Police v Sola [2004] WSSC 3 (16 January 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SAUILEONE SOLOMONA SOLA
aka SOLOMONA SOLOMONA SOLA of Faleula.
Accused

Counsel: LS Petaia for prosecution
MC Leung Wai for accused

Hearing: 8 December 2003
Judgment: 16 January 2004

JUDGMENT OF SAPOLU CJ

The accused is charged under ss7 and 18(2)(a) of the Narcotics Act 1967 that at Faleula-uta, on the 5^th day of July 2003, he knowingly had in his possession narcotic substances, namely, forty two thousand seven hundred and forty eight (42,748) seeds of marijuana. Section 7 of the Act, which is the relevant offence provision, provides as far as relevant:

"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 to or was raised as an issue in this case. Section 18(2)(a) is the penalty provision and it provides for a maximum penalty of seven years imprisonment.

The offence of possession of narcotics which is created s7 consists of two elements: (a) possession of a narcotic which forms the actus of the offence, and (b) knowledge, which is the mens rea element of the offence. Both elements must be proved by the prosecution beyond reasonable doubt. The real issue in this case is whether the prosecution has proved the charge beyond reasonable doubt. There is really no contest on the evidence as to whether the prosecution has proved the first element of the charge. The evidence which was adduced by the prosecution that a white keg containing a plastic bag of marijuana seeds was found in the lean-to of the accused’s house has established the first element of the charge beyond reasonable doubt. In fact the accused does not dispute that evidence. It is the second element of the charge that is in dispute. To determine whether the second element has been proved, I will now turn to the evidence.

At about 5:45am on Saturday morning, the 5^th of July 2003, a police search party which comprised of officers from the police special drugs squad and the CIB left the police station in Apia in two police vans to search the accused’s premises at Faleula-uta for marijuana. The leader of the police search party, senior sergeant Sui Pahetogia, had the necessary search warrant. According to his testimony, when the police arrived at the accused’s house at Faleula-uta, which is a small Samoan-styled house with a small lean-to (faase’e) at the back, he entered the house and then showed the search warrant to the accused’s wife who was the only person in the house. She appeared to understand the search warrant. The police then searched the accused’s house and his land. In the meantime senior sergeant Sui Pahetogia remained with the accused’s wife in the house. The police also found some money. That money was placed on the table before senior sergeant Sui Pahetogia and the accused’s wife.

Shortly afterwards, constable Feterika Motu, a member of the police search party, found a white keg inside the lean-to of the accused’s house. This keg contained a large plastic bag of marijuana seeds. The police took the bag and gave it to their exhibits man, constable Lawrence Talamaivao. When the police returned to Apia, they brought with them the bag of marijuana seeds and the accused, whom they had found on the land. On arrival back at the police station, the marijuana seeds were counted and there were 42,748 seeds. Samples of the seeds were taken and sent to New Zealand for scientific tests whether they contained narcotic. The scientist who did the tests was brought from New Zealand by the police and she testified that the samples she tested contained narcotic.

According to the testimony of senior sergeant Sui Pahetogia, whilst he and other police officers were counting the marijuana seeds inside the police conference room, the accused said to him in a low voice if he could bring his large pig and $500 but set him free. Senior sergeant Sui Pahetogia also testified that the accused said to him that he was sorry and he felt the offence he had committed. Counsel for the accused subjected this part of the evidence by the senior sergeant to detailed cross-examination. Even though the senior sergeant repeated under cross-examination that the accused said to him in a low voice that he would bring his large pig and $500, he also said that he instructed the police to bring in the old man who was at the time staying at the accused’s house to make a statement. The police went and got the old man. What senior sergeant Sui Pahetogia said to have been related to him by the old man when the old man was brought in by the police is hearsay and inadmissible because the prosecution did not call the old man to testify. The senior sergeant also said that the police brought two speakers from the accused’s house. There was no explanation given for the police taking the two speakers from the accused’s house. The accused testified that up to the time of the hearing of this case he had not been given back his speakers. The senior sergeant, however, denied that the police took any money from the accused’s house which is contrary to the evidence given by the accused.

