Police v Mathes [2019] WSDC 11 (27 August 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Mathes [2019] WSDC 11 (27 August 2019)

Case name:	Police v Mathes
Citation:	[2019] WSDC 11
Decision date:	27 August 2019
Parties:	POLICE (Prosecution) v VILI MATHES, male of Nuusuatia (Accused)
Hearing date(s):	28th, 29th 30th January 2019 & 29th July 2019
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	For the reasons stated, the prosecution has failed to prove beyond a reasonable doubt the first element of possession against the accused. There is therefore no need to consider the element of mens rea and the charge against the accused is accordingly dismissed.
Representation:	I. Atoa for Prosecution A. Lesa for the Accused
Catchwords:	Possession of utensil – charge dismissed.
Words and phrases:
Legislation cited:	Narcotics Act 1967, ss. 7(b); 13(b).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E:

Prosecution

A N D:

VILI MATHES, male of Nuusuatia

Accused

Counsel: I. Atoa for Prosecution

A. Lesa for the Accused

Hearing: 28, 29 & 30 January 2019 and 29 July 2019
Decision: 27 August 2019

RESERVED DECISION OF DCJ SCHUSTER

The Charge

1. The accused is charged that “... at Mulinu’u Court House between the 31^st day of October 2017 and 13^th of April 2018, the abovenamed defendant of Nuusuatia, has in his possession a utensil namely, one (1) glass pipe for the purpose of consuming methamphetamine to commit an offence against this act”, pursuant to section 13(b) of the Narcotics Act 1967 (the ‘Act’).

The Law

Possession of Utensil

2. Section 13(b) of the Act provides;
   • 13. Miscellaneous offences - A person who:
   • (a)...
   • (b) has in his or her possession a needle, syringe, pipe or other utensil for any such purpose of 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.
3. Section 7(b) of the Act further provides:
   • 7. Possession and use of narcotics – (1) No person shall:
   • (a) knowingly be in possession of, or attempt to obtain possession of, a narcotic, or;
   • (b) knowingly procure, consume, smoke or otherwise use, a narcotic; or
   • (c) attempt to supply or administer, or supply or administer, a narcotic to or on any other person, or otherwise deal in the narcotic in any other manner, –
   • unless expressly exempted under subsection (2).
4. Although section 7(b) of the Act was not cited by the prosecution in its charging sheet, but an amendment made to the charging sheet on 28 January 2019 before the trial commenced specified that the purpose for possession of the glass pipe was to consume methamphetamine, an offence committed against the Act.

Elements of s13(b)

5. The Court of Appeal in AG v Vai [2008] WSCA 10 affirmed the elements that the prosecution must prove for a charge brought under section 13(b) of the Act.
   • 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. 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 the 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 section 13(b) is complete.
6. In paragraph 10 of their Honour’s decision, the Court of Appeal further re-affirmed that the first element of possession of a utensil required:
   • “... the physical one of actual or potential physical custody or control”
   • [See R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 as applied in Police v Chan Chui [2007] WSSC (25 September 2007) and approved in Attorney General v Fuaifale [2016] WSCA 3 (19 February 2016) and see also Police v Barlow [2017] WSSC 168 (3 November 2017)].
7. In Attorney General v Fuaifale, the Court of Appeal explained possession citing R v Cox:
   • “Was Hano in possession?
   • .................
   • [9] The New Zealand Court of Appeal case of R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 contains this discussion at p 278:
   • “Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: Knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and an intention to exercise possession. In the leading case of R v Warner [1969] 2 AC 256, Lord Morris of Borth-y-Gest expressed it this way at p289:
   • “In my view, in order to establish possession, the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it:” (emphasis added).
   • A charge of possession of a controlled drug also requires proof of knowledge by the accused that what is in his possession is a controlled drug; although he need not know its exact nature.
   • We note that this passage has been referred to with approval in a number of New Zealand and Western Samoan cases.
   • [10] Ms Su’a-Mailo relied on the phrase “potential physical custody” as aptly describing Hano’s possession of the marijuana in this case. We do not accept this. Hano had actual possession of the marijuana in a physical sense. The drug was handed to him, he removed sufficient to roll a cigarette and then returned the package to Sanele. We regard the phrase “potential physical control” as relevant where a person does not have immediate actual physical possession of an item, but nonetheless the item is in his or her possession (emphasis added).
   • [11] For example, possessions left in a home, a car or in someone’s desk at work are within their “potential physical custody.” Provided they are aware of the item, and also intend to exercise control over it, then they are in possession of the item because both the physical and mental elements of the definition are satisfied.
8. In Police v Barlow, the defendant was found guilty of possession of a utensil found in the taxi the defendant was traveling in with a companion to collect a package containing ice from Fagalii Airport. Justice Tuala-Warren cited the following passage from the New Zealand Court of Appeal case of Simon v R [2017] NZCA 277 (3 July 2017) (where the accused had actual control and custody of the items) in interpreting the meaning of the phrase “potential physical custody and control” as discussed in R v Cox:
   • The Court agreed with Tipping J’s analysis in Smith v Police (1994) 11 CRNZ 294(HC), that it is possible that the Court in R v Cox did not intend “potential” to govern the word “control” as well as the word “custody”. They say that it is possible that it was intended that the words be read as though a comma appeared before the words “or control”. They went further to say the word “potential” in everyday use involves the concept of having or showing the capacity to develop something in the future. In the context of the possession of drugs, at its extreme the use of the word “potential” could be seen as including the concept of a defendant having the possible ability to get control of drugs at some time in the future, but not having any actual control at the time of the alleged offence. It would be wrong to convict on that basis.

