Police v Masame [2007] WSSC 83 (30 October 2007)

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Hearing: 10 July 2007, 21, 24, 25 September 2007
Submissions: 2, 10 October 2007
Judgment: 30 October 2007

The accused Tagaloa Runi Masame, 29 year old male of Tualele and Sapapalii is charged under the provisions of the Narcotics Act 1967 with: (a) one count of possession of narcotics, namely, marijuana substances pursuant to s.7 of the Act, and (b) one count of possession of a pipe for the purpose of the commission of an offence against the Act pursuant to s.13 (a) of the Act. To both counts the accused pleaded not guilty so that the case proceeded to trial.

On Friday night 13 January 2006 senior sergeant Paipai Paipai (senior sergeant Paipai) who was in charge of the police night duty at the CID received a phone call from a police informer between 10pm and 11pm that marijuana will be delivered to the houses of two families at Vaitele-uta and Tulaele and will be distributed out in the early morning of Saturday, 14 January 2006. The house at Tulaele was that of the accused. Senior Sergeant Paipai then contacted by phone chief inspector Matau Matafeo (chief inspector Matau) the in charge of the CID at the time about the phone call from a police informer. Chief Inspector Matau then instructed senior sergeant Paipai to contact those police officers, presumably members of the police drug squad, with phones at home and to request the police emergency unit for their vehicle to assist in picking up the police officers from the their homes.

As it appears from the evidence of senior sergeant Penitito Leifi (senior sergeant Penitito) there were about twenty or more police officers who were involved in the searches subsequently carried out of the two houses at Vaitele-uta and Tulaele. So there were quite a number of police officers to be contacted by phone and picked up by a police vehicle as senior sergeant Paipai was instructed by chief inspector Matau. One of the last police officers to be picked up must have been constable Iosefo Pati (constable Iosefo) who testified that he was picked up from his home by a police vehicle at about 5am on Saturday morning.

There are conflicts in the evidence given by the prosecution witnesses as to whether a briefing was given to the police search team before they left the Apia police station. Senior Sergeant Penitito testified that a briefing was held by chief inspector Matau before the police team embarked on their search mission. Constable Lotu Tulaga (constable Lotu) testified that there was no briefing. Chief Inspector Matau testified that there was no briefing; he simply told the members of the search team about the information that had been received from a police informer and the houses to be searched and the police then got ready to leave. Apparently, the house of the accused at Tualele was known to some police officers as the accused had previously been charged with another offence and there is also evidence from some of the prosecution witnesses as well as the accused that there had been two previous police searches of the accused’s house. It is not clear what those previous searches were for. Senior Sergeant Paipai testified that there was a briefing of the police search team before they left to search the two houses at Vaitele-uta and Tulaele but the briefing consisted only of chief inspector Matau telling the officers of where the houses to be searched are situated. After consideration of these testimonies, I have decided to accept that no formal briefing was conducted. Chief Inspector Matau simply told his search team of the information received by the police and the two houses to be searched and the police then left the Apia police station.

As it appears from the evidence, the police search team left the Apia police station in police vehicles at about 6am on Saturday morning and headed first to Vaitele-uta. After the house at Vaitele-uta was searched, the police came to Tulaele to the house of the accused. That was after 7am in the morning.

Before carrying on with the actions taken by the police, it is necessary to refer to what the accused was doing on Friday night 13 January 2006 and early Saturday morning 14 January 2006.

On Friday afternoon before the accused left his house in a taxi at about 4pm, he locked his house and took the key with him. The only other person with a key to the accused’s house was his girlfriend who lives with him. The accused did not lock the gate to his house as he had three workers still making bricks for him on his premises. So the accused left the gate open for his workers to come out when they finished their work. His workers were to close and lock the gate when they come out.

When the accused left his house in a taxi, his plan was to spend the night at the nightclubs in Apia. But as he enjoyed listening to the music of the taxi on his way to Apia, he told the taxi driver to go for a ride while he was drinking his bottles of beer and listening to the taxi’s music,. According to the accused, the name of the taxi driver is Peter and is a friend of his. The accused and Peter drove around in the taxi until after 10pm when the accused told Peter to drive up to Tuanaimato, not very far from the accused’s house. They stopped there while the accused was still drinking. When the beers were finished, the accused and his friend Peter drove back to Apia to buy some more beers. After buying more beers they drove around Apia with the accused still drinking. After 2am in the morning, the accused told Peter to drive him home as he was feeling tired. On the way, they stopped at Fugalei and picked up another friend of the accused named Alatini who is also a taxi driver. When Alatini was picked up, he was already drunk. The accused testified that he still had some bottles of beer left at that time.

The accused then said that when the three of them Peter, Alatini and himself arrived at his house they went to the underground room where more beers were consumed. Alatini soon conked out as he was already drunk. He and Peter continued drinking and playing music on his computer. He was also writing songs until he fell asleep. It would appear from the accused’s evidences that in his advanced stage of intoxication he was still able to write songs. The accused did not wake up until he was woken up by the police.

When the police arrived at the accused’s premises after 7am in the morning, the iron- gate to the accused’s house was locked with a padlock. The police then tooted the horns of their vehicles and called out the name of the accused. There was no reply.

