Police v Leuluaialii [2006] WSSC 50 (18 September 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND

NOFOASA LEULUAIALII
of Vaitele-uta and Sala’ilua
Defendant

Counsels: Mr A Lesa for prosecution
Mr Ainuu for defence

Hearing: 8th August 2006
Judgment: 18th September 2006

JUDGMENT OF VAAI J

The accused Nofoasa Leuluaialii of Vaitele-uta and Salailua Savaii a 25 year old taxi driver is jointly charged with Fagamanu Tavita, also a taxi driver, with possession of narcotics pursuant to sections 7 and 18 (2) (a) of the Narcotics Act 1967. The accused pleaded not guilty, whilst his co-accused entered a guilty plea. At the commencement of the trial, the admissibility of the caution statement was challenged; a voir dire hearing which followed ruled against the challenge and the statement held admissible. As a result of a conference in chambers requested by counsels immediately after the voir dire ruling, an agreed statement of facts was prepared and signed by counsels and again by consent the hearing was adjourned to the 18th August for written submissions. Counsel for the accused did not appear on the 18th August and neither did he file submissions by 9:30am. Those submissions were received by me on Monday morning 21st August and I instructed the Deputy Registrar to have this matter listed for Wednesday 23rd August and to inform both counsels.

Agreed Statement of Facts:

1. The defendant Fagamanu Tavita is a 21 year old male of Tulaele, he is currently employed as a taxi driver.
   
2. The defendant Nofoasa Leuluaialii, is a 25 year old male of Vaitele-uta, he is also currently employed as a taxi driver.
   
3. On the late afternoon of Tuesday 4 October 2005, both defendants were travelling in Fagamanu’s taxi license number T1421, towards the Airport at Faleolo.
   
4. Police on duty at the time had stopped the vehicle close to the boundary between the villages of Leauvaa and Tuanai, for speeding.
   
5. Upon approaching the vehicle the Police officer noted what he suspected to be the smell of marijuana to be coming from inside the vehicle. Also upon inspection police suspected both defendants of being under the influence of marijuana.
   
6. Police then informed the defendants of the police right to search the defendants and the vehicle under the suspicion that they were in possession of narcotics. The search was then carried out.
   
7. In the process of the search the police found a quantity of 31 marijuana seeds and some loose leaves of marijuana wrapped in a newspaper and located under the driver’s seat of the vehicle.
8. Both defendants were then escorted by police to the Apia station where they were cautioned and interviewed by police.
   
9. Upon being interviewed, the defendant Fagamanu Tavita, admitted to buying the marijuana from someone he did not know at Siusega. He then proceeded to the home of Nofoasa Leuluaialii, where they both shared a joint.
   
10. At approximately 2.30pm the defendants proceeded to the Airport at Faleolo in Fagamanu’s taxi. Fagamanu was driving and Nofoasa was seated in the passenger seat. Whilst they were driving, and approximately when they reached Vaitele, the defendant Fagamanu handed the newspaper containing the marijuana to Nofoasa.
    
11. Nofoasa then rolled one marijuana joint from the contents of the newspaper and handed the newspaper back to Fagamanu. Fagamanu then placed the newspaper containing the marijuana under his seat, in plain sight of Nofoasa. The defendants then began to smoke the rolled marijuana joint.
    
12. Both defendants also admitted to the vehicle travelling very fast when they were stopped by Police.
    

Counsels Submissions

Section 7 of the Narcotics Act 1967 provides:

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

Counsel for the defendant argued that when the narcotics were found by the police underneath the driver’s seat the accused as passenger did not have actual possession or constructive possession of the narcotic. He referred to two United States Court of Appeal of the 9th Circuit cases of Murray v U.S. [1969] USCA9 93; 403 F 2d, 694 (1968) and U.S. v Oropeza 564 F. 2d316 1977 as authorities for the proposition that constructive possession requires both knowledge of the presence of the drug and having the power to exercise control and dominion over it. It is contended by the defence that since the narcotics were placed underneath the driver’s seat after the accused rolled the joint, the narcotics were under the control and dominion of the driver only and the accused had no control over it so that it could not be said that he had the power to dispose of it although he had knowledge of it. In the circumstances the defence argued that the accused was not in actual or constructive possession of the narcotics.

If indeed the two United States authorities cited do expound the concept of possession as submitted by counsel then they do bear resemblance and come within the peripheral of the meaning of possession widely accepted within our own jurisdiction. Possession involves two elements which the police must prove. The first is actual or potential physical custody or control; and the second is a combination of knowledge and intention; knowledge in the sense of an awareness by the accused that the substance is in his possession; and an intention to exercise possession. Lord Morris of Borth-y-Gest expressly stated it in R v Warner (1969) 2 AC 256 at 289:

"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."

See also R v Cox [1990] NZCA 13; (1990) 2 NZLR 275; He Kaw The v The Queen [1985] HCA 43; (1985) 157 CLR 523; Police v Mariota ([2003] WSSC 6 Supreme Court of Samoa 13/3/03 unreported)

Before going for a drive towards the airport the accused and the driver shared a joint and not long after they commenced their journey the accused rolled another joint from the package given to him by the driver. The package was placed under the driver’s seat and both of them shared the joint. There is clearly no logic in the argument by the defence that as the narcotic was found under the driver’s seat the accused had no control over it. Both the accused and the driver had knowledge of the drug and both had an intention to exercise possession before they commenced their journey until they were stopped and caught by the police.

Accordingly I find the accused was knowingly in possession of narcotics, namely cannabis substances and the charge against him is proved beyond reasonable doubt.

VAAI J