Prosecution’s evidence:

9. The prosecution called seven (7) witnesses. There was no dispute as to the Scientific Research Organisation of Samoa (SROS) Certificate of Analysis finding that residue contained in a glass pipe was tested positive for methamphetamine. This was tendered by consent as Exhibit P1 for the prosecution. The written statement of Inspector Herbert Aati was tendered by consent as Exhibit P2 outlining from his 11 years’ experience as a drug enforcement officer how a utensil as that described in this case may be used to consume methamphetamine. Exhibit P3 was tendered by consent, one page containing two (2) photographs of the alleged glass pipe.

Constable Elohi Stanley

10. Constable Stanley is a 33 year old male and works in the Narcotics division of the Ministry of Police where he has been employed for seven (7) years. Constable Stanley was tasked with the interrogation of the accused on the 24 April 2018 at about 7pm at the Narcotics Division, main Police station in Apia. Present also at the interrogation was Senior Sergeant Viiga Sio. The accused Caution Statement was produced as Exhibit P4.
11. Constable Stanley testified that the accused after being cautioned of his rights said that he was not at work the day the “meafaitino” was brought up and he did not know where it came from. Under cross examination, Constable Stanley stated that upon their bringing into custody the accused, Senior Sergeant Viiga informed the accused prior to the interrogation that he was being investigated pertaining to a glass pipe.

Sailo Paepaega

12. Mr Paepaega (hereinafter referred to as “Sailo”) is a 44 years old male of Alafua and works as the Building Manager for the Ministry of Courts and Justice Administration (MCJA). Sailo testified that there was a time in early April 2018 when he was contacted by a Chinese person about a cheque that was presented at a shop somewhere at Papauta but the cheque bounced. Sailo was missing his cheque book so he went to see the shop owner and was shown a photograph of the cheque which was one of the leaves of the missing cheque book but not his signature. Sailo asked if there was any security camera evidence of the person who presented the cheque and he was shown the footage where he recognised Mane Su’a as the person who presented the cheque.
13. Sailo then recalls about 12 April 2018 upon coming to his workplace confronted Mane who immediately denied his involvement. However, after informing Mane that he had seen the security camera footage, Mane then removed the cheque book from his pocket and handed it to Sailo. Sailo nticed there were about 3 to four cheque leaves already signed by Mane perhaps with the intention to use. Sailo then asked Mane to go into another room where he asked as to what he used the money on. Mane did not talk much but only said “... o le aisa e mafua ai”.
14. Sailo was worried about his money from the cheque book being used to buy ice so he told Mane to get his money back. But sometime in the afternoon, Mane called him and said that he was in front of his (Sailo) room. Sailo then went to see him and went inside Sailo’s office. It was there that Mane pulled out a piece of paper from his pocket and placed it on the desk. Sailo asked what this was and Mane opened the paper revealing a galss pipe like a test tube with an open end. Mane urged Sailo not to tell anyone. Sailo did not know why Mane said this to him but he opened his drawer and kept the pipe there and made arrangements with Mane and his family for the recovery of my money.
15. But by the 16 April 2018, Sailo still had not received his money from Mane and was worried about the pipe in his possession. So he came that morning and gave the pipe to Papalii, the MJCA CEO. However, Papalii told Sailo to give the pipe to Ve’a. On the 18 April 2018, Sailo gave the pipe to Ve’a. The next day, Sailo met with two Police officers Paul and Giovanni at MJCA. Sailo confirmed from Exhibit P3 the same pipe that was handed to him by Mane.
16. Under cross examination, Sailo confirmed that the accused was not present during his meeting with Mane. But when asked that he did not mention Vili’s name to Papaplii or Ve’a, Sailo testified that he asked Mane who else was involved and Mane mentioned the name of Vili.

Ve’atauia Fa’atasi Puleiata

17. Prosecutions next witness was Ve’atauia Fa’atasi Puleiata, a male born on 10 October 1957, employed as a Deputy Registrar and ACEO MJCA (hereinafter referred to as “Ve’a”). Ve’a testified that about 17 April 2018, Sailo Paepaega came to see him with information that Mane had a pipe to smoke ice. He then told Sailo he needed to see the pipe and was worried that this pipe was located within the vicinity of the MJCA where truth and justice is sought. On the 18 April 2018, Sailo came with the pipe and gave it to me. Ve’a testified he then called police officer Tauaaletoa Paul and informed him of the pipe. It was the next day that police came to MJCA and Ve’a handed the pipe over to them. Ve’a was shown Exhibit P3 and confirmed the photographs were likely resemblance of the pipe that he gave to Police.

Neville Katopau

18. Neville is a 38 years old male who is a prisoner at Tafaigata. Neville testified that he knew the accused as they both were in a group of users of prohibited substances from 2015 to October 2016. Neville had not seen Vili from October 2016 until the end of 2017 when Neville and his wife opened a canteen underneath the steps at the MJCA. Neville testified Vili asked him why he had not come around the group anymore and Neville answered that he was not a user anymore. That was the last time Neville spoke to Vili until February 2018 when Neville was posted to serve part of his prison sentence at the MJCA as a cleaner.
19. Neville testified that 3 days into his post at MJCA, Sailo asked him in Sailo’s office what he knew about “aisa”. Mr Lesa objected as there was no testimony from Sailo that he spoke to Neville. Neville testified that on the Monday of the following week after meeting Sailo, he met the accused in front of the toilets opposite the Registrar’s office at the north side of the building. Neville testified that Vili was just asking how he was but then suddenly asked him if he knew what happened that Mane gave the pipe used to smoke ice to Sailo. Neville then specifically asked Vili who owned the pipe and Vili told him it was his but left it to Mane as Mane had the money to buy the ice.
20. Neville testified that the next day, he met the accused again in the morning as the accused came to smoke his cigarette. The accused told Neville that his name was now mentioned in the investigation and that he just wanted to assault Mane. The next time Neville saw the accused was Thursday of the same week late afternoon going into the evening. Neville testified the accused told him that Mane was in custody. It was the same day that Neville saw Police officers at the court house and assumed it was for this matter that the accused was talking to him about. Neville testified that he was questioned about this matter as many people at the MJCA see him talk to the accused a lot. Neville’s purpose in testifying is to help the accused get off prohibited substances as he is related to his wife.
21. Under cross examination, Neville said he saw the accused in 2015 but did not know him. On the 24 April 2018, he was taken to the Police station to make a statement by Police officer Viiga. Fa’atasi took him to the Police Station after Fa’atasi asked him whether Vili consumes ice. Neville told Fa’atasi yes. This evidence was not part of Fa’atasi’s sworn oral testimony. Neville testified that he saw the accused consume ice in 2015. Neville confirmed under cross examination that he was convicted previously for marijuana and had been taking prohibited substances for three years but not anymore.
22. During re-examination, Neville testified that he recalls he started his cleaning post at MJCA on 11 April 2018.

Giovanni Krueger

23. Giovanni is a male Police Constable with 11 years’ service with the Ministry of Police. Giovanni specialises in fraud and theft cases in the Criminal Investigation Division. Giovanni testified that on 19 April 2018, they were handed a glass pipe wrapped in a piece of paper by Fa’atasi Puleiata at the MJCA suspected being used by some persons within the MJCA to consume ice. Present were Senior Sergeant Paul Tauaa and the MJCA Building Manager. Giovanni then proceeded to take photos of the pipe and confirms the same photos in Exhibit P3 shown to him taken on the 19 April 2019.

Viiga Sio

24. Viiga Sio is a male Senior Sergeant with the Ministry of Police with over 15 years of service where over 10 of those years have been with the Criminal Investigation Division. He is currently serving in the General Policing Division. Viiga is the Investigation Officer of this matter and received a complaint on 19 April 2018 relating to a fraud case of Sailo’s cheque book. On the 23 April 2018, Sailo’s statement was taken and Mane was interviewed on 24 April 2018. However, Sailo subsequently withdrew his complaint and Mane was then transferred to the Narcotics section to be interviewed for possession of a pipe.
25. Viiga testified that Mane was reluctant to make a statement but eventually cried close to the end of the interview and said if he was the only person charged with this matter. Mane then agreed to make a statement and disclosed the accused name. on the 25 April 2018, we came to the MJCA to inform the accused and to escort him to the Police Station. The accused questioned as to what reason he was being interviewed and Viiga told him was in relation to the matter Mane was being questioned. Viiga testified that the accused behaviour arising from his many questions along the way from the MJCA to the Police Station and worried look suggested to him that the accused was involved with this matter. Viiga then instructed Constable Elohi to caution the accused as Viiga had reasonable grounds to charge the accused based on Mane and Sailo’s statements.

Mane Su’a

26. Mane Su’a is a 23 years old male and works at the Samoa Victim Support Group as a legal advisor. Mane previously worked in the MJCA from 2014 to 2018 as an Assistant Registrar in the Supreme Court. Mane testified that sometime in April 2018 in the afternoon, Sailo questioned him in Sailo’s office about Sailo’s lost cheque book. Mane further testified that Sailo questioned him about rumours of other staff involved in ice and asked Mane where the utensil was. Mane testified that is the reason he then told Sailo and gave Sailo the utensil. Mane testified that the pipe was given to him by the accused in the morning before work commenced of the same day that he gave the pipe to Sailo. He then kept it in his coat pocket in his room and transferred the utensil into his cupboard before he started court work. Mane then met with Sailo sometime in the afternoon and he came and collected the pipe from his room and handed it to Sailo.
27. Mane testified the reason the accused handed the pipe to him was because the accused wanted Mane to hold on to it while the accused awaits receipt of the purchased prohibited substance which was supposed to be received that morning. Mane said he gave the accused about ST$200 the day before to purchase the prohibited substance. This was monies taken by Mane from Sailo’s cheque account. Mane denied that he owned the pipe and did not know who owns the pipe only that it was handed to him by the accused. It was the same pipe that he and the accused used to consume prohibited substance sometime in 2017 during a MJCA party. But Mane did not say as to who brought the pipe on that occasion.
28. Under cross examination, Mane agreed with Mr Lesa that Sailo had no suspicion about ice but it was Mane that told Sailo the money was used for ice. Mane further agreed that he never mentioned to Sailo that the accused gave him the pipe that same morning. Mane testified that he told Fa’atasi about the pipe before Police arrived and took him for questioning and again to Fa’atasi after he was released. During the first conversation, Mane confirmed he never mentioned the accused name to Fa’atasi or that he told Fa’atasi that the accused gave him the pipe.
29. When questioned as to the reason why he gave up the accused name, Mane testified that it was only when interrogated by Viiga that he was told there was a list of workers given to them by Ve’a (Fa’atasi) and that the accused name was included. When asked by Mr Lesa that there was no such list in Ve’a’s testimony, Mane responded that it was not a written list but a list of names that Ve’a informed the Police about. Mane confirmed that Viiga first mentioned the accused name to him before the interrogation started. However, Mane further responded that the reason he mentioned the accused’s name was because both of them were involved and the pipe was the property of the accused. Mr Lesa put to Mane that the accused did not give him a pipe the morning of the same day that the pipe was handed to Sailo nor did the accused arrange for monies with Mane to buy prohibited substances. Mane insisted that the defendant did so do as he testified. Mane confirmed that at the time of the investigation, he was using prohibited substances and that he was dishonest in the taking and using of Sailo’s cheque book and monies.

