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Police v Fuiava [2018] WSDC 5 (21 March 2018)

DISTRICT COURT OF SAMOA
Police v Fuiava [2018] WSDC 5


Case name:
Police v Fuiava


Citation:


Decision date:
21 March 2018


Parties:
POLICE v TUIFAGALILO FUIAVA, male of Lotofaga.


Hearing date(s):
6, 13 and 14 December 2017


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
I find you Tuifagalilo GUILTY of all three charges namely:
i) Possession of an unlawful weapon, namely a .32 Pistol;
ii) Possession of 24 live ammunitions for that pistol; and
iii) Possession of a utensil namely a scale for the purpose of committing an offence against the Narcotics Act 1967.
Tuifagalilo you are remanded on the same bail conditions to 16 April 2018 for sentencing.

The Police Commissioner is ordered to destroy the pistol and its ammunitions


Representation:
Ms R Titi for Prosecution
Ms M V Peteru for Defendant


Catchwords:
Raid


Words and phrases:
possession of a utensil for the purpose of committing an offence against the Narcotics Act 1967– possession of an unlawful weapon (pistol) – possession of ammunitions for an unlawful weapon – search warrant ––


Legislation cited:
Arms Ordinance 1960 ss.2; 12(1); 12(2); 12(3)

Cases cited:
Browne v Dunn (1893) 6 R 67;
Hall v Coton [1987] QB 504;
R v Hussain [1981] ELR 416,, [1981] 2 All ER 287, 72 Cr App R 143 quoted in Murphy P (ed) Blackstones Criminal Practice (Blackstones Press Ltd 1993);
P v Esera [2008] WSSC 43
P v Faisauvale [2010] WSSC 55

P v Masame [2007] WSSC 83
P v Vai [2008] WSCA 10;
R v Waller [1991] Crim LR 381;
Woodage v Moss [1974] 1 All ER 584;
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E
Informant


AND:


TUIFAGALILO FUIAVA, male of Lotofaga
Defendant


Representation:
Ms R Titi for Prosecution
Ms M V Peteru for Defendant


Hearing: 6, 13 and 14 December 2017
Submission: 26/01/18 & 31/01/18
Decision: 21 March 2018


DECISION

BACKGROUND

  1. On 26 September 2017, Police obtained a search warrant against the Defendant Tuifagalilo Fuiava (“Tuifagalilo”) to search for methamphetamine, marijuana, unlawful weapons and unlawful ammunitions.
  2. Police witnesses gave evidence that on the same morning, they headed towards Lotofaga to execute the search warrant (“the Raid”). However, on their way they received information from their intel that Tuifagalilo was heading into town by car registration number 19853 accompanied by his younger brother, Benson Fuiava (“Benson”).
  3. According to Police witnesses, they met the vehicle driven by Tuifagalilo on Cross Island Road heading northerly towards Apia from the Tiavi direction so they turned around. They followed Tuifagalilo to a car wash at Tanugamanono where the search warrant was presented to him and he was accordingly informed of the purpose of the search. He was also informed at that stage that he was not under arrest but that he would be escorted by Police in the vehicle he drove to his residence at Lotofaga. Tuifagalilo was body searched at the car wash where Police retrieved from the pockets of his pants cash money in the sum of ST$10,600.00. Other items were also seized.
  4. The raid was carried out at Tuifagalilo’s residence with his parents at Lotofaga, Safata (“the House”) as well as two vehicles registered under his name with the assistance of the K-9 Unit and Trans-national crime - Interpol Unit where a .32 semi automatic pistol, 24 live ammunitions and utensil were found as well as cash monies and other items. It is common ground that no narcotics were found during the raid.

CHARGE

  1. As a result of the raid, Tuifagalilo was charged with three (3) counts listed below alleging that at Lotofaga on 26/09/17:
    1. He was in possession of an unlawful weapon namely a.32 caliber semi- automatic pistol (“the pistol”) not being so authorised by the Minister of Police contrary to s 12(1) (2) & (3) Arms Ordinance 1960 (“Arms Ordinance”);
    2. He was found in possession of 24 ammunitions for an unlawful weapon namely a .32 caliber semi automatic pistol (“the Ammunitions”) contrary to s 12(1) (2) & (3) Arms Ordinance; and
    3. He had in his possession a utensil namely (1) electronic weighing scale for the purpose of committing an offence against the Act in breach of s13(b) Narcotics Act 1967.
  2. Tuifagalilo entered not guilty pleas to all charges and the matter proceeded to trial on 6, 13 & 14 December 2017. It was then adjourned to receive and hear submissions.
  3. This case at the end of the day comes down to the issue of credibility and whether all elements of the offences are proven to the criminal standard.
  4. This is my reserved decision.

POSSESSION OF UNLAWFUL WEAPON AND AMMUNITION

  1. For convenience I intend to deal with both these counts together as they co-relate especially since both items were found in the same suitcase.

Law

  1. The statutory provision is lengthy and I do not wish to recite it in full. Suffice to say that s12 (3) Arms Ordinance makes it an offence to be in possession of an unlawful weapon or ammunition and the penalty being a fine of 100 penalty units or 5 year imprisonment.
  2. Prosecution must prove beyond a reasonable doubt that the pistol was unlawful and that Tuifagalilo had possession of it together with ammunitions for the same weapon.

