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Police v Pouvi [2000] WSSC 43 (6 June 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA


BETWEEN:


POLICE
Informant


AND:


PALAULI I’AULUALO POUVI
of Fa’ala Palauli
Defendant


Counsel: Mr R. Schuster & Ms S. Hazelman for the Prosecution
Mr P. Petaia for the Defendant


Date of Hearing: 29, 30 May, 5 June 2000
Date of Decision: 6 June 2000


REASONS FOR VERDICT GIVEN BY WILSON J.


The accused was charged with ‘knowingly cultivating marijuana plants’ - which is a breach of s.6 of the Narcotics Act 1967. Most of the prosecution witnesses were police officers who were members of a search team who found, on the accused’s family’s land, six plastic bags containing soil and one small marijuana plant in each. The bags were located together in a dis-used taamu patch on top of a hill some distance (some 100 or more metres) from the edge of a coconut plantation and some distance from a road. The bags were surrounded by creepers. There were no fences, or stone walls, or the like, on the land.


The vital issue in this trial was whether the prosecution could prove, to the necessary standard of proof, that the accused was the owner of those plants and therefore knew that the plants, that were growing in the circumstances in which they were found, were there, and that he therefore cultivated them. If it could not be shown that he knew who owned the plants (whether himself or some-one else) and that he knew that they were there and that he therefore cultivated them, then an essential element of the charge (the requisite knowledge of the accused) could not be proven.


In the police interview that was conducted the accused strongly denied the allegation that he knowingly cultivated marijuana plants, and said “It is correct that it is only me who works on our land where the marijuana was found; no-one of my family works there except me, but I do not know who owns the plants”. He had denied (and maintained the denial) knowing anything about the plants. It was implicit in his statements to the police that he was suggesting that some-one unknown to him must have come on to the land without his knowledge and left the bags and their contents there, presumably to collect at some later date.


At the end of the prosecution case the accused submitted that there was no case to answer, which submission, if it had been successful, would have led to a directed verdict of acquittal.


[see May v O’Sullivan [1995] HCA 38; (1955) 92 CLR 654
and R v Galbraith (1981) 2 All ER 1060,

followed in Police v Tiapua Ioakimo Ah Sui and Others, unreported decision of the Supreme Court of Samoa dated 16 September 1999

and Police v Maiava Naititi Senio, [2000] WSSC 7, unreported decision of the Supreme Court of Samoa dated 24 May 2000].


I did not uphold such a submission. I was satisfied, on the evidence as it stood, that the accused “could lawfully be convicted” and that the evidence “was capable of leading to a lawful conviction”.


There was no direct evidence that the accused knew that the marijuana plants were there on his family’s land.


The evidence as to the accused’s knowledge of the existence of the marijuana plants on his family’s land was only circumstantial. The sole piece of circumstantial evidence that was before the Court was the finding of the plants on his family’s land, from which the inference could have been drawn that the accused knew of its existence and therefore cultivated it.


Following the rejection of the no case to answer submission, it was open to the accused to give evidence and/or call evidence in his defence. However, the accused exercised his legal rights not only to decline to give evidence but also to call evidence. Of course, no inference could be drawn adverse to the accused from the exercise of his legal rights in those ways.


The evidence at the end of this trial being no different from what it was at the end of the prosecution case, it remains for me to determine whether I am satisfied beyond reasonable doubt inter alia that the accused knew that the marijuana plants were on his family’s land and, if so, that he knowingly cultivated those plants.


As I indicated previously, there was no direct evidence that the accused knew that the marijuana plants were on his family’s land. Such direct evidence, as was in existence by way of statements made by the accused to the police, was to the contrary, viz. “but I do not know who owns the plants (found on the land where I am the only one of my family who works there)”.


For the prosecution to succeed in proving the knowledge element of the charge of ‘knowingly cultivating marijuana plants’ (s.6 of the Narcotics Act) on circumstantial evidence, the prosecution would need to satisfy me beyond reasonable doubt, not only that the circumstances are consistent with the accused knowing that the marijuana plants were his, but also that the proved facts are inconsistent with any other rational or reasonable conclusion.


Before I could be satisfied to draw an inference that such a fact is so from circumstantial evidence (i.e. that the marijuana plants were his plants), it would be necessary to slow not only that that is a reasonable or rational inference, but also that it is the only reasonable or rational inference that the proved circumstances enable me to draw.


For an inference to be reasonable or rational, it must rest upon something more than mere conjecture. If the inference of the fact being so is the only inference open to me as a reasonable person upon a consideration of all the proven facts in the case, it is proper for me to draw the inference that the fact (of knowledge) is proven. Such a fact is, therefore, proven by circumstantial evidence if the only reasonable inference from the proven circumstances is that the fact is so.


If there is a reasonable or rational explanation (or hypothesis) which is consistent with the fact not being so, that is sufficient to raise a reasonable doubt in my mind and to entitle the accused to a finding that the fact is not proven. The emphasis is on the words “reasonable” and “rational”.


For a fuller consideration of how circumstantial evidence may be used to prove a fact, I refer to - (see Police v Leafa Vitale and Toi Aukuso Cain,an unreported decision of the Supreme Court of Samoa dated 6, 7, 10 and 11 April 2000 - the trial judge’s summing-up).


The reasonable or rational explanation (or hypothesis) which is consistent with the fact not being so is that someone else came onto the land, which was neither fenced nor walled, and, ina sense, lid them there. Knowledge on the part of the accused is not the only rational inference available. Therefore, the essential element of the offence charged here (that is to say, the knowledge of the accused) has not been proven by such circumstantial evidence (which is within a narrow compass) which exists here.


I am persuaded by what was said in the joint judgment of the High Court of Australia in Pereira (1988) 35 A Crim R 382, the Court comprising Mason CJ, Dawson, Toohey and Gaudron JJ (at p.385):


“Even where, ...... actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains of actual knowledge: Giorgianni [1985] HCA 29; (1985) 156 CLR 473 at 504 507; [1985] HCA 29; 16 A Crim R 163 at 186-189; He Kaw Teh at 570; 237. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available”.


(The emphasis is mine).


Because there exists another rational inference here, viz. that the plants were left there by a trespasser, it cannot be said that this essential element has been proven beyond reasonable doubt. The prosecution has not excluded the reasonable possibility that some other person entered the land and left the marijuana there.


I find the accused Not Guilty. The accused is discharged for this information.


JUSTICE WILSON


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