Defence Evidence

Vili Mathes

30. Vili is a 29 years old male of Alafua and Nuusuatia. Vili testified that he was not at work at MJCA on the 12 but not recall the month 2018 the day upon which Mane gave the pipe to Sailo and he did not know anything about a pipe. Vili further denied that he made any arrangement with Mane as to monies for the purchase of prohibited substances.
31. Vili testified that he returned to work the day Police came to the MJCA and took Mane and heard that something happened the day before. The following day after court work which was a Thursday but he could not recall the date or month, Vili testified Police came to see him and asked to accompany them to the Police Station. Vili said he asked them several times as to the reason why he was being asked to come to the Police station only to be told that it was in relation to the incident in the MJCA.
32. At the Police Station, Vili testified that they arrived after 5pm but it was only after 8pm that he was interviewed by Police and cautioned as to his legal rights. Vili testified that he continued to ask as to why he was being detained but only informed during the interview that it was for the utensil reported from the MJCA. Vili confirmed when shown Exhibit P4 his caution statement that the interview was conducted on the 24 April 2018. Vili was referred to page 3 and asked to read where he denied his involvement with a utensil the subject of the Police investigation. Vili continued to deny that he did not touch the said pipe, he did not see it nor did he give to Mane.
33. As to Neville’s testimony, Mane denied that he spoke to Neville nor would he talk to Neville about personal things of this nature. Vili denied that he spoke to Neville about Mane as well as that he told Neville that he owned the pipe. Vili denied that he was a user of prohibited substances and upon being shown Exhibit P3, denied that he ever saw such a pipe before.
34. Under cross examination, Vili was asked as to how he could be sure as to the day that Mane gave the pipe to Sailo if he was not at work. Vili testified that it was only when he returned to work that he found out that something had happened and that the day he found out that Mane gave the pipe to Sailo was the same day he was not at work. Vili was further questioned to confirm that Sailo testified having received the pipe from Mane on the 12 April 2018 therefore that must have been the date he was not at work. Vili responded he does not recall whether it was the 12 or another date but it was upon his return to work that Police came to the office and he found out the day that Mane gave the pipe to Sailo was the same day he was not at work.
35. Prosecution put to Vili that he did sign the attendance book on the 12 April 2018. Vili responded his evidence is unchanged. Prosecution decided at the end of its cross examination not to call evidence in rebuttal to refute Vili’s evidence that he was not at work the day Mane handed the pipe to Sailo.
36. Vili was questioned extensively as to his alleged admission to Neville that he owned the alleged pipe that was handed to Sailo by Mane. Vili denied that he never had any such conversation with Neville about Mane and the alleged pipe as well as the handing over of the pipe to Sailo.

The decision making process

37. Before I begin my consideration of the evidence and the law, it is important that I set out my role in a Judge Alone Trial. I am required to decide whether the essential elements constituting the alleged offence has been proved beyond reasonable doubt.
38. This is a criminal prosecution. The onus is on the police to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charge.
39. In this case the defendant has elected to give evidence himself. The fact the defendant gave evidence does not change the onus or standard of proof.
40. I have considered all of the evidence that has been placed before me in this case. This includes the evidence given under oath and the exhibits.
41. The evidence that I heard in this case featured various conflicts, and therefore it cannot all be correct. The divergence in the evidence simply does not allow for that to occur. I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.
42. It is necessary in any criminal trial to consider the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject anything that a witness says. I am entitled to accept and reject whole or parts of what a witness said in their evidence.
43. I also emphasise that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt. In doing that, however, it is necessary for me to resolve some primary disputes over the facts.

Discussion

Was Vili in possession?

44. The first crucial issue in this case for the prosecution is whether the accused was in possession of the pipe in the manner the Court of Appeal described it in Attorney General v Fuaifale:
    • [10] “...... Hano had actual possession of the marijuana in a physical sense. The drug was handed to him, he removed sufficient to roll a cigarette and then returned the package to Sanele. We regard the phrase “potential physical control” as relevant where a person does not have immediate actual physical possession of an item, but nonetheless the item is in his or her possession.
    • [11] For example, possessions left in a home, a car or in someone’s desk at work are within their “potential physical custody”. Provided they are aware of the item, and also intend to exercise control over it, then they are in possession of the item because both the physical and mental elements of the definition are satisfied.”
45. The facts are disputed. However, one undisputed fact is that the accused was never found by Police with actual physical possession of the pipe. The physical possession of the accused of the pipe as well as knowledge so far as to the circumstances of the 12 April 2019 is concerned is alleged through the evidence of prosecution witness Mane Su’a. Mane Su’a testified that the pipe was given to him by the accused the morning of the 12 April 2019, the same day that Mane was questioned by Sailo about Sailo’s cheque book and Mane handed the pipe over to Sailo.
46. At this point, it is necessary to go back to the wording of the charge:
    • “.... at Mulinu’u Court House between the 31^st day of October 2017 and 13^th of April 2018, the abovenamed defendant of Nuusuatia, has in his possession a utensil namely, one (1) glass pipe for the purpose of consuming methamphetamine to commit an offence against this act”.

Prosecution’s case

47. It was not clear from prosecution how they were running their case against the accused in relation to the first element of possession. Is it that the accused at Mulinuu Court House had actual physical control of the pipe from the 31^st day of October 2017 to the 12^th day of April 2018 and then on the 12^th April 2018 the accused had potential physical control after handing the pipe to Mane? If so, then it must be inferred or presumed from the facts that the accused had actual physical possession and was aware that the pipe was in his possession and intended to exercise possession (R v Cox).
48. Or is it the prosecution’s case that it need not matter what day Mane received the pipe from the accused, the accused had “potential physical control” of the pipe from 31^st day of October 2017 to the 13^th day of April 2018 at Mulinuu Court House? The testimony of Mane is crucial for the prosecution as to this point.
49. There is no direct evidence as to the accused being in actual physical possession of the pipe from the 31^st day of October 2017 to the 13^th day of April 2018 except Mane’s testimony concerning the 12^th of April 2018. The prosecution perhaps then suggest because the accused handed the pipe to Mane on the 12 April 2018, therefore it can be inferred that only the accused had physical possession of the pipe from the 13^th October 2017 to the 12 April 2018 or most probably that was the case.
50. In reviewing the evidence as to this issue, the whole of the prosecution’s case rests on the testimony of Mane. Although Neville’s evidence may also be relevant so far as to the accused’s alleged verbal admission as to the existence of “a pipe” and ownership, it cannot in my view be reconciled with Sailo, Fa’atasi or Mane’s evidence if Mane’s evidence, or part of it, is to be accepted as establishing the truth of what had actually occurred.
51. Neville testified he knew of the accused as they were in a group who regularly consumed illegal substances like ice since 2015 to October 2016. However, Neville made no mention of having seen the accused use a “pipe” particularly the pipe alleged in this matter. He next met the accused late 2017 when Neville and his wife started a canteen under the north steps of the MJCA building. Neville started serving a prison sentence late 2017 or February 2018 for theft as an employee. Neville did not see the accused again until he was posted in April 2018 as a prisoner to clean the MJCA building. He recalled on his third day into his post, Sailo took him to Sailo’s office and asked him what he knew about “ice”. This part of Neville’s evidence was not corroborated by Sailo.
52. The following week on a Monday, the accused came to smoke a cigarette just outside the MJCA toilets seaward side of the building and the accused admitted to him that he owned the pipe that Mane gave to Sailo. Sailo testified that the pipe was handed to him by Mane sometime in the afternoon of 12 April 2018 which was a Thursday as confirmed by Mr Lesa under cross examination of Neville. Neville testified he met the accused again the very next day at the same place when he came to smoke his cigarette and told him that his (Vili) name was now mentioned in the investigation. The last time Neville met with the accused was Thursday of the same week at the same place where the accused told Neville that Mane was in custody. This was the same day Neville witnessed police at the MJCA and suspected the police were there because of what Sailo asked of him and what the accused told him. Constable Giovanni and Senior Sergeant Viiga’s evidence confirmed that the matter was reported on the 18 April 2018 and attended by police on the 19 April 2018 which fell on a Thursday.
53. On the 24 April 2018 six days after Mane was apprehended, Neville said that Fa’atasi questioned him if the accused consumed ice and he said yes. Fa’atasi then took him to the police station to make a statement. This part of Neville’s evidence was not corroborated by Fa’atasi.
54. In crucial parts of Neville’s evidence, there appears an element of coincidence particularly his encounter with Sailo relating to the subject of “ice” and his subsequent meetings with the accused regarding the same issue. At least as of the Monday 16 April 2018 according to his testimony he was aware of the matter with the pipe but only when Fa’atasi questioned him on 24 April 2018 if the accused consumes “ice” did he volunteer information. Neville says the only reason he became prominent in the investigation was because Vili was seen by people talking to him previously.
55. Neville admitted under cross examination he did not know the accused all that well despite being allegedly involved in illegal drug use going back to 2015. Despite that, he was conveniently the recipient of personal and incriminating information when encountered by the accused three times in one week at the same place when the accused happened to come for a smoke. The first conversation moved immediately from the usual salutations to the accused saying:
    • “... ua tago mane ave le paipa e ula ai le aisa ia sailo ..... ou fesili ia vili poo ai e onaina le paipa, ae tali vili o ga ia e oga le paipa ae na tuu ia mane ...”.