Constable Feterika Motu who was also called as a witness by the prosecution, testified that he was a member of the police search party that searched the accused’s premises. He also testified that when the police arrived at the accused’s house, no one was present except the accused, his wife and an old man. Later under cross-examination, he testified that the police only found the old man when they were searching the land, but the old man was not present in the house when the police arrived. This witness also said that it was him who found the white keg containing a plastic bag of marijuana seeds in the lean-to of the accused’s house. The seeds were then shown to the leader of their search party and then handed over to their exhibits officer.

Constable Galu Frost who was also called as a witness by the prosecution, testified that he was another member of the police search party that searched the accused’s premises. He also testified that when the police arrived, only the accused and his wife were present in the house. This is inconsistent with the evidence of senior sergeant Sui Pahetogia that when the police arrived at the accused’s house only the accused’s wife was in the house. Constable Galu Frost also said that when the police returned to Apia after their search, they came with the accused and a keg which contained a plastic bag of marijuana seeds. He further said that the accused’s wife spoke to him about her money that was missing but he was not aware of any money. This witness also said he was present when the accused came to the police station the following week to ask for the return of his money.

Constable Filipo Langkilde, another member of the police search party, testified for the prosecution that he was the security officer for the search party. He said when the police arrived at the accused’s house, he saw the accused in the house. He then saw the accused walked away from the house and he hurried to the accused and told him that he was under police supervision. He also said that senior sergeant Sui Pahetogia then instructed him to take the accused to the police van. This is inconsistent with the evidence given by the senior sergeant that he first saw the accused in one of the police vans as they were leaving the accused’s premises. Under cross-examination, this witness said that whilst he was in the van with the accused, the latter said to him that he (the accused) knew that he was being arrested because of the marijuana seeds. Counsel for the accused then put to this witness that in his police report/statement there is no mention of the accused having said that he knew he was being arrested because of the marijuana seeds. The reply by this witness was that he was only instructed to report on the marijuana seeds he counted.

Constable Pereniseaila Ifo, another member of the police party that searched the accused’s premises, was also called as a witness by the prosecution. This witness testified that whilst he was in the police van with the accused, another police officer brought a plastic bag to the van. It is not clear who was that police officer. He then asked the accused who owned those things and the accused admitted it was him. Later after arrival at the police station, he obtained a cautioned statement from the accused. He said that during his interview of the accused regarding the marijuana seeds, the accused admitted to him that the marijuana seeds were found in his house. The accused also admitted to him that it was him (the accused) who owned the marijuana seeds.

Under cross-examination of this witness by counsel for the accused, it was pointed out to the witness that there is nothing in the cautioned statement which says that the accused admitted that he owned the marijuana seeds. Under further cross-examination, the witness said that the accused changed his story during the interview and said that the marijuana seeds belonged to the old man who was staying in his house. However, there is nothing in the cautioned statement about this alleged change of story by the accused. Under further cross-examination, this witness said that the accused had told him it was the old man who owned the marijuana seeds but he did not believe him because he thought the accused was lying. So he did not put that matter down in the cautioned statement. He only typed down what suited the charge.

This witness also testified that he informed senior sergeant Sui Pahetogia of what the old man mentioned by the accused. This must be the reason for the senior sergeant instructing the police to get the old man. However, constable Pereniseaila Ifo said that he did not obtain a statement from the old man, whose name is Eli, because the old man is related to the accused. It is not clear on what basis he formed that opinion because the evidence given by the accused and other witnesses called for the defence show that this old man known as Eli is not related to the accused. The police seem to have wasted their time in returning to the accused’s premises at Faleula-uta to bring the old man to the police station if no statement was obtained from the old man when he was brought in to the police station.

The last witness who was called by the prosecution was constable Lawrence Talamaivao who is an experienced officer. He was the exhibits officer for the police search party. Under cross-examination, this witness said when the accused was taken into one of the police vans at Faleula-uta, he showed the accused the marijuana seeds and the accused said they were his seeds. Counsel for the accused then further asked the witness as to why this particular matter was not mentioned in the witness’s evidence in chief or in the police report he had previously made concerning this case. The witness replied that he was not asked about this matter during the examination in chief and even though the police search of the accused’s premises took place on the 5^th of July 2003, his report was prepared on the 22^nd of October 2003 so that he might have overlooked to put down this matter in his report because of the passage of time.