Evidence

Search of the House at Lotofaga

  1. At the house at Lotofaga, Hugo Tauauvea (“Hugo”) a trained dog handler and his detector dog Flynn (“Flynn”) commenced their part of the search on the right side of the house. According to Hugo, Flynn is specifically trained to sniff out powdered drugs such as methamphetamine or ice, heroin, cocaine as well as local and overseas cannabis. Since the middle of 2016, Flynn was also trained to detect the scent of ammunitions and oil used to clean firearms.
  2. Hugo explained his role as dog trainer and Flynn’s change of behaviour and what it meant. This included firstly when he picks up an interest he starts wagging his tail. When he sources the odour or scent of an “owner” he sniffs (breathe) heavily and this is especially if the scent is strong. When he finds the owner of the scent, Flynn sits down.
  3. According to Hugo he and Flynn were first deployed to search the sitting room area and the interior right side of the house. The house consisted of 5 bedrooms each with an exterior door accessible through the front patio. Each also has an interior door accessing the bedrooms along the hallway of the house. The lounge is in the middle.
  4. Flynn did not indicate an interest in the lounge. But in the master bedroom Flynn took an interest in the lounge seats. He had a change of behaviour there and Hugo unleashed him so he may source the odour. Flynn wagged his tail, hopped and sniffed heavily around the seats. They went towards a table in the same room and Flynn indicated the same interest in a pack bag that was there. They continued to the second bedroom, and Flynn did not pick up any interest there. In the third bedroom, he was interested in a steel box. As is the usual routine, Hugo informed the search team of the items Flynn had indicated an interest in so they may conduct the physical search.
  5. Whilst searching their side, Constable Mozart Lene Milo (“Mozart”) and his dog, Boss scoped the bedrooms on the left side including the kitchen. According to Mozart, Boss has the same change of behaviour as Flynn when sourcing an odour and its owner. Boss however, did not show an interest in any of the rooms. But the last room which was identified as a store room (“Storage”) consisted of a number of items including suitcases, drums, tools and bins with cutlery, glassware and other bulky items. Mozart saw it was unsafe for his dog to conduct the search there given the lack of space making it difficult for Boss to properly detect or source the odour. So he requested if the items could be moved to the sitting room
  6. Hugo testified that he was resting Flynn when Sergeant Viiga Sio (“Viiga”) called out if he and Flynn could assist with searching the store room. Like Mozart, he too requested that the items be moved to the sitting room so it is easier to deploy the pattern and search plan. This was done. Flynn was interested in seven suitcases and 2 chilli bins. These were marked as “F” on photo 4 exhibit P2. Flynn changed his behaviour the most when the brown suitcase (“the Suitcase”) shown in photo 5 exhibit P5 was unzipped and opened.
  7. Upon a physical search of the suitcase, the .32 pistol was found and ammunitions for that weapon; Passport, some receipts/ documents, clothing, spare keys and cash money of USD$3000 were also found in the same suitcase. The pistol was cleared by Constable Thomas Tutoatasi (“Thomas”) and there were no bullets in it. He also checked the magazine of the pistol and found 7 live bullets in there. He was asked to check a small camera like bag where 17 live ammunitions for the same pistol were also found. These items were shown to Tuifagalilo who confirmed these and he was informed that these would be confiscated for Police investigations.
  8. The pistol and ammunitions were given to Detective Constable Alapati Moafanua (“Alapati”) as the assigned exhibit officer. According to Thomas, he received back the pistol and ammunition from Alapati on 29/09/17 after Police had concluded their investigations and he stored it in the armoury unit. Sergeant Toddy Iosefa “(Toddy”) examined the pistol and ammunition on 29/09/17 and concluded that these were illegal and could not be registered here in Samoa.
  9. Senior Sergeant Aasa (“Aasa”) confirmed in his evidence that Tuifagalilo’s passport was not one of the passports found in the brown suitcase but someone else’s. Viiga however under cross examination testified he had asked Tuifagalilo and Benson where their passports were and both he and Benson pointed to the same suitcase. There was no passport where Tuifagalilo and Benson had directed to look instead a small sealed coin bag consisting US dollars was found. According to Viiga he had asked Tuifagalilo how much cash was in there and he replied it was USD$3000. He had also queried Tuifagalilo twice when the pistol and ammunitions were discovered whether who owned the suitcase and the reply from Tuifagalilo was “o le ato lena o a’u”. Viiga had also asked Tuifagalilo if the pistol was real or an imitation and he replied it was real. This evidence is corroborated by Aasa who overheard this and Tuifagalilo also responding that “o le fana ua leva ona i o”.
  10. The physical search did not locate any narcotics at the spots where Flynn took an interest. But according to Hugo, Flynn would only indicate an interest if the item from which the scent is sourced had been there. He told the Court that even if the item had been removed, Flynn would still be able to detect the scent which could be attributed to powdered narcotics, ammunition or gun oil.

Cross Examination by Defence

  1. Cross examining questions from Defence counsel, suggested to Police witnesses that when the pistol and ammunition were found, Tuifagalilo was questioned about these and he had replied that it was his father’s. Police witnesses denied this. Ms Peteru also questioned Viiga and Aasa on the accuracy of Tuifagalilo’s replies firstly regarding who owned the suitcase and pistol, where the passports were, the fact there was a galuega on at the time and whether fingerprints had been taken of the items found. Prosecution evidence on these aspects remained unwaivered. Herbert had explained that the option of taking fingerprints was a difficult one involving weighing up whether to do it as “fingerprints can actually contaminate the narcotics or anything that is on it”.[1]

Tuifagalilo’s Evidence

  1. Tuifagalilo elected to give evidence and the material aspects are summarised here. He agreed with Police witnesses account about how the search was conducted in the house and cars.[2] He told the Court that at the time of the raid he was completing a project at the back of the house for his mother. He had sold two vehicles prior to the raid and on that date (26/09/17) he was heading into town to buy some materials for the project with the money Police found in his pockets.
  2. In terms of the suitcase where the pistol and ammunitions were found, he told the Court that it is usually kept behind Benson’s luggage. He further described that “if there is a black container there, then it would be at the back of those bags”[3] He analysed the photos of the storage and told the Court that it looked like “stuff” in there had been moved around as he normally keeps his mum’s store room “nice and neat and clean”[4] suggesting that Police had physically searched the store room first before the items were brought outside. However, this theory was not put to Police witnesses called. In any event it is a non issue as Tuifagalilo did admit he knew of the presence of the pistol so whether it was found in the storage or elsewhere in the house does not matter.
  3. Tuifagalilo identified photo 8 exhibit P4 depicting an image of the bag in which the bullets were found which he described as “a specialised packaging bag for bullets”.[5] He said he was questioned by Viiga as to who owned the “stuff” and he replied “this stuff belonged to his parents”.[6] Again this was not put to Police witnesses pursuant to the rule in Browne v Dunn[7] and s76 Evidence Act 2015.
  4. According to Tuifagalilo when Viiga queried him about where he and Benson’s passports were, both he and Benson pointed to the brown suitcase the explanation was “they were going to two different bags and we were saying no this brown bag”.[8] In regards to the USD$3000 found in the suitcase Tuifagalilo testified it belonged to Benson as he had just flown in from the USA.[9]
  5. Tuifagalilo referred to a spare key found in the suitcase as belonging to his mum and that 99% of the “stuff” in the store room belonged to her.[10] He confirmed Viiga had asked him when the pistol was found “Poo se faga moi po’o se mea kaalo poo se toy? Ae ou fai aku, leai o le faga moi”.[11]
  6. During cross examination by Ms Titi, he was questioned about where the suitcase is normally stored in the storage. He replied that “...on the pictures it’s hard to show on the pictures as reachable but it’s not stacked all the way piko i lalo foi gale i le mea lea e stack ai akopa’u”.[12]
  7. I will now move to analyse the evidence.

Analysis

Was the pistol and an unlawful weapon?

  1. Section 2 Arms Ordinance describes an "unlawful weapon" as including a pistol such as the one in the instant case. It is undisputed that the pistol tendered as exhibit P 6 is an unlicensed firearm and Tuifagalilo does not have a certificate for it. It is therefore an unlawful weapon as described by Toddy in his evidence and pursuant to s2 above. The chain of custody of the pistol in my view is also undisputed. There is no suggestion to the contrary that this is a different weapon from that seized. So this element of the offence is met. The live issue left for me to consider is whether Tuifagalilo had possession of the pistol and ammunitions.
  2. As in P v Faisauvale[13] the case for the prosecution was circumstantial. On the evidence before me, I find that Tuifagalilo was in possession of the pistol and ammunitions and I explain my reasons below.

Did Tuifagalilo have possession of the pistol and ammunitions?

  1. The Defence do not contest that the pistol and ammunitions were found during the raid. But they say the house belonged to Tuifagalilo’s parents. From this I discern the argument is as the house does not belong to Tuifagalilo its contents therefore belonged to the parents and Tuifagalilo is free of blame. Counsel for the Defence argued in their closing submission that although Tuifagalilo knew about the presence of the pistol and ammunitions, the suitcase was used by not only him but also Benson and their father so that it could not be said that he owned the pistol and therefore the ammunitions found in that suitcase.
  2. Tuifagalilo’s own evidence suggested that the pistol and ammunitions were those of his father’s. This was put to Corporal Aasa during cross examination where he was asked if he had heard Tuifagalilo responded to a question by Viiga that it was his Dad’s gun. Aasa replied he did not hear such an reply from Tuifagalilo. However, again this was never put directly to Viiga himself given he was the one who allegedly posed the questions to Tuifagalilo.
  3. It seems to me, the Defence’s main concern is with the ownership of the pistol and ammunitions. But this is misconceived. We are not here concerned with the ownership of the pistol and ammunitions but with who had possession of these at the material time. Whether a person is in possession of a firearm and ammunition is a question to be decided on the facts of each case. The operable word in the charge is “possession” which is to be given its ordinary meaning. It is described in the Oxford Dictionary of Law[14] as:

“Actual control of property combined with the intention to use it rightly or wrongly as one’s own. In the case of land, possession may be actual when the owner has entered onto the land or possession in law where he or she has the right to enter but has not done so”.

  1. The term possession depends on the context in which it is used.[15] It must be borne in mind that possession of a firearm and ammunition is a strict liability offence and actual physical custody is not required nor is knowledge of it essential. But even if it were a requirement, on the evidence before me, I would have still made a similar finding that Tuifagalilo did have physical custody and knowledge of the pistol and ammunition.
  2. Here, there is strong evidence pointing to Tuifagalilo having possession. On his own evidence, he confirmed that only he, Benson and his nephew who was taking a course at Tesese School at the time of the raid, occupied the house. His brother Benson only flew in a week prior to the raid and planned to be in Samoa for two weeks. There is certainly no suggestion and no basis for forming a view that Benson had brought the pistol and ammunitions with him from USA because the evidence from Tuifagalilo himself pointed to the pistol being at the house prior to Benson’s recent arrival. Tuifagalilo’s evidence also confirmed that only he, Benson, his sister and parents have a key to the storage and other rooms of the house. When Tuifagalilo leaves for overseas, the whole house is locked and only the room occupied by his nephew remains unlocked.[16] Even the bathroom is locked and according to Tuifagalilo, the nephew uses the next door neighbour’s bathroom during his absence.
  3. This evidence clearly says that apart from his sister and parents who have resided overseas for more than 30 years as admitted by Tuifagalilo under cross examination[17], at the material time of the search, the only other persons who had a key to access the store room were Tuifagalilo and Benson. But Benson was only visiting temporarily. Police investigation however was focused on Tuifagalilo not Benson and I am sure they have their reasons.
  4. Here, prior to Benson’s arrival, Tuifagalilo was the one who occupied the house and had immediate custody and possession of it. In other words he was the only other person who had exclusive possession of the house and its contents. Tuifagalilo’s parents had visited and left Samoa in June 2017 as they reside permanently in USA.[18] Tuifagalilo had travelled with them but he returned in August 2017 which meant he was away for a little over a month.
  5. According to Tuifagalilo there was an ongoing galuega he was funding and was anxious to complete it as a surprise for his mother. Again this renders further support to his control and possession of the house. He testified he had sold two vehicles including the silver Mazda Altezza prior to the raid. Both were registered under his name although the latter was a gift to his mother. Some of the money seized by Police during the raid according to Tuifagalilo was from this car sale. But there is no satisfactory explanation as to why he carried so much cash around with him unbanked given what he said that he intended to so for safe keeping.
  6. At first he told the Court he operated a small business involving fixing and reselling vehicles as that is what he does as a mechanic. Then he said he also earns income from the concrete blocks he produces and sold. But when questioned further about this he clarified that he stopped producing these blocks at around about March 2017 when his village council forbid him from dredging the sand. He testified he continued to sell the remaining blocks but also said he used these for the house extension project he had on.[19] This part of his evidence does not make much sense and is inconsistent.
  7. Tuifagalilo’s own evidence confirms that he knew of the presence of the pistol and ammunitions in the house. Tuifagalilo also knew the pistol was in the brown suitcase and exactly where this is kept in the storage which he described as reachable or accessible. When questioned by Viiga whether who owned the suitcase he replied it was his and Benson’s. But in his evidence in chief he shifted the blame to Benson. When further queried about the clothes he said it was his, Benson’s and his dad’s inferring all three of them used the same suitcase. He described the clothes in the suitcase as second hand they hardly use and that either he or Benson would just chuck these in there after the washing.[20] But again this does not make much sense. If the clothes were second hand and rarely used, then why would they need to be washed and chucked in there by Benson who only just arrived a week earlier?
  8. The following cross examining exchange between Ms Titi and Tuifagalilo is recited to illustrate the above:[21]

“Pros: And during this time in August up until the police raid o oe lea na e sau iinei i Samoa e le o ou matua a?

Wit: Sa’o lelei

Pros: And Benson only came a week before the Police raid a?

Wit: Sao Lelei

Pros: And i le taimi lea sau na o oe a Tuifagalilo i lau molimau lea e te faapea mai e tofu outou ma le key ma nao outou e accessing ia potu nei?

Wit: Sa’o lelei

Pros: A leai la nisi iinei i Samoa e loka tou poku e le access e tou aiga iinei?

Wit: Sa’o lelei e loka akoa le fale akoa

Pros: So a oo foi la ina e malaga mai o oe e vaavaaia uma mea ia ei totonu o le storage room lea a?

Wit: Sa’o lelei

Pros: And you had always known about the gun in the suitcase in that storage room e sa’o Tuifagalilo?

Wit: Sa’o lelei”

  1. The above infers possession. I find that the suitcase was easily accessible and used by Tuifagalilo more frequently than the picture he painted. So he had control and custody of the suitcase just like the house. The fact he said under cross examination that he and Benson uses the suitcase for their clothes renders further support to this. I recite the following exchange between the Court and Tuifagalilo:[22]

“HH: Well how come your clothes are in that bag? How did they end up in the brown bag if it’s stored away somewhere?”

Wit: O ofu e seasea faaaoga like second hand clothes that I don’t really use like working clothes.

HH: So who placed them in that bag?

Wit: A oo iga fai kagamea Benson put it in or I do because Benson’s clothes are also in there o la e mix uma a. O akopa’u uma lae in my mum’s storage, it’s a mix of everybody’s clothes. Mo ofu second hand e seasea faaaoga.”

  1. The above exchange also raises an inference, that Benson had only just visited, so he and Tuifagalilo must have recently used the suitcase to chuck clothes in there. Again this infers possession. Not only this but when questioned by Viiga about their passports, both had replied that it was in the brown suitcase. According to Tuifagalilo he had seen Benson put the passport in the top pocket of that suitcase. Again this infers recent usage and that this is not a suitcase that was just sitting idle and unused somewhere at the corner of the storage. If they each had their own suitcase as Tuifagalilo described then why would such important items, including documents, money, receipts, spare keys and passport, be kept in the same suitcase as the unlawful pistol and ammunitions?
  2. Tuifagalilo was also asked if the pistol was real or an imitation. He was quick to confirm that it was real. But how would he know this? The only plausible explanation is because he was knowledgeable in this type of weapon and even had custody of it. The fact of the matter is, even with the knowledge that the unlawful pistol and ammunitions were in the premises, Tuifagalilo did not do anything about it such as getting rid of it or surrendering it to Police.
  3. Although, parts of Tuifagalilo’s evidence were not cogent, inconsistent and lacked believability, I did find other parts of his evidence helpful in sealing some issues I had some concerns with.
  4. In regards to the ammunition, there is no dispute that these were live. The pistol was cleared and the magazine consisted of seven live ammunitions. In a small bag described by Police as a camera bag, 17 more live ammunitions were found. When Tuifagalilo was asked about the casing or the camera bag, he was quick to correct this saying it was not a camera bag but rather it was a special case for safe keeping of the ammunitions. The question I have is how would he know that unless he got the case himself for that purpose, to store the ammunitions safely? I infer from there that he had very specific knowledge of the ammunitions, its casing and the pistol itself
  5. But even if I am mistaken in saying Tuifagalilo had control and custody of the house and therefore possession of the pistol and ammunitions, I bear in mind that in Hall v Cotton[23] the Court there held that a person does not have to have physical control of the firearm nor does she/he have to be present in the place where the firearms are kept in order to be in possession of them. As was also said by the English Court of Appeal in Hussain[24] a person has a firearm in his possession when he or she knows that he or she has something with him which in fact is a firearm. The defendant’s knowledge or belief about its nature is therefore immaterial.[25] In Waller[26] the Court there held that a person is in possession of a firearm when it is in a container whether the defendant knows what is in the container or not. Physical custody of the firearm is not necessary.[27] Applying these principles to the facts summarised above, my ruling would therefore still remain the same.
  6. I must say that at the closing of prosecution’s case, I might have had some doubts regarding these two charges. But any such doubt was put to rest when Tuifagalilo opted to give evidence thereby driving the final nail in the coffin so to speak.
  7. I reiterate my conclusion that the Prosecution has proven beyond a reasonable doubt that Tuifagalilo did have possession of .32 pistol and 24 live ammunitions as charged.

POSSESSION OF UTENSIL – ONE PORTABLE ELECTRONIC WEIGHING SCALE

Law

  1. Section 13(b) Narcotics Act 1967 provides as follows:

“13. Miscellaneous offences – A person who:

(a)...; or

(b) has in his or her possession a needle, syringe, pipe or other utensil for any such purpose for the commission of an offence; or

(c)...;

commits an offence and is liable to imprisonment for a term not exceeding 7 years or a fine not exceeding 200 penalty units, or both.”

  1. The leading authority in Samoa relating to this type of offending is AG v Vai[28] where our Court of Appeal set down the approach as follows:

“17. Under s13(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...

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 urpose 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 possession of narcotics, the primary offence of possession for a prohibited purpose under s13(b) must have been committed”

Evidence

Police Witnesses

  1. According to Police witnesses, after the search in the house, Hugo and Flynn proceeded to search the two vehicles outside, a white Mazda Tribute plate number 11937 (“the White Mazda”) and silver Mazda Altezza number 19853 (“the Silver Car”). The latter is the same car driven by Tuifagalilo when stopped by Police at the car wash. For the white Mazda, Flynn indicated an interest in the boot and in between the front seats. The search team conducted their search and nothing was found in this vehicle.
  2. For the silver car, Flynn indicated an interest in the boot in between the front seats, under the driver’s seat and side of the door. Hugo described it as follows:[29]

Wit: “Maea ona sueina le taavale paepae ma o mai i le taavale efuefu, pattern lava e tasi sa ma faaaogaina. Na amata le ma sue i fafo taamilo i le taavale agai i luma seia paia le pito i tua. Ina ua oo i tua sa ou tatalaina le keli ma tuu iai le taifau i totonu. O tua foi o le keli o le taavale lea sa igakalesi iai le taifau. Sa faapea ona faailoa i alii ofisa e faatinoina le sue. Faasolo mai i le nofoa i le pito i tua ma amata atu ai foi ma le sue. Ae ina ua lata i le ogatotonu i le alu agai i luma o le taavale, i le va o le avetaavale ma le passenger, o iina na ou vaaia ai ni aga a le taifau ua malosi tele suiga o aga o le taifau. Sa matua tata le siusiu ma matua mamafa tele le manava ma ou tago loa unleash ma tuu loa ia e fai lana galuega. E alu atu a le taifau sulu lona isu i le faitotoa o le avetaavale tilotilo mai ia te au. Fa’aauau lana sogisogi sau sulu i lalo o le nofoa o le ave taavale oi iina ni vaega na mafai ona ou faailoa i le search team e manaomia ona su’e.


...Lau Afioga o le ata numera 16, o le vaega lea pei ona ou faailoa i le pito i tua o le taavale, i le va o le nofoa na amata ona sui ma malosi ia aga a le taifau. O i le va lea sa unleash ai loa le taifau. Na sau Flynn oso mai i luga o le nofoa sulu sa’o le isu i le mea lea e silasila mai ai lau Afioga o loo iai le lima o le alii leoileo lea...


Ina ua sulu i le isu o Flynn na ia tilotilo mai ia te a’u, na ia toe tu’u le isu ma sau a alu i lalo o le nofoa o le ave taavale e le mafai ona faailoa i ata lau Afioga o lo’o pupuni e le Alii lea. O i fo’i na matuai malosi ai le aga a le taifau...”

  1. According to Hugo, he observed Flynn’s change of behaviour closely for any solid indication but Flynn did not sit down. He explained this as meaning either the drug had been removed or there was little room to source the odour.[30]
  2. The physical search of the silver car identified in photo 12 of P2 was carried out by Mozart and Constable Tyrone Mamaia (“Tyrone”). The latter played the role of profiling and scouting. According to their evidence, Mozart searched the front passenger side whilst, Tyrone searched the driver’s side. It was Tyrone who found the scale on the side of the driver’s door as depicted in photos 14, 15 & 16 exhibit P2. When found it was wrapped securely around a plastic shopping bag. The scale is depicted in photo 17 exhibit P2 and was produced as exhibit P3.
  3. Viiga was called over and he opened the plastic bag to inspect. He showed the scale to Tuifagalilo and asked what the scale was for. Viiga, and other police officers (Tyrone & Aasa) gave evidence that Tuifagalilo had replied that he uses it to weigh his father’s medicine.[31] According to Viiga he had laughed this off and uttered words to the effect, “e le lava le fua la e fua mai ai e le fomai?”
  4. From Tyrone and Viiga, the scale was then given to Alapati who gave evidence that when he received it he inspected it and noted fine glittery crystals on the pan and cover.[32] In his words during his evidence in chief:

Wit: “Sa faapea ona ou tuuina i luga ma ou tilotilo ai faapea ona o le saunoaga a Tui e faaaoga e fua ai fualaau a lona tama, sa ou vaaia o pagupagu ai luga ni mea ilaila.

Pros: Pau na o mea sa e vaaia?

Wit: “...Ia lea ou te vaai atu i le tapuni o iai mea ilaila i le taimi na tuu mai ai nei mau faatino ia au”

Pros: Ae a luga o le mea na le pei o se...?

Wit: “...o le pito lea sa ou ta’ua sa iai mea ilaila sa pipii ai luga”.

  1. Tuifagalilo was informed by Viiga that the scale would be kept in Police custody to be sent off to SROS for testing. Tyrone continued the search of the vehicle and found under the driver’s seat a man purse which consisted of cash monies in sum of ST$20,000 and other documents. This cash was also seized by police. A record of all cash monies Police seized from the raid was tendered as exhibit P9.
  2. According to Alapati, he sealed the scale and kept it with him until he got to the Police Station in Apia where it was handed over to Aasa for interviewing purposes. After Tuifagalilo’s interview, the scale was returned to him for safe keeping in the exhibit room. It was only brought out for dispatching to SROS.
  3. Pousui Dr Fiame Leo an authorised analyst employed at SROS (“the Scientist”) gave evidence that he received on 4/10/17 an exhibit in a sealed envelope marked Pol vs EXHDS/2017-112 containing a sample of a weighing scale and he assigned the unique laboratory number for it as SROSNL17030. He had received instructions from police to look for methamphetamine but he also said the tests he conducted would have picked up any other drug. He testified that when he opened the lid of the scale, he saw tiny deposits or residues there which he marked as “A” on photo 18 exhibit P 2. He extracted a swap from the pan of scale for testing purposes. He explained the methodology used for the tests he carried out. At its conclusion, the sample was tested positive with the control substance of methamphetamine. The Scientist’s Certificate of Analysis was tendered as exhibit P1.
  4. Inspector Herbert Aati (“Herbert”), principal officer in charge of the Transnational Crimes Unit and Interpol Apia Office gave evidence regarding his experience as an intelligence officer, investigator, exhibit handling officer and narcotics detector handler. He told the Court that his intelligence team continuously conduct researches and training in the narcotics field including studying the range of indicators associated with narcotics.
  5. His specific involvement in this matter was on 16/11/17; he was shown the scale marked as EXH DS/2017 -112 with the reference number REF 2017/119 and he took photographs of it. According to his evidence, the scale is a common one known as a pocket or jewellery scale. It is made and used for legitimate purposes such as measuring vitamins and legal narcotics. However, throughout his experience and training, the scale has become known as an indicator of the possibility of the presence of narcotics.
  6. Herbert explained further that the reason why the scale is an indicator is because ice or methamphetamine is sold at very low and accurate measurements which are predominantly called, the point bag with a measurement of 0.1 of a gram. The scale capacity is from 0.1 all the way up to a 1000. In his view, the bigger the bag the more expensive it is and the scale itself allows the dealer or distributor to accurately cut or measure the amount of narcotics to be distributed. He estimated that a 0.1 bag has a current market value in NZ of about NZD$80 - $120 and in Samoa it is about a ST$100.

Defence evidence

  1. In regards to the silver car, the Defence admitted Tuifagalilo did have custody of it and uses it in his mother’s absence. In his words during his evidence in chief “...this is pretty much the vehicle that we usually use all the time”.[33] This was the same car he used on the day in question when intercepted by Police at the car wash.
  2. According to Tuifagalilo he had bought the silver car as a gift for his mother but it was registered under his name. The explanation being that he intended to resell it at some stage and as his mother reside overseas, it was more convenient for the car to be registered under his name. He also told the Court that he had sold the silver car prior to the day of the raid but when asked why the new owner did not take possession of the car he replied he needed to fix the transmission.
  3. According to Tuifagalilo he came in possession of the scale by accident. He clarified that in the beginning of 2017 he had gone to pick up his nephew and niece from school at Avele and were on their way home when the tyre burst. He pulled over to change the tyre. In the boot on top of the spare tyre a speaker is mounted and when he moved it he found the scale there. When he saw the scale he was familiar with its purpose as he runs a hydraulic shop back in the States and uses the same type of scale for measuring metallic flakes for custom paint and for weighing metals as a hobby. So according to Tuifagalilo when he saw the scale he immediately thought that he could use it for his metal detector. He insisted that not once did he intend to use it for any illegal purposes and that he does not take nor deal drugs.
  4. Tuifagalilo further testified that the scale is usually left in the car. He said he went once or twice to test his metal detector and found a couple of coins. However, under cross examination he admitted that he had never used the scale to weigh metals.[34] According to him the scale is thrown around in front of the silver car and when he goes to the car wash, they usually find it under the seat and then they just put it in the side door or hand it to him. He wrapped it with the plastic bag to keep it secured. The scale according to Tuifagalilo is also moved back and forth in either the white or the silver car. Whichever car is used he takes it with him but not all the time he said, only if he takes the metal detector. He confirmed that when Viiga asked what the scale was for he replied it could be used to measure his dad’s medication. But under cross examination he admitted he did not use it for that purpose either.

