Attorney-General v Vai [2008] WSCA 10; CA 14 of 2007 (19 September 2008)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 14/07

BETWEEN:

THE ATTORNEY-GENERAL
Appellant

AND:

MAILO BENJAMIN DAVID VAI
of Vaiala and Vaigaga
Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 10 September 2008

Counsel: P. Chang and L Su’a for Appellant
TRS Toailoa for Respondent

Judgment: 19 September 2008

JUDGMENT OF THE COURT

Introduction

1. On 22 October 2007 the appellant was acquitted in the Supreme Court on a charge of possessing

an instrument, namely a glass pipe, for the purpose of committing an offence under the Narcotics Act 1967 contrary to s 13( the Act. The Attorney-Gney-General appeals against the acquittal.

Factual Background

2. After a defended head hearing Nelson J found a series of facts to be established. On appeal they have not been disputed.
   
3. When arrested and searched the respondent was found to be carrying a glass pipe in his pocket. The circumstances suggested that he was aware of the presence of the pipe in his pocket and had voluntarily elected to carry it there.
   
4. The pipe was a kind commonly used to smoke drugs, and in particular to smoke methamphetamine.
   
5. Upon examination the pipe was found to contain traces of methamphetamine.
   
6. The circumstances made it reasonable to infer that the respondent was carrying the pipe for the purpose of using it to smoke methamphetamine at some future time.
   
7. Methamphetamine is a narcotic for the purpose of the Narcotics Act 1967.
   
8. The respondent had possession of the pipe for the purpose of smoking a narcotic.
   

High Court decision

9. Having found those facts Nelson J went on to consider whether, as a matter of law, possession of a pipe for the purpose of smoking a narcotic constituted an offence under s 13(b) of the Narcotics Act 1967. Section 13 provides:
   

Every person commits an offence against this Act who:

(a) Uses or permits to be used any premises or vehicle for the purpose of the commission of an offence against this Act; or

(b) Has in his possession any needle, syringe, pipe or other utensil for any such purpose.

(b) Without lawful excuse smokes or otherwise uses prepared opium or is on premises being used for the smoking of opium.

10. In his decision Nelson J held that in terms of s 13(b respondent did have pove possession of a pipe for the purpose of using it to smoke a narcotic. There was no difficulty over the legal elements of possession ofpipe. The first element was the physical one of actual or p or potential physical custody or control. The second was the mental element of knowledge, in the sense of an awareness by the accused that the substance was in his possession (often to be inferred or presumed) coupled with an intention to exercise possession. Both of those elements were satisfied in relation to the pipe.
    
11. However as to the purpose for which the respondent had the pipe, Nelson J noted that unlike certain overseas legislation, the Samoan Narcotics Act does not expressly list use of a narcotic as an offence. He continued:
    

"I do not accept the Prosecution argument that possession of the pipe was for the purpose of committing the offence of possession of narcotics because it is not necessary for the offence of possession of narcotics to be in possession of the glass pipe. It is illogical to suggest that possession per se of a container is necessary in order to have possession of its contents. Possession of the contents can occur without the container and possession of a narcotic is an offence in its own right. To say that the accused had possession of the pipe for the purpose of having possession of the pipes contents is in my view a mis-application of the section and in any event there is nothing in the evidence to suggest or support a conclusion or a reasonable inference that the pipe was in the accuseds possession for the purpose. His purpose was as different as it was clear, to use the pipe for the consumption of methamphetamine."

Arguments advanced in this Court

12. In this court Ms Chang repeated the contention advanced for the prosecution in the Supreme Court, namely that the offence inherent in the respondent’s purpose was the possession of a narcotic, namely methamphetamine. The broad effect of her submissions was that it was not possible to smoke a narcotic without possessing it. To possess a narcotic is itself an offence under s 7. Ms Chang’s interpretation was supported by two decisions of the Chief Justice, Police v Tagaloa Runi Masame [1007] WSSC 83, 30/10/07 and Police v Esera [2008] WSSC 43, 23/6/08.
    
13. Mr Toailoa responsibly acknowledged that that it was not possible to smoke a narcotic without possessing it and that to possess a narcotic is to commit an offence under s 7. He relevantly relied upon three points.
    
14. The first point was that the prosecution interpretation would make s 13(c) redundant in so far as it expressly prohibits the smoking of opium. We agree that the prosecution interpretation would involve overlapping sources in relation to opium but in itself that is not a reason to deny the broader effect of s 13(b). This would not be the first legislation which repeats itself.
    
15. The second point was that the prosecution interpretation fails to take account of differences between the Samoan Narcotics Act and its overseas counterparts. The latter expressly prohibit use of narcotics in general as distinct from their possession. However if the prosecution interpretation is upheld, the same effect would be achieved without the necessity for express reference to use as such.
    
16. Finally Mr Toailoa supported Nelson J’s view that "... it is not necessary for the offence of possession of narcotics to be in possession of the glass pipe". However with respect to the Judge’s view, that is to pose the wrong question. The question is not whether it is possible to possess a narcotic without a pipe. It is whether it is possible to smoke a narcotic without possession.
    

Interpretation of s 13(b)

17. Under s 13(b) an offence of this kind must be broken down into two steps. The first requires proof that the defendant was in possession of a pipe. That was clearly satisfied in the present case.
    
18. The second step is concerned solely with the defendant’s state of mind at the time of possession. At this stage it is necessary to determine the purpose for which the pipe was possessed. If attaining that purpose would necessarily entail the commission of another offence under the Act, the primary offence under s 13(b) is complete.
    
19. It follows that if attaining the purpose of smoking a narcotic would necessarily entail the commission of the offence of possessing a narcotic, the primary offence of possession for a prohibited purpose under s 13(b) must have been committed.
    
20. The reason for the differing approaches to s 13(b) may well have been due to a confusion between ultimate and incidental purposes. If a defendant has the purpose of committing an offence as a necessary step in order to attain some greater end, the fact that his ultimate purpose is not the offence will not save him. The bank robber who kills a guard only in order to take the money is guilty of murder even though his ultimate end was to obtain the money. In the same way, if a person comes into possession of a narcotic in order to smoke it, the fact that possession of the narcotic was not the ultimate purpose is immaterial.
    
21. We therefore respectfully agree with the interpretation of s 13(b) already expressed by the Chief Justice in Police v Tagaloa Runi Masame and Police v Esera, supra.
    
22. In the present case Nelson J found that the respondent did have possession of the glass pipe for the purpose of using it to smoke methamphetamine. It follows that the respondent had possession of the glass pipe for the purpose of committing an offence under the Narcotics Act, namely the offence of possessing a narcotic. All elements of the offence being established, the respondent was guilty of an offence under s 13(1)(b) of the Narcotics Act.
    

Result

23. The appeal is allowed. The decision in the Supreme Court is sed. The respondent is conv convicted of the offence with which he was charged. The respondent is directed to appear for sentence in the Supreme Court on a date to be notified by the Supreme Court.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher