Police v Vai [2007] WSSC 82 (22 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND

MAILO BENJAMIN DAVID VAI,
male of Vaiala.
Defendant

Counsels: Ms L. Su’a & Mr A. Lesa for the prosecution
Mr TRS Toailoa for the defendant

Hearing: 16 Feb, 19 & 20 September 2007

Decision: 22 October 2007

DECISION OF NELSON J.

The defendant is charged that at Apia on 13th January 2006, he had in his possession an instrument, viz. a "glass pipe for the purpose of committing the offence under this Act, Narcotic Act" contrary to section 13(b) of that Act.

Section 13(b) and 13(a) which is also relevant of the Narcotics Act 1967 provides as follows:

"Every person commits an offence against this Act who:

(a) Uses or permits to be used any premises or vehicle for the purpose of the commission of an offence against this Act; or

(b) Has in his possession any needle, syringe, pipe or other utensil for any such purpose."

As noted by the learned Chief Justice in the Police v Chan Chui judgment dated 18 September 2007 at page 17, the "purpose" referred to in section 13(b) clearly refers to the words "for the purpose of the commission of an offence against this Act" contained in section 13(a).

To sustain the charge the prosecution therefore need to prove beyond reasonable doubt the following:

(a) the accused had in his possession a glass pipe;
(b) this possession occurred at Apia on 13 January 2006;
(c) the accuseds possession was for the purpose of committing not any offence, but an offence against the Narcotics Act 1967.

In respect of ingredients (a) and (b), the prosecution rely on the evidence of Constables Reupena Oloapu and Maugafa Leaupepe, officers who searched the accused at the Police Watch House, Central Police Headquarters, Apia in the early morning hours of Friday 13 January 2006. The evidence of Constable Oloapu is the accused was brought in by another police officer Constable Joseph Meafua sometime between 12 midnight and 1am and he was searched by Constable Maugafa. The search occurred in the Watch House room in front of him and he recorded what was discovered on the accuseds person in the Police Occurrence Book. The Watch House room is quite small and he was seated approximately 1-2 meters from where the search was taking place. Constable Maugafa searched the whole of the accuseds body and recovered from his pants a wallet containing $445.80, a bunch of keys, a diary and from the accuseds right front pocket, a glass pipe. Each object including the glass pipe was shown by the searching officer to the accused. The witness described the pipe recovered from the accuseds body and identified Exhibit "P-1" for the prosecution as the pipe recovered from the accused.

The evidence of Constable Maugafa who carried out the search is generally consistent with that of Constable Oloapu. He says the normal search procedure was employed viz. the accused was asked to place his hands on the wall and was searched from behind, then was asked to turn around and a frontal search was conducted. When searched from behind, a wallet was recovered from the rear pocket. When searched frontally, a glass pipe was recovered from the front right pocked of his pants. The pants was described in the evidence as cargo (i.e. knee length type) pants. The witness said he showed the pipe to the accused and the other constable was seated at a table recording the items recovered. The pipe was placed on the table and was subsequently taken together with the accused by Constable Meafua to the Criminal Investigation Division where the accused was interviewed by other police officers.

Both constables strongly denied the suggestion that the pipe was planted on the accused during the search or that the items recovered from the accused had been recovered earlier that evening by the police and brought to the Watch House room by Constable Meafua.

The prosecution also tendered into evidence a statement taken from the accused later that Friday 13 January 2006 by Sergeant Alefaio Feiteai. It is alleged that on page 5 of the statement, the accused confesses to possession of the glass pipe. I have looked closely at the statement in particular page 5 thereof and I agree with counsel for the accused, the admission as to ownership at the top of page 5 is an admission of ownership of a black wrist band which the accused says he was wearing when he was brought by the Police. Midway on page 5 the accused specifically denies any knowledge about the pipe and when questioned by the Interviewing Officer about the items recovered during the body search at the Watch House, the accuseds answer is equivocal . He was asked:

Q	Did you know or did you see the items that were found in your clothing by the police officers?
A	Yes, it was the diary, my wrist band and wallet, and the glass tube.

That does not necessarily amount to an admission of ownership or possession, custody or control of the glass pipe. His answer can also be construed as "yes, I did see those things". These answers do not satisfy me that the accused admitted in his cautioned statement to the Police to possession of the glass pipe.

But having seen and heard the police officers giving their testimony, I am satisfied beyond reasonable doubt their evidence is the truth of what occurred during the body search at the Watch House. I prefer their evidence to the accuseds denials in his testimony given that: the accused by his own admission had been drinking from 5.30pm happy hour until midnight that night, a duration of some 7 hours and as the accused himself observed when asked whether he was drunk "I think I was over the limit". There is also no conceivable reason from the evidence I have heard to suggest why the Police would want to deliberately frame the accused by planting the glass pipe on his person and then by coming to court and lying about how it was discovered. Furthermore the accuseds answers in cross examination raised inconsistencies in his testimony and his general demeanor left much to be desired.

I am satisfied the accused had actual physical possession of the pipe and there is no credible evidence to suggest that he did not know or was unaware of the fact that the pipe was in his pocket. To put it another way, there is no evidence other than his which I have rejected to displace the prima facie inference of the mental element required for possession of knowledge of the contents of his pockets and applying the sort of tests applied by this court in cases such as Chan Chui, Police v Mariota and Police v Siaosi, I have no difficulty in concluding the accused was knowingly in possession of the glass pipe.

Accordingly I am satisfied to the required standard the prosecution has proven the first two ingredients of the charge viz. the accused had possession of the glass pipe at Apia on the day alleged in the information. The third ingredient of the charge is however much more troublesome, viz. whether the accused had possession of the pipe for the purpose of committing an offence against the Narcotics legislation.

This aspect has been of concern from the beginning of this trial. The concern stems from the wording of s.13(b) of the legislation. The words are quite clear and again to quote from the judgment of the learned Chief Justice in Chan Chui (the judgment dated 25 September 2007) at page 3 where he dealt with a similar charge:

"In terms of s.13(b) of the Narcotics Act 1967 which is the charging provision, the prosecution nust prove beyond reasonable doubt not only that the accused was in possession of a pipe but such possession was for the purpose of the commission of an offence against the Act.."

That too is my reading of s.13(b). It must be proven that the accuseds purpose was to commit an offence against the Narcotics Act 1967. The question then arising is from the evidence, what is the accuseds purpose in this case alleged to be and is that purpose an offence against the Narcotics Act 1967?

In this regard, the evidence of the prosecution expert witness Detective Sergeant Ian McCambridge is of most relevance. Detective McCambridge is an experienced member of the New Zealand Police with over 30 years experience in drug enquiries, as more particularly outlined in his brief of evidence produced by consent of defence counsel as Exhibit "P-2" for the prosecution. He can be regarded as a well qualified expert in the use of methamphetamine or "meth" as it is more commonly known, "ice" being methamphetamine in a crystalline form because it has the appearance of ice and "p" being short for "pure" which is meth having a high degree of purity.

His evidence was that meth is usually sold in lots of one-tenth (or 0.1) of a gram packaged in small self-sealing plastic bags. Meth can be used in a number of ways depending on the purity of the drug but one common way is to smoke it using a glass pipe of the type produced as Exhibit "P-1" for the prosecution. That pipe of course was identified by Constable Oloapu as being the pipe recovered by Constable Maugafa’s body search of the accused and I am satisfied on this evidence the glass pipe found on the accused is a glass pipe capable of being used to smoke methamphetamine.

As to whether it was so used, I have considered the chain of custody evidence and the objection by defence counsel to the admissibility of the New Zealand ESR Report because there is a break in the chain of custody evidence caused by the prosecutions failure to call Constable Joseph Meafua who took custody of the pipe overnight from the searching officers and who gave the pipe to the interviewing officer Sergeant Feiteai the next day. I do not uphold defence counsels objection for the following reasons: Firstly, the ESR Report was introduced into evidence as Exhibit "P-3" for the prosecution by consent of defence counsel. He having taken this course of action, I do not believe the accused can now question the contents of that report and one of the passages of that report reads:

"The envelope contained, among other things, a sealed standard drugs envelope, marked in part ‘POLICE vs Mailo Benjamin David Vai’ and ‘EXHDS/2006-08’. This was accompanied by an "Exhibits for laboratory Examination" form from the Ministry of Police. The form was marked with the name on file for reference ‘POLICE vs Mailo Benjamin David Vai’ and also ‘EXH DS / 2006-08’. The standard drugs envelope was assigned the unique laboratory number DRG06828.I have analysed the contents of the envelope. Part of this work was carried out using technical assistance. Following is a description of the item and the results of my analysis

EXH DS/2006-08. A paper-wrapped glass pipe containing off-white residues. The residues contained methamphetamine.

Methamphetamine is listed in the Second Schedule of the Narcotics Act 1967 of Western Samoa.

This statement is true to the best of my knowledge and belief. It is made by me, knowing that it may be admitted as evidence in criminal proceedings and that I could be prosecuted for making a statement that is known by me to be false and intended by me to mislead.

(Signed by the relevant ESR analyst)"

This is evidence confirming that the glass pipe which the ESR analysed and found to contain methamphetamine residue is the glass pipe found on the acused and subsequently marked by Police officers in Samoa for the case of "Police v Mailo Benjamin David Vai" with the unique Samoa Police exhibit no. "Exh. DS/2006-08." When put together with the evidence of Sergeant Aati the Police Exhibits officer who received the pipe from the interviewing officer Sergeant Feiteai and who labelled it "Exhibit DS/2006-08 Police v Mailo Benjamin David Vai" before sending it to the ESR in New Zealand on the 22 March 2006, received on 29 March 2006 by ESR, Auckland (see Exhibit "P-3" for the prosecution), together with the evidence of Sergeant Feiteai who received the instrument from Constable Meafua the morning of Friday 13 January 2006 before interviewing the accused, and the evidence of Constable Oloapu whom handed over custody of the pipe following the Watch House search to Constable Meafua, I am satisfied beyond reasonable doubt from all this testimony as to the chain of custody evidence culminating in the pipe being identified in court by Constable Oloapu as the one recovered from the accused by Constable Maugafa’s search. I am satisfied the pipe was used to smoke methamphetamine as it contained according to the New Zealand ESR Report residues of methamphetamine, a prohibited narcortic by virtue of the Second Schedule of the Narcotics Act 1967. As pointed out by Sapolu CJ in the Chan Chui case, not very inconsistency in the prosecution case is fatal. Some inconsistencies may lead to that result (as for example in Police v Laki Nauer [2007] WSSC 39) and some may not (e.g. Police v Chan Chui). There is no doubt on the evidence before me the pipe found in the accuseds possession was used to smoke methamphetamine. Whether it was so used by the accused or some other person is not addressed by the evidence and indeed is not the issue in this case. Neither is the issue whether the accused was in possession of a narcotic substance. The possession charge originally brought against the accused was withdrawn and dismissed on the 18 September 2007 following a prosecution application to that effect. The charge remaining against the accused and requiring determination is a charge under s.13(b) of the Narcotics Act and for that charge to succeed, the final ingredient the prosecution must prove beyond reasonable doubt is the mental element of the charge viz. that the accuseds purpose was to commit an offence against the Narcotics Act and that is why he had possession of the pipe. That is the central matter requiring consideration.

I turn in this respect again to the evidence of Detective Sergeant McCambridge who said there are a number of methods commonly used for smoking meth. One of these is using a glass pipe such as that produced as Exhibit "P-1" for the prosecution. He went on to describe the methodology demonstrating it by reference to the pipe. The meth is dropped into the bowl of the pipe through the opening at the top. A heat scource e.g. a cigarette lighter is then applied to the bottom exterior part of the bowl, this causes the drug to vaporize enabling the vapours to be inhaled through the opening at the top. If the drug is not all vapourised any remnants can be reused again e.g. the next day, by reapplying the heat scource to the bottom of the bowl. This is a very efficient way to consume the drug because almost all of the drug vapours are trapped inside the pipe. Little is lost or dissipated and the vapours can easily be inhaled through the opening at the top. When asked in cross examination whether such pipes have any other industrial or commercial use, the Detective Sergeants answer was he did not know of any other use. Quite clearly the ordinary use Exhibit "P-1" for the prosecution has is consumption or smoking of methamphetamine or other similar narcotic substance. As there is no evidence suggesting the accused had possession of the pipe for some other purpose, it can safely be inferred that his purpose for having possession of the pipe was to use it for smoking meth, whether by him or some other person. The only question remaining then is whether that purpose falls within the ambit of s.13(b), i.e. is it a purpose falling within the description "possession for the purpose of commission of an offence against the Narcotics Act?".

I have carefully reviewed the offences that may be committed against the Narcotics legislation. These are unlawful cultivation of prohibited plants (s.6), possession or attempted possession of a narcotic subject to certain exceptions (s.7), importation or exportation of a narcotic, opium or any prohibited plant (s.10), using or permitting to be used premises or a vehicle for the purpose of committing an offence against the Act (s.13(a)), possession of a needle, syringe, pipe, or other utensil for the purpose of committing an offence against the Act (s.13(b)), smoking or otherwise using opium or being on premises being used for the smoking of opium (s.13(c)), dealing in or having possession of any narcotic (s.18(1)(a)), selling giving supplying or administering or offering to sell give supply a narcotic to any person (s.18(1)(b)), unlawful manufacture of a narcotic (s.18A), unlawful sale of controlled substances (s.18B), aiding and abetting an offence against the drug legislation of some other country (s.19), failing to comply with conditions of a licence to deal in narcotics issued under the Act (s..20), making of false statements (s.21), failing to answer questions (s.22) and obstruction of officers (s.28A).

I cannot see how the accuseds purpose in this case, viz. use of the pipe for the consumption of methamphetamine can be construed as being for the purpose of committing an offence such as those listed above against the Narcotics Act because use or consumption of methamphetamine, indeed use or consumption of any narcotic (except for opium - see s.13( c)) is surprisingly not an offence against the Narcotics Act 1967. Cf. the equivalent New Zealand provisions, section 7 of the Misuse of Drugs Act 1975 where it is specifically an offence to "consume smoke or otherwise use any controlled drug....." and s.13(1)(a) which makes it an offence to be in possession of "any pipe or other utensil (not being a needle or syringe - these are separately provided for by s.13(1)(aa)) for the purpose of the commission of an offence against this Act."

Cultivation, dealing in, having possession of and manufacturing are clearly offences under the Act and if the evidence showed the accused had possession of the pipe for the purpose of cultivating, dealing in or manufacturing methamphetamine, then it could be argued he had possession for the purposes of committing an offence against the Act. But the evidence does not show that. The irresistible conclusion from the evidence presented is possession was solely for the purpose of consumption/use of narcotics, and only consumption/use of opium is an offence against the Act.

I do not accept the prosecution argument that possession of the pipe was for the purpose of committing the offence of possession of narcotics because it is not necessary for the offence of possession of narcotics to be in possession of the glass pipe. It is illogical to suggest that possession per se of a container is necessary in order to have possession of its contents. Possession of the contents can occur without the container and possession of a narcotic is an offence in its own right. To say that the accused had possession of the pipe for the purpose of having possession of the pipes contents is in my view a mis-application of the section and in any event there is nothing in the evidence to suggest or support a conclusion or a reasonable inference that the pipe was in the accuseds possession for that purpose. His purpose was as different as it was clear, to use the pipe for the consumption of methamphetamine.

As noted by the NZ Court of Appeal in discussing s.7 of the Misuse of Drugs Act 1975 (NZ) in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275, 278. "In this legislation at least, possession and purpose are quite distinct matters. Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and an intention to exercise possession. The purpose for which the accused has the drug in his possession is not relevant to whether or not he is in possession of it. This follows from the very nature of possession as a legal concept".

The second ingredient of the charge viz, that the accuseds purpose was to commit an offence against the Act has not been made out, the charge must be dismissed.

JUSTICE NELSON