Duo in $35m Drug Case Walk Free
Marc Winston and Shaneil Suresh Autar walked out of the High Court in Lautoka as free men yesterday.
This is after the Acting Director of Public Prosecutions, David Toganivalu, filed a nolle prosequi.
The DPP filed the nolle prosequi pursuant to section 49 of the Criminal Procedure Act stating it did not intend to continue with the proceedings against Winston and Autar.
The two men were each charged with one count of unlawful possession, manufacture, cultivation, and supply of the illicit drug and one count of unlawful importation and exportation of illicit drugs.
The duo allegedly facilitated the exportation of 34 parcels of cocaine with a street value of $35million on October 8, 2019.
Judge Justice Riyaz Hamza presided over the matter. Autar was represented by Mark Anthony and Robert Bancod while Winston was represented by Adrienne Ali. Rukalesi Uce, Simione Seruvatu and Mohammed Rafiq appeared for the prosecution.
Ms Uce said the state intended to file a statement of the investigating officer, certificate of the sample testing and the documents confirming the destruction of the drugs yesterday which was included in the new pretrial conference checklist.
Defence
Ms Ali told the court confirmation was made to Mr Anthony that the drugs and suitcase were being sent to Fiji and assurances were given by the prosecution to the court multiple times.
Ms Ali said this was an ambush on the defence whereby the state notified the defence three minutes before the trial that it was aware three weeks’ prior of the drugs being destroyed by the Australian Federal Police.
“You cannot do these things, we have the entitlement under the Criminal Procedure Act to be served with that report section 133, 21 days before the start of hearing, at the very least she should have the courtesy, the duty of candor to tell us that I have received this notification,” Ms Ali said.
The court heard prosecution was awaiting the documents pertaining to the destruction of the drugs as the Australian Federal Police did not need a destruction order to have the drugs destroyed because it was part of its legislation.
Ms Ali said the notice was still evidence and should have been served on the defense 21 days ago therefore this was an indication that prosecution did not prepare for trial. Mr Anthony said if there was any courtesy on the part of the prosecution, it would have written to the defence and to the court about the issues it had.
Prosecution
Ms Uce said she did not make any promise or undertaking that she would bring the suitcase or the drugs as she only wanted it for the trial.
Justice Hamza said he would permit the state to file the investigating officer’s statement, certificate of the sample testing and the documents confirming the destruction of the drugs before the court could take the next steps.
Ms Ali told the court the issue was unequal quantity of the cocaine with the pure cocaine only being 25 kilograms and 15 kilograms of a different substance mixed with it. The court heard prosecution filed a nolle prosequi after a brief adjournment.
Ms Ali told the court there was a discrepancy in the weight, whether the amount of drugs was ever in Fiji and whether it had been interfered with in terms of contamination and none of this could be resolved with a nolle prosequi. Justice Hamza told Ms Ali that the court had moved beyond the respective issue.
Mr Rafiq said the prosecution was ready for trial yesterday with all the witnesses summoned.
However, the only issue was the additional disclosures that were supposed to be provided by the Australian Federal Police.
Mr Rafiq told the court the reason the nolle prosequi was before the court was that the state had discussed the issue with Mr Toganivalu.
Mr Toganivalu’s position was that the state file a nolle prosequi because the state was not allowed to produce additional evidence.
Judge Hamza
Justice Hamza said the DPP had the power to enter nolle prosequi at any stage of the case before conviction of judgement.
He then discharged the accused persons accordingly from the proceedings with respect of the charges for which the nolle prosequi was entered in terms of section 49 (2) of the Criminal Procedure Act.