The accused elected to give evidence. He testified that the marijuana seeds with which he has been charged do not belong to him. He said that an old man was staying at his house. This old man used to live from one family to another in his village. At the time of the police search the old man was living at his house. The accused said that on the night before the police search, he and his wife had attended a family meeting for a funeral in American Samoa. The meeting ended late at night. When he and his wife returned home, he noticed that the old man who had been staying behind at their house was under the influence of alcohol. Early the next morning, he woke up and went to the toilet. From there he saw the police officers. He came out and asked them if they wanted something. One of the police officers asked him if he was Sauileone and he replied yes. He was then led to one of the police vehicles.

The accused further testified that at the police station a bag of seeds and a bottle of homebrew were placed in front of senior sergeant Sui and he was asked by the senior sergeant about those items. The accused said he told the senior sergeant that he did not know who owns them. He also told the senior sergeant that he did not know about those matters as he and his wife had been away from their house the previous night. He further told the senior sergeant to bring in the old man at his house because it was the old man who had waited in his house whilst he and his wife attended a family meeting for a funeral on the previous night. According to the accused, senior sergeant Sui then instructed some of the other police officers to go and bring in the old man. It is clear from the evidence that the police did bring in this old man but the prosecution did not call the old man as a witness.

The accused then said that constable Pereniseaila Ifo interviewed him about this matter but he denied the allegation against him. The police officer then asked him for a written statement but he told the police officer he had no statement to make as he did not know anything about this matter. He then told the police officer about the old man who was staying in his house. The reply by the police officer as to what the old man had told him about this matter is hearsay and inadmissible. The prosecution should have called the old man to give evidence himself. The accused himself also did not call the old man. He explained that when he was released from police custody the day after he was arrested, he returned home and found out from his wife that the old man had not returned home since he was brought by the police the previous day. The old man has not been seen again in the accused’s village since that time.

The accused also denied that he said to constable Filipo Langkilde inside the police van that he knew he was being arrested because of the marijuana seeds. He also denied the evidence of constable Lawrence Talamaivao and said that he never admitted to any police officer in the police van that he owned the marijuana seeds. He also testified that he never said anything to constable Lawrence Talamaivao. The accused also denied that he said to senior sergeant Sui Pahetogia he would give him a large pig and $500 but to set him free. He also denied that he told constable Pereniseaila Ifo that the marijuana seeds belonged to him.

Under cross-examination, the accused said he does not smoke or deal with marijuana. He also said that he was not aware of anything in the keg brought by the police. Perhaps it was the old man, Eli, who was staying in his house who owned the marijuana seeds.

The witness Veataulia Nia, a matai of Faleula, was called by the defence. He testified that this old man Eli used to live at his village of Faleula from family to family for a number of years. He knows from his visits to the accused’s house that this old man was living at the lean-to of the accused’s house, but since this incident the old man has never been seen in his village again.

To prove the second element of the charge which is knowledge on the part of the accused of the marijuana seeds which were found in his house, the prosecution relies on the evidence of the discovery of the marijuana seeds in the accused’s house and the various admissions alleged to have been made by the accused to different members of the police search party. In Police v Euini Mariota (2003) (unreported judgment of this Court delivered on 13 March 2003) it was held that possession of marijuana substances will be prima facie evidence of knowledge of such substances which constitutes the mens rea element of the charge. But is is only prima facie evidence of knowledge which has to be considered together with any other relevant evidence which is adduced at the trial.

