Police v Talita [2005] WSSC 2 (23 February 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

MOTU TALITA
of Matautu-uta
Accused

Counsel: A Amoa and K Koria for prosecution
T Malifa for accused

Hearing: 22 February 2005
Judgment: 23 February 2005

JUDGMENT OF SAPOLU CJ

The accused, a 16 year old male, is individually charged with one count of possession of narcotics. He is also jointly charged with a co-accused with one count of possession of narcotics and one count of giving narcotics. Thus there are three counts with which the accused has been charged.

Before the close of its case during trial, the prosecution made an application to withdraw the joint charges insofar as they relate to the co-accused but will continue to proceed against the accused on those charges. The application was granted and the joint charges insofar as they relate to the co-accused were dismissed.

Under the count by which the accused is individually charged, it is charged that the accused at Vaisigano on the 28^th day of January 2004 knowingly had in his possession narcotics, namely, cannabis substances (one joint of marijuana): ss.7 and 18(2)(A) of the Narcotics Act 1967. Under the first of the joint counts, the accused is charged that at Matautu-tai on the 27^th day of January 2004 he knowingly had in his possession narcotics, namely, cannabis substances (eighteen packets of dried marijuana leaves and seeds): ss.7 and 18(2)(A) of the Narcotics Act 1967. Under the second joint count, the accused is charged that at Matautu-uta on the 27^th day of January 2004 he gave narcotics, namely, cannabis substances to one Iafeta Schuster, a male of Matautu-uta, (eighteen packets of dried marijuana leaves and seeds): s.18(1),(2)(B) of the Narcotics Act 1967.

On Tuesday morning, the 28^th of January 2004, a team of four police officers which constituted of corporal Tupou Ainuu, constables Francis Lesa, Lotu Tulaga and Tapeni Taeu, went in a two door Suzuki vehicle to Matautu-uta to look for the accused and the co-accused in connection with marijuana. The police officers found the accused and the co-accused at Matautu-uta and because the Suzuki vehicle could fit only four people, corporal Tupou Ainuu and constable Francis Lesa who was driving brought the accused and the co-accused back to the Apia police station in the vehicle while constables Lotu Tulaga and Tapeni Taeu walked back to the station.

When the accused and the co-accused were brought in the vehicle to the police station, the accused sat on the back seat directly behind the driver’s seat while the co-accused sat on the same back seat behind the front passenger’s seat corporal Tupou Ainuu was sitting. When the accused and the co-accused were dropped off with corporal Tupou Ainuu at the police station, the vehicle with constable Francis Lesa still driving, went back to pick up constables Lotu Tulaga and Tapeni Taeu. When the vehicle picked up the two constables, constable Lotu Tulaga who got into the back seat behind the driver’s seat, noticed a cigarette thought to be a joint of marijuana, lying on the floor of the vehicle directly behind the driver’s seat. The evidence given by the police shows that before they left the police station to look for the accused and his co-accused, there was no cigarette lying on the floor behind the driver’s seat.

When the vehicle arrived back to the police station, the accused who was sitting behind the driver’s seat when he was brought to the police station, was brought and shown the cigarette lying on the floor where constable Lotu Tulaga found it. There is then a conflict in the evidence given by the police officers themselves. In his evidence in chief, constable Lotu Tulaga said when the accused was brought to the vehicle and shown the cigarette on the floor behind the driver’s seat, constable Tapeni Taeu asked the accused whether the cigarette belonged to him. The accused replied it was not his cigarette. When constable Tapeni Taeu gave evidence, he said that when he asked the accused, whose cigarette was that, the accused replied it was his. Constable Francis Lesa in his evidence said when the accused was shown the cigarette, he said that was the cigarette which was inside his pocket and had thrown it on the floor of the vehicle.

There is also another conflict in the evidence of the police officers. Under cross-examination, constable Lotu Tulaga said that the police did not search the accused or the co-accused at Matautu-uta. Under further cross-examination, this police officer said that he did not know if any marijuana was in the accused’s possession. He also said that no marijuana was found in the accused’s possession from the time he was brought from Matautu-uta to the police station. Constable Tapeni Taeu, under cross-examination, said that the accused was searched at Matautu-uta and no marijuana was found on the accused except the cigarette found on the floor of the vehicle.

In his evidence in chief, what constable Tapeni Taeu said is substantially the same as the evidence in chief of constable Lotu Tulaga. The only material difference, already referred to, is that constable Lotu Tulaga said when they arrived at the police station and the accused was shown the cigarette in the vehicle, constable Tapeni Taeu asked the accused whether the cigarette belonged to him and the accused replied it did not. As earlier mentioned, when constable Tapeni Taeu gave evidence, he said in his evidence in chief that when the accused was shown the cigarette on the floor of the vehicle and he asked the accused about it, the accused said it was his.

After the accused was shown the cigarette, he was questioned by constable Francis Lesa who also said in evidence that when he showed the accused the cigarette and the eighteen packets of leaves inside the office, the accused said they belonged to him and he had given the eighteen packets to one Iafeta Schuster. According to the evidence of the police, this person Iafeta Schuster has left the country so that it was not possible for the prosecution to call him as a witness.

The last witness called by the prosecution was constable Herbert Aati, a member of the police drugs squad. This witness testified that the joint and the eighteen packets were given to him by corporal Tupou Ainuu, who did not give evidence. He said that he kept those substances in safe custody in the police station and he also prepared samples from the joint and eighteen packets of leaves by taking a part of the joint and a leaf out of each packet and then sent them to the Institute of Environmental Science and Research Ltd in New Zealand (ESR) for scientific tests on 20 February 2004 after he had received the appropriate licence. A report from the ESR was produced by consent as an exhibit for the prosecution. That report was received by the Samoan police on 26 March 2004.

Counsel for the accused cross-examined constable Herbert Aati who produced the ESR report at some length on the report. The police officer said that he had prepared two samples by taking part of the joint and a leaf from each of the eighteen packets of leaves. These samples were then put in two separate packages which were labelled “(a)” and “(b)”. The sample from the eighteen packets of leaves were put in package (a) and the sample from the joint was put in package (b). Both samples were then put in a special envelope used by the police for sending similar substances to the ESR in New Zealand. That envelope was labelled “EXH DS/2004 – 22(a) & (b)” and the names of the accused and the co-accused were put on it. That envelope was then placed in a large envelope and the address of the ESR in New Zealand and the name of the customs officer who clears the mail were put on it.

The ESR report says that on 26 February 2004, one sealed envelope was received by international registered post and sealed inter alia “RR 075 024 345 NZ” and “RR 143791.” This envelope contained one standard drugs envelope labelled with the names of the accused and co-accused and “EXH DS/2004 – 22(a)(b).” The one standard drugs envelope was accompanied by an “Exhibits for Laboratory Examination” form from the Samoan police also showing the names of the accused and co-accused. This form was further labelled “EXH DS/2004 – 22(a).”

In his evidence, constable Herbert Aati said that the references “RR 075 024 345 NZ” and “RR 143791” in the ESR report were ESR references. He was not in a position to say what those references mean or how they came to be on the sealed envelope even though what is said in the ESR report suggests that when the ESR received the sealed envelope in New Zealand those references were already on the envelope. Constable Herbert Aati was clear in his evidence that he did not put those references on the sealed envelope. He also did not mention in his evidence that the standard drugs envelope was accompanied by an “Exhibits for Laboratory Examination” form which was further labelled ‘EXH ds/2004 – 22(a).” It was also not mentioned why the “Exhibits for Laboratory Examination” form was only labelled “EXH DS/2004 – 22(a)” without mention of “(b).”

The ESR report also mentions that the standard drugs envelope contained plant material which consisted mostly of leaves. That plant material according to the scientist, the author of the report, was analysed and found to be cannabis plant of the genus Cannabis sativa L.

The accused elected to give evidence. He said in his evidence in chief that when he was brought with his co-accused to the Apia police station, his co-accused was assaulted by a police officer who was not one of the police officers who gave evidence in this case. This is a serious accusation which in fairness should have been put to the police officers who gave evidence whether they knew anything about it. Anyway, the accused said he became scared. When he was shown the cigarette inside the vehicle which brought him to the police station, he told the police it did not belong to him. He was then taken inside the office where he was questioned by constable Francis Lesa. He was questioned whether the cigarette and the eighteen packets of marijuana belonged to him. He denied it saying no. However, because he was scared of the assault that had been inflicted on his co-accused by another the police officer who was also present, he finally admitted, when he was asked the second time by constable Francis Lesa, that the cigarette and the eighteen packets belonged to him. The accused further said that he did not actually know where the eighteen packets came from and that they did not belong to him.

Under cross-examination, the accused testified that he was searched by the police at Matautu-uta before he entered the police vehicle which brought him and his co-accused to the police station. He also said that when he was asked the first time by constable Francis Lesa, he denied that the cigarette and the eighteen packets belonged to him. It was only the second time when constable Francis Lesa asked him that he replied those substances belonged to him as he was scared. He denied that he told the police officer that he gave the eighteen packets to one Iafeta Schuster.

