Failsauvale v Police [2010] WSCA 8 (24 September 2010)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 17/10

BETWEEN:

TAGALOASA FILIPAINA FAILSAUVALE, male of Faleatiu and Vaitele
Appellant

AND:

THE POLICE
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Nelson

Counsel: TS Toailoa for appellant
P Chang and G Patu for respondent

Hearing: 23 September, 2010

Judgment: 24 September, 2010

DECISION OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS FOR JUDGMENT

1. The appellant was convicted by the Supreme Court (Slicer J sitting alone) on charges of possession of cannabis, possession of an unlawful pistol and two counts of possession of unlawful ammunition. His notice of appeal is against conviction and sentence to a total of 6 ½ years imprisonment, four years on the cannabis charge and a cumulative 2 ½ years for possession of the pistol.
   

The evidence

2. The appellant conducts at Vaitele a commercial operation comprising vegetable cropping and brick-making. Of the employees, who are his relations, up to six live on the property in what he called "my house". The appellant who lived with his wife elsewhere visited the property about once a week.
   
3. On 8 August 2009 as police officers were travelling to the property to execute a search warrant on the property they saw the appellant's car parked at Fugalei outside a shop Movies4U. The appellant was sitting in the driver's seat. In the space between the driver's and passenger's seats the police found a small bag lying on the brim of a hat which had been worn by the appellant earlier in the morning when he met his wife at a bank in Apia and withdrew $800. The bag contained unlawful bullets, four 9mm calibre and 16 of 7.62 calibre, as well as two lawful shotgun cartridges.
   
4. The appellant's wife came to the car holding a handbag which the police searched. It contained the appellant's bank book together with $1300 in cash and a semi-automatic pistol in working order loaded with ten .22 calibre bullets.
   
5. The police drove on to Vaitele to search the appellant's premises. As their vehicles entered the front gate a boy who had been standing with others in front of the house went to the back and threw into the bushes what was found to be a plastic bag containing 99 small plastic packets and a total of 5.6 grams of dried marijuana wrapped in newspaper. It could be divided into 18 "deal bags" which would sell at $5 each. The boy was a nephew of the appellant.
   
6. On 18 August 2009 the appellant stated to a sergeant of police "my brother, I don't want to stay in this place, but I would give you a car, I have a car almost here from New Zealand, but blame it on Fotu and Taei". Those were the Christian names of the boy who had tried to hide the plastic bags and cannabis and was charged jointly with the appellant in relation to those. The context suggested reference to two people; there was no evidence whether there was another Taei on the property.
   

The decision of the Supreme Court

7. The Supreme Court Judge was satisfied that the appellant was in unlawful possession of the bullets in the car, the pistol and ammunition in his partner's handbag and of the cannabis. It imposed a sentence of four years for possession of narcotics and a cumulative 2 ½ years for possession of the pistol.
   

Discussion

8. Possession comprises two elements: physical control of the object and an intention to exercise authority over it. The issue on each charge is whether it was open to the learned Judge to find both elements proved.
   
9. There is no difficulty with respect to the bullets in the car. They were in the bag adjacent to the appellant in the car he owned and next to the hat he had been wearing that morning. It was well open to the judge to infer that both elements were established beyond reasonable doubt.
   
10. But for the evidence of the attempted bribery ([6] above) there might have been room for doubt over the cannabis. Without the bribe the evidence did not establish any greater link between the packet disposed of by the boy with the appellant than with anyone else on the premises. The dried cannabis could have been grown anywhere; there is no suggestion of any growing in the vicinity and there could only be speculation as to whose it was.
    
11. We are however satisfied that the attempt to bribe sheds a wholly different light on the matter. The offer of a motor car, in exchange for placing the blame on the boy or boys, could have no relevance to the cartridges in the car or to the pistol and the bullets with which it was loaded; it was only the cannabis transaction which could colourably be attributed to them. It is scarcely conceivable that an innocent person would offer a bribe of a motor vehicle in exchange for shifting liability elsewhere. When that evidence is coupled with the appellant's role as occupier of the premises and owner of the business in which his relatives were in subordinate positions, it was open to the Supreme Court judge to attribute the conduct of the youngster who tried to dispose of the cannabis to an attempt not simply to protect some unknown offender but his uncle and employer. The conclusion of guilt was available to him.
    
12. The appellant's guilt in respect of both the cartridges in the car and the cannabis at Vaitele is part of the context within which the charge in relation to the pistol is to be considered. Ms Toailoa cited the passage in Police v Emirali [1976] 1 NZLR 286 in which Mahon J observed at 287:
    

Exhibit 3 represented some cigarette papers in which were discovered some traces of cannabis plant ascertained by the police chemist to weight 14 milligrams. These articles were found in a handbag belonging to the wife of the accused. I cannot see on what ground it can be suggested that the appellant was in possession of the contents of his wife's handbag. Speaking generally, it is a concept which could lead to some unusual results, and in the specific circumstances of this case there was no suggestion that the appellant either had custody of his wife's handbag or any knowledge of its contents.

13. We agree with the observation as a general matter. But that case, like this, is to be seen in context. There, no other evidence linked the appellant with his wife's handbag and the cannabis material it contained. Here we have the factors:
    

(1) the appellant having just withdrawn $800 from his bank used his wife's bag as a receptacle for his bankbook and that money; it also contained a further $500;

(2) he was in possession of cartridges in the same vehicle as that in which his wife would be carrying his bankbook and money on his behalf;

(3) the presence of a large number of deal bags with the cannabis suggested that he was currently engaged in drug dealing;

(4) both the possession of large sums of cash, needed to pay suppliers and unlawful pistols, used to threaten or use against other criminals and sometimes the police, are a familiar adjunct to drug dealing.

14. In these circumstances to apply the Emirali analysis to the pistol in the handbag would be unreal. A photograph shows that it was a substantial weapon which could not conveniently be kept in a pocket; it would require a holster or equivalent for which purpose his wife's hand bag would be just as convenient as for that as for a repository of his bankbook and money.
    
15. It was open to the judge to conclude that the physical control by the wife of the loaded pistol was, like that of the bankbook and money, on behalf of her husband. On that analysis he was in possession of each and was rightly convicted of possession of the pistol and its cartridges.
    

Result

16. The appeal against conviction is dismissed.
    
17. Ms Toailoa having advised that in that event the appeal against sentence was not pursued, it too is dismissed.
    

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Nelson