With regard to the various admissions alleged to have been made by the accused to different police officers, I will refer to the evidence of each of those police officers in turn. Senior sergeant Sui Pahetogia testified that the accused said to him in a low voice whilst the police were counting the marijuana seeds they had found in the accused’s house that he (the accused) would bring a large pig and $500 but to set him free. The accused denied having made such a statement to the senior sergeant. According to the accused, he told senior sergeant Sui Pahetogia that he did not know who owns the marijuana seeds and the bottle of homebrew. He also told the senior sergeant to bring in the old man who was staying at this house because on the night before the police search, he and his wife had gone to a family meeting for a funeral until late at night and only the old man stayed in the house. The senior sergeant then sent some of the police officers to bring in the old man. The evidence which was given by constable Pereniseaila Ifo is that the accused at one time during the interview with him said that the marijuana seeds belonged to the old man who was staying at this house. He therefore informed senior sergeant Sui Pahetogia and the senior sergeant sent some of the police officers to bring in the old man. I find it difficult to reconcile the evidence that was given by the senior sergeant and the evidence given by constable Pereniseaila Ifo as to what the accused told him that the marijuana seeds belonged, not to the accused, but to the old man. I would accept that the accused might have said to constable Pereniseaila Ifo that the seeds belonged to the old man and not to him otherwise it would not have been necessary for the police to go back to bring in the old man. If the accused had admitted knowledge or ownership of the marijuana seeds, it would not have been necessary for the police to go back all the way to the accused’s house at Faleula-uta to bring in the old man.

With regard to the evidence of constable Pereniseaila Ifo as to his interview of the accused, it must be said that I have found his evidence unsatisfactory. He said that during the interview of the accused for a cautioned statement, the latter admitted to him that he owned the marijuana seeds. However, there is nothing in the cautioned statement to show that the accused admitted to ownership of the marijuana seeds. I would have expected that if the accused had made such an admission, it would have been recorded in the cautioned statement because it is crucial evidence to prove the charge brought against the accused. Under cross-examination, this witness stated that the accused changed his story and related to him that the marijuana seeds belonged to the old man who was staying in his house. However, he did not put that down in the cautioned statement for, according to the witness, he would only type down what suited the charge and he did not believe the accused. But even then, this witness also said that when the old man was brought in, he did not obtain a statement from him because the old man is related to the accused. The evidence given by and for the accused clearly suggests that the accused is not related to the old man. The old man would have been a crucial witness for the prosecution to rebut any evidence to be given by the accused that the marijuana seeds do not belong to him but to the old man. On the other hand, if the old man had confirmed to the police that the marijuana seeds belonged to him, then the proper person to be charged should have been the old man and not the accused. The old man was not called as a witness by the prosecution and no reason was given by the prosecution for not doing so.

The evidence of constable Filipo Langkilde is that the accused said to him inside the police van that he knew he was being arrested because of the marijuana seeds. This evidence only came out during cross-examination but there is no mention of such a statement being made by the accused in the report that was prepared by this witness regarding this case. When questioned by counsel for the accused on this point, the witness replied that it was because he was only asked to report on the marijuana seeds that he counted. I would have thought that the police were usually, though not always, alert to the kind of evidence that might support a charge. Here the evidence in question is not in the report prepared by the witness and it did not come out during the examination in chief. Against this evidence is the denial by the accused that he never made the statement now attributed to him by constable Filipo Langkilde.

The next police witness is constable Lawrence Talamaivao, an experienced police officer. The admission which this witness said the accused made to him in the police van is not shown in the report he had prepared for this case. The alleged admission also did not come out during the examination in chief of this witness. It only came out during cross-examination. The accused also denied this evidence.

In considering the evidence which was adduced by the prosecution against the evidence which was given by the accused, I am not satisfied by the quality of the evidence which was adduced by the prosecution that the second element of the charge has been proved beyond reasonable doubt. The evidence called by the prosecution, as it was subjected to cross-examination, is not sufficiently cogent to prove the second element of the charge. There is, of course, no onus on the accused to prove he is innocent. It is for the prosecution to prove that the accused is guilty of the charge. I am not satisfied that has been done. The charge is therefore dismissed.

Before leaving this case, much was said by the accused that a member of the police search party had taken his two speakers and money. That is not a matter for this Court to decide in this case even though it is clear from the evidence of senior sergeant Sui Pahetogia that the police has the accused’s two speakers. To avoid the risk of any civil action, it is advisable for the police to give careful consideration to what the accused said in his evidence about his speakers. The senior sergeant, however, denied in his evidence that the police took any money from the accused’s house.

CHIEF JUSTICE

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