Court documents released recently indicate the State had made an application back in May 2024 to have the 4.15 tonnes of methamphetamine seized in January 2024 to be destroyed. The court documents also reveal the Fiji Police Force expressing its concern at keeping such a large amount of drugs at the Nasinu Police Mobile Unit and through their intelligence gathering and investigation, they believe that there is a risk of interference with the drugs that would greatly undermine the integrity of the criminal justice process. In a court ruling on December 13, Lautoka High Court, Justice Aruna Aluthge ordered the drugs can be destroyed.
Section of 30 of the Illicit Drugs Control Act deals with disposing of seized illicit drugs. The law under this section outlines that if scientific analysis of a sample indicates that it is a seized illicit drug, controlled chemical or controlled equipment, the seizing officer must forward a copy of the scientific analysis report to the Director of Public Prosecution. It adds if the Commissioner of Police, in consultation with the Director of Public Prosecution, is of the opinion that proceedings are likely to be brought against any person and that the physical preservation of all the seized illicit drugs, controlled chemicals or controlled equipment is not necessary for the purposes of any actual or contemplated proceedings, and that when the seized drugs cannot be safely, securely or conveniently stored until the final determination of such proceedings, then the Commissioner of Police may apply to the court for an order for disposal of any part of the seized illicit drugs. The High Court received ab affidavit of filed by Acting Assistant Superintendent of Police Josua Vosaki. He informed the court that the consignment of illicit drugs involved in this case, amounting to a total weight of 4.15 tons, is currently exhibited in police custody at the Police Mobile Force Unit in Nasinu. The court noted a scientific analysis of samples has been conducted at the Fiji Police Forensic Laboratory by the Principle Scientific Officer. The analysis has confirmed that the seized consignment consists of Methamphetamine. The judge noted the photographs of the consignment have been taken and a photographic booklet has been compiled and disclosed to each of the persons 10 persons charged in this case.
OPPOSITION BY THOSE CHARGED
The High Court said even before the application to destroy the drugs was filed, all the 10 persons charged were advised through court proceedings that they were at liberty to engage their experts and pursue independent testing of the drugs if they so wished. Some of those charged informed the Court that they would challenge the analyst’s certificate and the chain of custody. “The Ruling on the application was delayed because some of the Respondents opposed the destruction of drugs, stating that they needed to have samples independently analysed through foreign experts. The confiscation was made in January 2024, and this application was made in May 2024. However, no serious attempt was made by any of the Respondents to pursue independent testing. No formal application has so far been filed seeking an alternative analysis despite repeated advice by the Court,” states Justice Aruna Aluthge. The opposition to disposal appears to be based on three premises, that the photographs taken would not give a clear picture as to the quantity of the drugs, the quantity of the drugs in the Analyst’s Certificate differed from the quantity in the charge sheet and a purity test has not been conducted, stated Justice Aluthge. The judge added in an illicit drug case, weight and purity matter for the sentence, although they may be relevant to challenge the credibility of the chain of custody at the trial. The judge said quantity may also be relevant to the issue of knowledge and that if knowledge cannot be proved, possession cannot be established. “The disparity in weight is already on record. Therefore, any challenge to the weight could be taken up at the trial even without an independent weighing.” It is not always essential that the substance alleged to be an illicit drug be exhibited at the trial. What is essential is that all stakeholders involved in the process must come and give evidence as to the role each one of them played from the seizure to the courthouse with sufficient credibility. Said Justice Aluthge.
ORDERS FOR DESTRUCTION
Justice Aruna Aluthge said the acting Commissioner of Police, in consultation with the OPP, is of the opinion that physical preservation of all the seized illicit drugs is not necessary for the purposes of court proceedings and that the seized drugs cannot be safely, securely or conveniently stored until the final determination of the case. “The Court is informed that, given the volume of illicit drugs exhibited in this case, it is a challenge for the Police Force to continuously monitor and stretch public resources in guarding the exhibits at the Police Mobile Force Unit in Nasinu. Based on their intelligence gathering and investigation, they believe that there is a risk of interference with the exhibits. Any interference would greatly undermine the integrity of the criminal justice process,” said Justice Aluthge. The judge added there were instances where the confiscated drugs, even when the quantities were smaller, got stolen or fell into the wrong hands. ‘Attempts could be made to steal exhibits to create doubt that the drugs have been tampered with. The stolen hard drugs could be sold in the underground market for high prices. Considering the volume of drugs, there are also serious health concerns and a big security risk affecting the whole nation if this application is not allowed.” The court noted the trial date is fixed in April 2025. “It is unnecessary and impractical to transport a consignment of 4.15 tons from Nasinu to Lautoka and tender them as exhibits during the trial,” said the judge. The Court has issued strict orders under which the methamphetamine is to be destroyed by the State. They include:
- A police officer not under the rank of Assistant Superintendent of Police designated by the Commissioner of Police be authorised to dispose the illicit drugs by incineration, or other safe means of destruction.
- Before the destruction, two weeks’ notice shall be given to the Court and all the Respondents indicating the date, venue and modus operandi of destruction.
- Subject to security protocols, the legal counsel of the Respondents may be allowed to observe the destruction.
- The process of destruction shall be photographed and preferably video recorded.
- To ensure the transparency and judicial supervision of the destruction process, the ODPP may request the Resident Magistrate of the area where the destruction is to take place to observe the destruction process.
- The police officer in charge of carrying out the disposal order shall prepare a report signed by him and two witnesses to the disposal stating that the illicit drug has been disposed of in accordance with the order.
- The Report/Certificate shall be filed in court no later than two weeks after the destruction.