The house of the accused is a European house made of bricks. It is surrounded with a concrete fence. On top of the concrete fence are iron posts. When the police received no reply to their calls of the accused’s name and the tootting of their vehicles horns, chief inspector Matau instructed the young members of the police team to climb over the fence which they managed to do.

When those police officers who managed to climb over the fence reached the accused’s house, it was all locked up. The doors at the front and at the back as well as all the windows were locked up. The police knocked on the doors and windows and called out the name of the accused to open the house but there was no reply. The police put their faces on the windows to see whether there was anyone inside the house as all the windows are tinted, but they did not see anyone. After 20 minutes, the police team were about to leave the accused’s house when some of the police officers noticed a woman moving inside the house. So they knocked on the doors again. When there was still no reply, one of the police officers then tried to open one of the windows at the back of the house. When he succeeded in opening that window he entered the house through that window and opened the front door which enabled some of the police officers to enter the accused’s house while other officers were surrounding the house acting as security for those officers who had gone in to search the house.

The accused testified that the window and door at the back of his house were broken and much of his house was roughed up by the police. Later in his evidence the accused said that the back window was broken. This was strongly denied by the police witnesses who entered the accused’s house. It is also clear from the evidence that the police did not search the whole of the accused’s house but only the underground room. In my view, the evidence of the police that they did not break the back window or door of the accused’s house is to be preferred to that of the accused.

When the police entered the accused’s house, they went down the steps which constable Lotu, the first police officer to enter the accused’s house, pointed out was where the woman the police had seen inside the house had gone to. The steps led the police to the underground room of the accused’s house which was dark. In that room, the police found the accused sleeping on a rocking chair and a woman sleeping on a bed. This woman, as later mentioned by the accused in his evidence, is his girlfriend who lives with him. The police then woke up the accused, showed him their ID and informed him that they were police officers coming to search his house for marijuana. The accused was then asked to turn on the light of his underground room which he did. The police then searched the room. From the evidence given by the police, it would appear that only four officers were involved in the search of the underground room.

There is then a conflict between the evidence given by the police officers and the evidence given by the accused. According to the accused, he was taken up to the sitting room of his house whilst the police were searching his underground room and was only brought back to his underground room when the police discovered the marijuana substances wrapped in a bed sheet. The police officers were cross-examined at some length by defence counsel on this point but they all maintained that the accused was inside the underground room at all times whilst the police were searching that room. As a matter of credibility, I have decided to believe the evidence given by the police officers.

Inside the underground room which the accused testified he used for writing his music were a rocking chair, a bed, a computer, a laptop, speakers and bottles of beer. Senior Sergeant Penitito who searched the bed found five branches of marijuana and leaves wrapped in a bed sheet and placed under the mattress. The accused testified that this is the bed that he sleeps or rests on sometimes. So it is the accused’s bed. Those marijuana substances were shown by senior sergeant Penitito to the accused who showed no reaction. After the search of the underground room, senior sergeant Penitito found a half joint of marijuana on the side of the steps as the police were walking back up the steps to the sitting room. This half joint was burnt on one end which suggests that it had been smoked by someone.

During the police search of the underground room of the accused’s house, sergeant Samuelu Afamasaga (sergeant Samuelu) also found a pipe on a table at a corner at the back of the room. Lying on that table were speakers. Both sergeant Alefaio Feateai (sergeant Alefaio) and constable Lotu who were part of the police team searching the accused’s underground room testified that they observed sergeant Samuelu found the pipe. Constable Lotu described the pipe to be like a tube with a hole on one side. It is shiny (iila) like a plastic. He also said that sergeant Samuelu then showed the pipe to the accused who simply stood and said nothing. The pipe was then given to sergeant Herbert Aati (sergeant Herbert) who was the police exhibits officer during the search.

Segeant Samuelu who found the pipe was not called by the prosecution as he is presently on an overseas peacekeeping mission by the United Nations. However, that does not result in a breach in the chain of custody of the pipe as suggested in the written submissions for the accused. Sergeant Alefaio and constable Lotu were called by the prosecution and they testified that they were present and saw sergeant Samuelu found the pipe which was then shown to the accused. Sergeant Herbert, the police exhibits officer, was also called by the prosecution and he testified that during the search of the accused’s house sergeant Samuelu handed a glass pipe to him. That glass pipe was later sent to the ESR in New Zealand for scientific examination and later returned to the Samoan police in Apia. The glass pipe was produced by the prosecution as an exhibit at the trial and it was confirmed by sergeant Alefaio and constable Lotu during their evidence as the same pipe they observed sergeant Samuelu found in the accused’s underground room. Sergeant Herbert in his evidence also confirmed the glass pipe as the same pipe that sergeant Samuelu handed to him.

Apart from the glass pipe and the marijuana substances wrapped in a bed sheet, the police also found 48 marijuana seeds inside the accused’s house. These marijuana seeds were found on the steps that go down to the accused’s underground room by sergeant Herbert who has had extensive experience in narcotics because of his previous involvement in 4,000 to 5,000 police narcotic cases.

