 0.2 grams of Methamphetamine, an illicit drug.
   
3. The Accused was arraigned on 14^th February 2018. The Accused subsequently pleaded not guilty to the charge and so the matter to proceeded to Hearing.
   

The Evidence for the State

4. Prosecution Witness 1 (PW1) is PC Paulo of Sigatoka Police Station. On 12^th February 2018 at 2.15am, he recalls he was on duty at Mataqe conducting snap check. He stopped a vehicle driven by the Accused and requested for her license but she said that she did not have it with her. He then booked her for failure to produce license and excessive lamps on vehicle as they were colored. He has also seen the Accused prior to this incident. Upon booking her, he then discovered her name as Zoe Maharaj. He saw a passenger was sitting in the front passenger seat. While serving the Accused with the Traffic Infringement Notice he noted a bag at the rear passenger seat and asked the driver to whom did the bag belonged to. She told him it was hers. He requested the driver to open the bag. When she opened the bag, he noticed a black pouch inside the bag. He then took the black pouch, opened it and noticed three (3) rolls of cigarette with a clear plastic of substances believed to be methamphetamine. He escorted these items and the driver to the Sigatoka Police Station and handed them over to DC Benedito.
   

In cross-examination, he said two other officers were searching the boot. He cannot recall what happened to the passenger of the vehicle.

5. Prosecution Witness 2 (PW2) is DC Benedito of Sigatoka Police Station. He received the Accused from PW1 on 12^th February 2018 while being on duty at the station. He also received a zip lock plastic containing white crystals believed to be methamphetamine which he kept and took to the Forensic Lab in Suva for analysis. After the items were analyzed, he then exhibited the items and the results of the analysis which contained 3 pages.
   

In cross-examination, while not being able to confirm the exact time he received the items from PW1 that particular morning, he can confirm that he kept it with him from about 3am until he had to take it to be analyzed at 11am that day.

6. That was the evidence for Prosecution.

7. The following documents were tendered into evidence: -

- PE1 – Record of Interview of the Accused
- PE2 – Government Analyst Report (3 pages)
- PE3 - Record of Interview for James
- PE4 - Statement of James

The Case for Defense

8. Defense Witness 1 is the Accused (DW1). On the day in question, she hired James Rao who took her and another passenger Amit Prasad aka Amanda with his 3 bags of clothes. They were headed to Nadi and were to take a break first in Korotogo. She sat in the front passenger while Amanda set at the back. When they reached service station in Sigatoka she changed seats with James, the driver. Before they reached the Sigatoka Hospital, Amanda went into another car and told her to tail the car that she was in. As they proceeded, the Accused was stopped by the police at Kulukulu where she was pulled over and asked to show her drivers license. She did not have the license with her and so the police went to check something while they were seated in the car. During this time, she tried to change seats with James when three police officers suddenly began searching the car. Two of the officers searched the car while the third officer searched her and James. She saw that the two officers found a glittering purse and Amanda’s passport on top of her laptop bag. The police then found marijuana in her laptop bag. The police also found a syringe and needle in James pocket. They were then taken to the Sigatoka Police Station. The man in Amanda’s car came to ask for the key to their car but the police said they could not access it. She recalls that she was in charged for this offence while James was released. She then told police about Amanda and her prior convictions but they did not do anything about it.
   

In cross-examination, she states that the crystal like substance was not hers and that it was not inside the laptop bag.

9. Defense Witness 2 is James Rao, 49 years driver of Nasinu, (DW2). He states that DW1 his usual customer hired him on the day in question from Suva to Sigatoka and then Nadi. He brought her (DW1) and a man named “Amanda” with his bag of clothes and a ladies bag. They fueled at Sigatoka town and just before Sigatoka Hospital, Amanda got off with his handbag but did not take her luggage. They then followed the car that Amanda was in onwards to Nadi when they were stopped by the police for speeding and his car’s extra lights. An Indo Fijian police officer then asked DW1 for her license but DW1 did not have it with her. The officer went and got another officer to search them and the car. They search the car and further searched DW1’s bag and found a black pouch which he saw Amanda holding. The police then searched Amanda’s black pouch and saw something. He knows Amanda as a family friend for about 10 years.
   

