Police v Mariota [2003] WSSC 6 (13 March 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE

Prosecution
AND

EUINI MARIOTA

male of Alafua
Defendant

Counsel: L Mulitalo and LS Petaia for prosecution
MC Leung Wai for accused

Hearing: 12 March 2003
Judgment: 13 March 2003

JUDGMENT OF SAPOLU CJ

The accused a 38 year old male is charged that at the new market at Fugalei on the 21^st day of September 2002 he knowingly had in his possession a narcotic, namely, a marijuana joint which contained cannabis. The charge has been preferred by the police under s.7 of the Narcotics Act 1967 which as far as relevant provides:

"No person shall knowingly be in possession of, or attempt to obtain "possession of, any narcotic".

Section 7 then enumerates the situations where a person may be permitted to be in possession of narcotics but none of those situations applies or was raised as an issue in this case.

The offence created by s.7 consists of two elements, namely, (a) possession of a narcotic which forms the actus reus of the offence, and (b) knowledge, which is the mens rea element of the offence. Both elements must be proved beyond reasonable doubt by the prosecution. There is no dispute that the police found one marijuana joint in the possession of the accused. What the accused has raised as a defence is that he had no knowledge that the marijuana joint which the police found in his possession was actually in his possession. In effect, the accused is saying that on the evidence adduced by the prosecution the element of knowledge or the mens rea of the offence with which the accused has been charged has not been proved beyond reasonable doubt.

Narcotic related offences are by far the most prevalent within our community. That has been the situation for a number of years now. A large number of the offences of possession of narcotic substances such as marijuana leaves and joints that comes before the Courts now are committed at the market at Fugalei. Recently the police have set up an office at the Fugalei market where they carry out a 24 hour duty everyday.

On Saturday night, 21 September 2002, at about 11:00pm, corporal Silila Fagu who was in charge of the police duty at the Fugalei market apprehended the accused and took him to the police office at the market where the accused was body-searched by constable Mafoa Manoa. The accused was made to face the wall of the police office whilst constable Manoa searched him from behind. A packet of Rothmans cigarettes was found in one of the pockets of the accused’s long pants and when it was opened by the police office it contained one joint of marijuana and nothing else. Also present during the search of the accused were corporal Silila Fagu and constable Pito Faafoa. The accused was then brought to the police station where he was detained that night. All three officers I have just mentioned gave evidence for the prosecution in this case and during cross-examination by defence counsel they denied that the accused made any statement at the police office at the Fugalei market that he does not smoke marijuana.

There was no dispute that the joint found in the accused’s possession was marijuana and it contained narcotic. So I conclude that the prosecution has provide the first element which is the actus reus of the offence with which the accused is being charged.

After the accused was detained at the police station on Saturday night, he was on the following day interviewed by constable Herbert Aati who is the police principal drugs officer. During that interview the accused made a cautioned statement in which he says that he was conversing with one Vena near Vena’s vehicle that was parked at the Fugalei market when the police approached them and took away Vena. It then started to rain so he picked up a packet of cigarettes which was lying on the tray of Vena’s vehicle and put it in his pocket. He then walked to where he had his plantation produce for sale. A police office then approached him and asked him to come over to the police office at the market. He was searched inside the office and he says he was shocked when a joint of marijuana was found inside the packet of cigarettes which he had put in one of the pockets of the long pants he was wearing. There was nothing he could do and he did not know who owned that joint.

Under cross-examination corporal Silila Fagu and constable Mafoa Mano stated that before the police brought the accused into their office at the market, they had already apprehended two other men in connexion with marijuana substances. One of those two men was Vena. This seems to be the same Vena with whom the accused had been conversing earlier on. It is also clear from the evidence given by the police officers under cross-examination that when the accused was brought in to be searched, there were already seventeen marijuana joints on the table inside the police office. It is not clear from the evidence where those seventeen joints came from. What is clear is that the police brought the accused together with Vena and a third man to the police station that same night in connexion with marijuana substances.

The accused elected not to give or call evidence. His counsel submitted by way of defence that on the basis of what the accused says in the cautioned statement he had given to constable Aati, a reasonable doubt has been created as to whether the accused knowingly had in his possession the marijuana joint with which he has been charged. With respect, I must say that I do not believe what the accused says in his cautioned statement that he picked up the packet of Rothmans which was lying on the tray of Vena’s vehicle and put it in his pocket as it was starting to rain without knowing that it contained a joint of marijuana. I would have thought that if the accused had in fact picked up this packet of Rothmans from the tray of Vena’s vehicle, the normal human reaction or curiosity is to open the packet to see whether it contained any cigarettes to make it worthwhile picking it up, putting it in his pocket and carrying it around, even though for a short while, before the police searched the accused. The packet was also virtually empty with only one marijuana joint in it. The joint as described by the police officers was smaller than the size of a cigarette. So the packet of Rothmans must have been every light indeed. The accused if in fact he had picked up this packet from the tray of Vena’s vehicle must have felt that it was very light. I would have thought that the normal human reaction in such circumstances was to open the packet to see if it contained anything or whether it was an empty packet which has been discarded by someone. However, the accused, according to his cautioned statement, put the packet in his pocket and carried it with him, even though for a short while, until he was searched by the police. It was only then, as he says in his statement, that he became shocked as he did not know who owned that joint. In my view the story given by the accused in his cautioned statement is unbelievable and does not rebut the inference to be drawn from the fact of his being in possession of the marijuana joint that he actually knew of the joint that was in the packet which was found in his pocket.

Possession by the accused of the marijuana joint is prima facie evidence of knowledge which constitutes the means rea element of the charge. I have also decided to disbelieve the accused’s story that he did not know of the existence of the joint in the packet that was inside his pocket. In the circumstances of this case it would be for the accused to adduce evidence to rebut the inference of knowledge to be drawn from the fact of his possession of a narcotic substance or to raise a reasonable doubt. This does not mean the legal onus of proof has shifted to the accused. The legal onus of proof still remains on the prosecution. However, the evidential onus which can shift back and forth between the prosecution and the accused during the course of a trial has shifted to the accused to show that he had no knowledge of the narcotic substance found in his possession. However, the accused did not give or call evidence. In Police v Emirali [1976] 1 NZLR 286 (cited by counsel for the prosecution) Mahon J said:

"Physical custody of a container in which drugs are situated will be prima facie evidence of concurrent knowledge of the character of the contents: Police v Rowles [1974] 2 NZLR 756".

In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 (cited by counsel for the accused) Brennan J stated at p.589.

"Again, dependant on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence".

All in all then, I find that the accused was in possession of a narcotic substance, namely, one marijuana joint. I also conclude that he had the necessary knowledge. Accordingly the charge has been proved beyond reasonable doubt.

CHIEF JUSTICE

Solicitors:

Attorney General’s Office for prosecution
Leung Wai Law Firm for accused