Analysis

First limb of s13(b) test - Is there proof that Tuifagalilo was in possession of the scale?

  1. As stated by the Court of Appeal in AG v Vai,[35] the test is two pronged. The Defence do not dispute Tuifagalilo had possession of the scale. So regarding this limb, having analysed the evidence and admissions by Tuifagalilo himself regarding his use and custody of the silver car and how the scale was found on the side door of that car. Also the fact he had knowledge of the scale being in the car which he says is either under the driver’s seat, side door and sometimes thrown around in the front seats. I have no difficulties in finding that the first limb of the test, namely Tuifagalilo had possession of the scale is proven beyond a reasonable doubt.

Second Limb: What was the purpose for which the scale was possessed?

  1. The second step as summarised in Vai is concerned solely with Tuifagalilo’s state of mind at the time of possession. This stage requires a determination of the purpose for which the scale was possessed. According to Vai if attaining that purpose would necessarily entail the commission of another offence under the Act, the primary offence under s 13(b) is complete.”
  2. I have here two versions to consider, Tuifagalilo’s one that he never intended to use the scale for any illegal purpose, and Prosecution’s version that Tuifagalilo was in possession of the scale for an illegal purpose associated with drugs. So it comes down to the issue of credibility and weight I place on the material evidence open to me.
  3. As summarised in the evidence, according to Tuifagalilo he had found the scale by accident and he was familiar with its use as he has a similar scale in the States where he operates a hydraulic shop. He decided to keep it as he says he could use it for his metal detector hobby. This was the legitimate purpose he says the scale was intended to be utilised for. But under cross examination he admitted that he never once used the scale for that purpose.
  4. In fact when Viiga asked him about the use of the scale, on Tuifagalilo’s version he had replied that it could be used to weigh his dad’s medication. Viiga in his evidence confirmed by Tyrone and Aasa who overheard it said that they clearly heard Tuifagalilo replied that he uses it to weigh his dad’s medicines which explains why Viiga had laughed this off saying words to the effect “pe e le lava ia le fua la e fua mai ai e le fomai”. Whichever reply I accept does not matter. The fact of the matter is, Tuifagalilo did not reply that he uses it for his metal detector hobby which is the purpose he alleges he had in mind when he first saw the scale in the boot. Why then did he not say that to Viiga when asked?
  5. On his own evidence, he testified that he takes the scale around with him so that whichever car he uses, white or silver, the scale accompanies him. But then he also said not all the time. However when asked if he had ever used it to weigh metals on the trips to the beach he described the answer was no. It was also not used to measure his Dad’s medication as he clarified it was just a general answer he gave to Viiga when asked but not specific to its use. The question I have is well why was it not used for the purposes he said he intended to keep the scale for?
  6. I find this part of Tuifagalilo’s evidence completely unbelievable and in fact far too incredible. It was almost too good to be true. I do not buy his explanation of how he came across the scale. He says he uses it for metal detector but he never once used it for that purpose. But why would he take it around with him like it was an object of significant value to him? Why would he seal it in a plastic bag “so it is not messed around with” as he describes?” Why were there glittery crystals seen on the scale by Alapati when he first opened it right after it was discovered by Tyrone?
  7. This simply does not make any sense at all to me especially if weighed against the evidence by Police witnesses and the SROS Scientist. In fact it only leads to one plausible conclusion and that is this story by Tuifagalilo about the discovery of the scale and its potential uses was a fanciful lie fabricated by Tuifagalilo to use as a scapegoat to explain away the presence and purpose of the scale as legitimate.
  8. In terms of the chain of custody, there is no viable reason for me to question this. In my view this was not broken. There was certainly no suggestion from the defence this was so and there is no evidence of this nature for me to draw such an inference.
  9. I do not accept a suggestion there could have been tampering with the evidence as there is simply no evidence before me to substantiate such a claim. I do not place any significant weight either to there being no fingerprints taken of the items found a suggested during defence counsel’s cross examination. Herbert had explained that this is not always an easy option to take as the priority is on precluding the possible contamination of crucial evidence from the finger printing testing process.
  10. According to Alapati being an exhibit officer trained for this type of work, as soon as he received the scale from Tyrone by the silver car, he examined it in the light and immediately saw the glittery crystals on the scale. This evidence is unrebutted as not once did Ms Peteru attack its veracity in her cross examination. In fact Tuifagalilo was asked if this was shown to him and he answered “yes”.
  11. The fact that Alapati saw the glittery stuff on the scale when he first examined it suggests that this is not a discovery which occurred some days after the raid to infer possible tampering. Rather it was recent or contemporaneous and took place right there at the crime scene. According to the Scientist he saw droplets or dry residue on the pan of the scale when he received it for testing. He took a swap from it for testing which was tested positive for methamphetamine. There is no good reason why I should doubt the integrity of the examinations and investigation carried out by SROS. There is simply no evidence open to me to make such an inference.
  12. We also have here the independent evidence of Hugo about his dog Flynn. He explained in detail Flynn’s behavioural changes during the search of the silver car . His breathing and sniffing was stronger under the seat and the side of the door. Here Flynn picked up on the strong scent of the substance it was trained to source. Once he was satisfied about this, he looked at Hugo who was intently observing his change of behaviour. Flynn is taught to source the odour of powdered drugs, local and overseas marijuana as well as ammunitions and cleaning oil for guns. Flynn is not taught to lie. The dog cannot lie. Only humans do that and that is exactly what Tuifagalilo tried to do with his version of events.
  13. Significantly, the pattern of interest indicated by Flynn in his change of behaviour was the side of the door to the bottom of the driver’s seat. The scale containing the glittery stuff was actually found on the side of the driver’s door. This makes sense as the scale according to Tuifagalilo’s own evidence was moved around from under the seat to the side of the driver’s door.
  14. Hugo testified Flynn is also trained to pick up the scent of ammunitions and cleaning oil for guns. I had asked Tuifagalilo if he ever used a gun cleaning oil or ammunition and place it under the driver’s seat or right side of the driver’s door. He said “no”. So the only logical conclusion given Flynn cannot talk, is that the scent that Flynn picked up was that of methamphetamine. The final test results by SROS puts beyond doubt the fact that the sample extracted from the scale was tested positive for methamphetamine and I venture further to say that this also explains the crystal like stuff Alapati saw on the scale.
  15. Herbert had explained in detail in his evidence the various indicators of drugs being present and he said that the scale is one such in ` dicator. Others included burners, tubes, point bags, utensils, straws and so forth. But he also told the Court that the presence of only one of those is sufficient as an indicator to a possibility of presence of narcotics.[36] The scale as Herbert described allows the dealer to cut accurate measurement of narcotic in point bag form. This evidence is unrebutted.
  16. The end result is, I find that Tuifagalilo did have in his possession the scale utensil for the purpose of committing an offence against the Act which I have identified as possession of methamphetamine which is listed as a class A narcotic and therefore an offence against the Narcotics Act. Even though no narcotic was found during the raid, I am entitled to draw the above inference on the evidence open to me as discussed in paragraphs 79 to 81 above. There is certainly no evidence suggesting that a different person other than Tuifagalilo could have left traces of the methamphetamine on the scale.
  17. I further infer that Tuifagalilo would have had to have possession of the methamphetamine in order for Flynn to strongly detect its presence in the silver car leading to its remnants being visible to the naked eye on the scale as seen by Alapati and eventually the positive scientific results from SROS. The remnants did not just drop from the sky. Tuifagalilo is the culprit who utilised the scale for an illegal purpose and s13(b) of the Act as alleged is fulfilled.
  18. In my respectful view, the evidence was overwhelming enough to substantiate the charge and hammer home the case for the Prosecution.