In cross-examination, he states that the drugs were found in DW1’s bag.

10. Defense tendered in the Passport of Tanya Ravinesh Prasad as Defense Exhibit 1 (DE1).

11. Defense closed it case.

Analysis

12. The State bears the burden of establishing the charge by proving the elements of the offence beyond reasonable doubt.
    

13. The following are the elements of the offence; -

(i) The Accused 1
(ii) Without lawful authority
(iii) Possessed
(iv) 0.2 grams of methamphetamine, an illicit drug

14. I find no issues to the chain of custody as I accept the evidence of PW1 and PW2 and further find element (iv) proved beyond reasonable doubt.
    
15. There is also no issue to element (ii) as neither of the parties argue that there was lawful authority.
    
15. The elements in contention are elements (i) and (iii), that is, whether the Accused knew that the white substance, now confirmed to be methamphetamine, that she was in a black pouch in her hand bag found in the car was indeed methamphetamine, an illicit drug. In this regard, the Court is reminded of the rationale in a persuasive authority in R v Strong and Berry [1989] L. S. Gazette, March 8, 41, CA, where the Court stated:
    

“A person in a car, who is told of the presence of drugs in the car, is not thereby saddled with possession thereof”

16. Section 32 of the Illicit Drugs Control Act ^[1] and the latest authority in State v Abourizk (June 2023 delivered by the Lautoka High Court) where once it is proved that drugs was found in a premises or vehicle controlled by the suspect, the evidential burden then shifts to the suspect to show otherwise, on a balance of probability.
    
17. In this case, PW1 gave evidence to prove that the drugs were in a car that was controlled by the Accused. Although the driver of the car was DW2, the Accused admits that she was driving the said car and is therefore in control of the said car. In doing so, Section 32 is qualified and thus, the burden shifts to the Accused to explain or show in evidence otherwise.
    
18. Here, the Accused did attempt to explain. The Accused states in her evidence that the marijuana found in her laptop bag belonged to her but the glittering purse belonged to Amanda. Whether the Accused was meaning this glittering purse to be the black pouch which PW1 and DW2 refer to as the receptacle that contained the methamphetamine is not clear. She also does not state anything under oath about the white substance believed to be methamphetamine found in a black pouch in her bag. She gave detailed information in PE1 but that is secondary evidence. Her answers to Questions 72 to 76 says that the black purse which contained the “ice” did not belong to her. Read in line with her current evidence seems to strongly suggest that the black pouch or purse found in her black bag may have belonged to Amanda.
    
19. DW2 supports this by saying that he saw Amanda holding onto the black pouch. Prosecution intended to contradict DW2 however when one looks at his prior statement and the current statement in Court they are not inconsistent per se. DW2 does state in PE3 and PE4 that the black bag which the methamphetamine belonged to the Accused. However, what he said in evidence on oath is that the drugs was found in a black pouch inside the bag – a black pouch, not the bag, which he saw Amanda carrying that night prior to Amanda getting off. This is the basis of why DW2’s evidence in Court and his prior statement are not inconsistent. Therefore, I add weight to DW2’s evidence that the black pouch which the drugs was found in actually belonged to Amanda. In a way, DW2’s evidence completes the Accused’s evidence in explaining an “otherwise situation” here and that being that the drugs actually belonged to this “Amanda” who got off just prior to being stopped by the police and got into another car.
    
20. On a balance of probability as required by Abourizk, I find the Accused has discharged the evidential burden.
    
21. In light of the above mentioned reasons, I find that elements (i) and (iii) are not made out against the Accused.
    

The Court’s Findings

22. The State has not discharged its burden of proving the charge beyond reasonable doubt against the Accused.
    
23. The Court therefore finds the Accused not guilty as charged and she is acquitted accordingly.
    

24. 28 days to appeal.

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Joseph Daurewa
Resident Magistrate
28^th January 2025

^[1] “Where in any prosecution under this Act it is proved that any illicit drug, controlled chemical or controlled equipment was on or in any premises, craft, vehicle or animal 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 , controlled chemical or controlled equipment.”