56. It appears from his response that this was the first time Neville became aware of a pipe and therefore follows that he had never seen the pipe either.
57. However, the accused under oath vehemently denies he was at work during this time having met and made any such admission to Neville. If the veracity of the accused evidence is plausible, it would negate Neville’s evidence as a fabrication. The accused testified that he was not at work the day that Mane handed the pipe to Sailo which was the 12 April 2018 from Sailo’s testimony. The accused said that he came to work the day police came to the MJCA and apprehended Mane which was 24 April 2018 in the testimony of Viiga. This would refute Neville’s evidential timeline that he started his post at MJCA 11 April 2018, he met with Sailo on the third day of his post (which would make it Friday 13 April 2018) and the following Monday met with the accused (16 April 2018). Neville then next met with the accused the following day (Tuesday 17 April 2018) and finally on Thursday (19 April 2018) the same day he saw police come to the MJCA. The prosecution at the end of its case decided not to call rebuttal evidence as to the accused assertions that he was not at work from the day Mane handed the pipe to Sailo until 24 April 2018 when Mane was taken in for questioning. This is one conflict that would have to be resolved as to the credibility of the witnesses as the two versions cannot all be correct.
58. The accused confirms that he did not know Neville that well and therefore would not follow that he would disclose such damaging information even if it were true.
59. Neville confirmed in his evidence in chief and under cross examination that he was a former user of illegal substance and was currently serving a prison term for using monies of his former employer Alnima Motors.
60. It may very well be that the accused and Neville met and had a conversation on three separate occasions during the time in question. What is at issue is if there were these encounters as Neville testified particularly the first with the accused, did it result to an admission by the accused as to knowledge and ownership of the pipe. The circumstances of Neville’s evidence stated above on its own and related to other evidence leads me to answer “no” particularly where the prosecution declined to call rebuttal evidence. Neville’s testimony did not strike me as genuine or truthful but of recent fabrication perhaps based on what information was already publicly known at the Court House prior to the morning of 24 April 2018 when he was escorted to take his statement at the police station. For whatever reason, his prior history of admitted drug use and dishonesty leaves me with much doubt that his intentions in this case and testifying were of a truthful nature.
61. We therefore return to Mane’s testimony as the prosecution remaining witness to the accused possession of the pipe. There is a clear conflict between Mane’s evidence and the accused. There is also a clear conflict between Mane’s evidence and other prosecution witnesses. Mane testified that the accused gave him the pipe the day before he gave Sailo the pipe because the accused wanted him to hold on to the pipe as the illegal substance bought was late in its delivery. The accused rejects this as he was not at work that day until the 24 April 2018 the same day police came and took Mane. Mane testified that he met Sailo in the afternoon and Sailo told him to bring the pipe. Sailo confirmed that he confronted Mane about his cheque book when he came to work on the 12 April 2018. Mane then immediately handed him the cheque book when he was confronted with the evidence against him. The same day in the afternoon, although he did not ask for the pipe, Mane handed him the pipe.
62. Mane testified that it was Sailo who questioned him about the pipe and asked him to get the pipe. Sailo testified that he only asked what the money was used for as he wanted to recover his money an amount of about ST$15,000. Mane told him it was used to buy ice. It was sometime in the afternoon of the same day that Sailo got a call from Mane that he was in front of his office. It was in his office that Mane gave him the pipe. Sailo testified that perhaps Mane was afraid he was now caught and felt remorse and to show that he was telling the truth as to what the money was used for is the reason why he gave him the pipe.
63. Mane confirmed under cross examination that he never volunteered the accused name nor stated that the accused gave him the pipe the day before to Sailo, Fa’atasi or Viiga. Under cross examination, Sailo testified that he did not mention the accused’s name to Papalii or Ve’a. but he did ask Mane out of curiosity who else was involved in ice and Mane mentioned the accused name as one of the users of ice. But it was only as to those involved in the use of ice within the MJCA staff.