Dealing first with the charge of possession in relation to the cigarette (joint of marijuana), the evidence for the prosecution is that the accused admitted to constable Francis Lesa that the cigarette belonged to him. The other evidence upon which the prosecution relies is that of constables Francis Lesa and Tapeni Taeu who said when the accused was shown the cigarette inside the vehicle which brought him and his co-accused to the police station, he admitted the cigarette belonged to him. The evidence which was given by constable Lotu Tulaga is that when constable Tapeni Taeu asked the accused about the cigarette inside the vehicle as it was shown to him, the accused denied it belonged to him. In his evidence, the accused said that even though he told constable Francis Lesa that the cigarette belonged to him, it did not really belong to him. There is also a conflict in the evidence whether the accused was searched at Matautu-uta before he was brought with his co-accused to the police station. If he was searched and no cigarette was found on him, then it is possible the cigarette which was later found in the vehicle which brought him and the co-accused to the police station did not belong to the accused.

In effect then, the material evidence is what the accused said when he was questioned by constable Francis Lesa that the cigarette belonged to him and the oral testimony given by the accused to the Court that even though he told constable Francis Lesa that the cigarette belonged to him, it did not in fact belong to him. Both these statements came from the accused himself. In my view it is not safe to enter a conviction on such conflicting statements from the accused himself. The conflicting evidence given by the police officers as to what the accused had said when he was shown the cigarette that was inside the vehicle also leaves one in doubt as to what the accused might have said. The accused denied that he told the police officers that the cigarette belonged to him. The evidence is also conflicting as to whether the accused was searched at Matautu-uta before he was brought in the vehicle to the police station.

The other difficulty with this aspect of the case is that there was no convincing evidence whether the cigarette contained “plant material.” Constable Herbert Aati testified that he took samples from the cigarette and the eighteen packets of leaves and placed them in two packages. The package in which he placed the samples from the packets of leaves was (a) and the sample from the cigarette was placed in package (b). The two packages were then placed in a special envelope which was then placed in a large envelope with the address of the ESR before it was sent to the ESR in New Zealand.

According to the ESR report,the sealed envelope was received by registered post and was labelled “RR 075 024 345 NZ” and “RR 143791.” The standard drugs envelope which was inside the sealed envelope was labelled “EXH DS/2004 – 22(a)(b)” but the “Exhibits for Laboratory Examination” form which accompanied the standard drugs envelope was labelled “EXH DS/2004 – 22(a).” The question which arises is whether package “(b)” in which constable Herbert Aati had placed the sample from the cigarette was actually sent to the ESR because the label on the standard drugs envelope and the label on the “Exhibits for Laboratory Examination” form were not identical.

Furthermore, the ESR report says that the standard drugs envelope contained plant material mostly leaves. It is not clear what else was contained in that envelope or whether the two packages labelled “(a)” and “(b)” were both inside the envelope given that the labels on the envelope and the “Exhibits for Laboratory Examination” were not the same. It is for the prosecution to prove beyond reasonable doubt that the sample which was taken from the cigarette alleged to belong to the accused was actually sent to the ESR in New Zealand, analysed, examined scientifically,and was found to contain narcotic. The identity of the substance with which the accused has been charged, needless to say, has to be proved to be a narcotic.

In relation to the charges of possession of narcotics and the giving of narcotics relating to the eighteen packets of leaves alleged to be marijuana leaves, the only evidence the prosecution was able to adduce was the evidence of constable Francis Lesa who said that when he showed the eighteen packets of marijuana leaves to the accused the latter replied they belonged to him and he gave them to one Iafeta Schuster. The accused said in evidence that when constable Francis Lesa asked him the first time he denied the eighteen packets belonged to him. But he was scared, and when constable Francis Lesa asked him the second time, he replied the eighteen packets belonged to him. The accused also said that the eighteen packets of leaves did not actually belong to him and he did not know where they came from. This person Iafeta Schuster was not called as a witness by the prosecution as the police said he has left the country.

Essentially then, the only evidence before the Court on this matter are two conflicting statements made by the accused himself, one made to constable Francis Lesa and the one given in his oral testimony to the Court. Given this state of the evidence, I am of the view it would be unsafe to enter a conviction. Both statements cannot be true or false. One of them must be true and the other false. I am not sufficiently confident to the required standard which one is which. There is a doubt which must be resolved in favour of the accused.

For the foregoing reasons, all three charges against the accused are dismissed.

CHIEF JUSTICE

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