CONCLUSION

  1. I find you Tuifagalilo GUILTY of all three charges namely:
    1. Possession of an unlawful weapon namely a .32 Pistol;
    2. Possession of 24 live ammunitions for that pistol; and
    3. Possession of a utensil namely a scale for the purpose of committing an offence against the Narcotics Act 1967.
  2. The Police Commissioner is ordered to destroy the pistol and it ammunitions.
  3. Tuifagalilo you are remanded on the same bail conditions to 16 April 2018 for sentencing.

JUDGE ALALATOA R VIANE PAPALII

[1] Transcript 6/12/17 @ 33.
[2] Transcript 14/12/17 @ 136.
[3] Ibid @137.
[4] Ibid.
[5] Ibid @ 140.
[6] Ibid.
[7] Browne v Dunn (1893) 6 R 67.
[8] Ibid @ 139.
[9] Ibid.
[10] Ibid.
[11] Ibid@140.
[12] Ibid @154.
[13] P v Faisauvale [2010] WSSC 55.
[14] Martin E A (ed) Oxford Dictionary of Law (Oxford University Press: 2003).
[15] Woodage v Moss [1974] 1 All ER 584.
[16] Supra n 2 @ 156.
[17] Ibid @ 148.
[18] Ibid.
[19] Ibid @ 151.
[20] Ibid @ 156.
[21] Ibid & 157
[22] Ibid @156
[23] Hall v Coton [1987] QB 504,
[24] R v Hussain [1981] ELR 416,, [1981] 2 All ER 287, 72 Cr App R 143 quoted in Murphy P (ed) Blackstones Criminal Practice (Blackstones Press Ltd 1993 at 521).
[25] Ibid.
[26] R v Waller [1991] Crim LR 381.
[27] Blackstones, supra n 24.
[28] P v Vai [2008] WSCA 10; Also see P v Masame [2007] WSSC 83 & P v Esera [2008] WSSC 43
[29] Supra n 1 @ 44.
[30] Ibid @ 45 & 46.
[31] Transcript 13/12/17 @ 56, 62, 64.
[32] Ibid @102.
[33] Supra n 2 @ 145.
[34] Ibid @ 160.
[35] Supra n 28.
[36] Supra n 1 @ 34.

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