64. Viiga testified that Mane became emotional and asked if he was the only person being investigated as there were others. It was then that Mane mentioned the accused name. Viiga did not testify putting a list of names from Fa’atasi to Mane. However, Mane testified that Viiga told him there was a list of names they have from Fa’atasi and the accused name was on it. Under cross examination, Mane said he only gave up the accused name because Viiga brought it up. Notwithstanding as to who brought up the accused name, what is evident is that Mane never testified disclosing to Viiga that the accused gave him the pipe the morning of the same day he gave the pipe to Sailo.
65. Fa’atasi testified as to receipt of the pipe from Sailo on 18 April 2018. There was no evidence that he met with Mane or Neville regarding the pipe and as to who else was involved. Fa’atasi’s evidence testified only to the fact that he received a verbal report from Sailo and a pipe on the 17 and 18 April 2018 respectively. He then contacted police as he was concerned he had possession of the pipe and the involvement of MJCA staff.
66. I find Mane’s evidence to be deliberate and self-preserving. It is a questionable coincidence that the day Sailo came to be aware of the pipe was the same day the accused is alleged to have handed the pipe to the care of Mane for the sole reason to hold on to whilst they await the late delivery of purchased prohibited substance for their consumption. Whether this is true or not would have to be tested looking at the totality of the evidence.
67. Why it was necessary for the accused to give Mane the pipe was not elaborated on by Mane in his evidence in chief nor under cross examination. The nature of such a pipe, however, was for the purpose of making it possible to smoke a narcotic [see Inspector Herbert Aati’s statement produced by consent Exhibit P2]. Therefore, it would logically follow that the one in possession of the pipe will be in control of when and where the smoking of the narcotic will take place.
68. The fact that Mane did not implicate the accused when confronted by Sailo on 12 April 2018 as having given him the pipe that morning and also as someone who benefitted from Sailo’s stolen monies poses more questions as to Mane’s credibility. Having received the pipe from the accused that same morning, it would have been in his interest to disclose that information particularly now having been found out by Sailo. However, the only time Mane implicated the accused was on 24 April 2018 - 13 days after the matter first came to light - when questioned by Senior Sergeant Viiga at the police station at Apia. But even in that interview, Mane only said to Viiga: “... pe na o ia laa molia ile mataupu. ... leaga lea lau lavelavea na o au ile mataupu lenei”. Mane never mentioned a pipe. Viiga confirmed under cross examination that he never asked the accused as to possession of a pipe or the ownership of a pipe. The only time the accused was questioned about a pipe was when his caution statement was taken by Constable Elohi (see Exhibit P4).
69. It is a matter of judicial record that Mane had already pleaded guilty in the District Court and sentenced on 3 September 2018 “... to come up for sentence within 12 months if called upon” to the charge of possession of a utensil for the purpose of committing an offence under the Act. This is in relation to the same pipe that the accused is being charged.
70. In R v Simon, the court stated that it would be wrong to convict an accused under the phrase “potential physical custody or control” where the accused could be seen as having the possible ability to get control of [a pipe] for the purpose of consuming methamphetamine at some time in the future, but not having any actual control at the time of the alleged offence.
71. As to both scenarios, there is no other evidence apart from Mane or Neville direct or indirect connecting the accused to the pipe in relation to the element of possession at the time of the alleged offending. I find that Mane’s evidence is unreliable as to his receipt of the pipe. The accused’s testimony that he was not at work from the 12 to 23 April 2018 stands unrefuted but for Neville’s evidence. However, I have already found Neville’s evidence as unreliable. Whether the accused evidence is believable or not, the fact that prosecution did not press on calling rebuttal evidence has attracted reasonable doubt on this issue.
72. The evidence leads me to conclude that Mane had possession and control of the pipe at the material time. The evidence does not lead the court to conclude that the only inference to be drawn from the facts is that the accused alone had physical possession, custody or control of the pipe from the 31^st day of October 2017 to 13^th day of April 2018. In fact, Mane’s conviction as to possession of the pipe and his own testimony of handling the pipe is also evidence that the pipe was in the possession of someone other than the accused at the time of the alleged offending notwithstanding Mane’s denial of ownership. If so, this same evidence would negate the possibility of potential physical possession against the accused on 12^th April 2019.

Decision

73. For the reasons stated, the prosecution has failed to prove beyond a reasonable doubt the first element of possession against the accused. There is therefore no need to consider the element of mens rea and the charge against the accused is accordingly dismissed.
    

DCJ SCHUSTER