All the substances that the police found in the accused’s house were brought to the Apia police station together with the accused. After those substances were shown to the accused during the interview which followed, they were given back to sergeant Herbert who labelled and then locked them in the police exhibits room. On 22 March 2006, sergeant Herbert removed the substances from the exhibits room, put them in an ESR envelope and sent them to the ESR in New Zealand for scientific analysis and examination.

The substances sent to the ESR were scientifically analysed by two ESR scientists. In the reports by the scientist who analysed the leafy plant material and the 48 seeds, she says that the leafy plant material was cannabis plant of the genus cannabis sativa L whereas the 48 seeds were cannabis seeds of the same genus. The scientist who examined the glass pipe says in his report that the pipe contained traces of methamphetamine.

Detective sergeant Francis McCambridge of the New Zealand Police who has been involved in a large number of drug enquiries was also called as a witness by the prosecution. In his written statement he says that "pure" methamphetamine is generally smoked and there are a number of methods commonly used for smoking methamphetamine. One of those methods is the use of a glass pipe. The methamphetamine is placed inside the pipe and a heat source is placed underneath the pipe beneath the methamphetamine causing it to vaporise. The vapour is then inhaled.

Before I refer to the evidence regarding the interview of the accused by sergeant Alefaio, I should mention that the accused had previously challenged the admissibility of the cautioned statement on the common law ground of voluntariness and on the constitutional ground that the cautioned statement was obtained by the police in breach of the accused’s right to counsel. A voir dire was held to determine the accused’s challenge. The prosecution called as a witness sergeant Alefaio who interviewed the accused and obtained a cautioned statement from him. The accused did not give or call evidence to support his challenge. In my written ruling of 21 August 2007, the cautioned statement was held to be admissible. I found the statement to have been given voluntarily and that even though there was a breach of the right to counsel the breach was inconsequential so that there was a special reason making it fair and right to admit it. My reasons for that conclusion appear in my written ruling.

What happened at the trial which followed is that the accused when he gave evidence testified that he did not want to make a statement to the police. He rejected that he had told sergeant Alefaio, the police interviewing officer, that he had stopped using ‘ice’ for about one month and two weeks before the police searched his house. He also did not want to sign the cautioned statement but sergeant Alefaio said to him to sign and that is why he signed. In effect, the accused was again challenging the admissibility of his cautioned statement on the ground of voluntariness even though he had previously made the same challenge and in the voir dire that was held he did not give or call evidence and the Court has already made a ruling that the cautioned statement was voluntary and therefore admissible on that basis.

In a Judge alone trial, if the accused challenges the admissibility of a cautioned statement on any ground, a voir dire will be held to determine the question of admissibility and the prosecution will call evidence to rebut the challenge otherwise the cautioned statement will be held inadmissible. It is normal practice for the accused to give evidence during the voir dire to support his challenge. It is not right for the accused to wait until he elects to give evidence later, at the trial and then give evidence for the first time to support his challenge which has already been determined during the voir dire. I had decided to grant an indulgence to the accused in this case and allowed him to give evidence that his cautioned statement was not voluntary and that one part of his statement is not correct. But it must be made clear that this is not to be treated as a precedent to be followed in any future case.

When the police arrived back at the station from the accused’s house, sergeant Herbert handed the marijuana substances and glass pipe found in the accused’s house to sergeant Alefaio who was to interview the accused. The marijuana substances were placed on the table where the interview was to be conducted. The interview started at 12:15pm.

In his evidence under cross-examination, the accused confirmed every part of his cautioned statement put to him by Ms Chang for the prosecution except for one answer recorded in the statement. When further asked by Ms Chang whether everything else in the cautioned statement is correct except for that one part, the accused said yes. The accused also said that that one answer is not correctly recorded but the question which related to that answer is.

There are seventeen questions and seventeen answers recorded in the cautioned statement which consists of six handwritten pages. In terms of the accused’s evidence all seventeen questions are correctly recorded but only sixteen of the answers are. The question and the answer denied by the accused are as follows:

Q.	Do you understand Runi about these items found in your home; can you explain?
A.	I do understand they are marijuana found wrapped in a bed sheet which were found in my room, and the tube used to smoke marijuana and ‘ice’, but it is about one month and two weeks since I stopped using ‘ice’

In the question and answer which immediately precede the question and answer I have quoted, the accused says that he confirms that the marijuana wrapped in a bed sheet, the glass tube, the half marijuana cigarette and the 48 seeds of marijuana shown to him were found by the police in his house. Thus, it would appear that the answer which the accused says he denies is not the whole of that answer but only part of it. That is the part where it says "it is about one month and two weeks since he stopped using ice". In fact in his evidence the accused did not deny the whole answer that he now disputes. He only repeatedly said that he did not tell sergeant Alefaio that "it is about one month and two weeks since he stopped using ‘ice’". On the other hand, sergeant Alefaio had testified during the voir dire that the accused did say everything to him which appears in the accused’s answers recorded in the statement which would of course include the incriminating part that the accused is now denying.

I must say that I find it highly implausible that sergeant Alefaio correctly recorded everything that was said during his interview of the accused except for that short part of the statement which the accused testified that he never said to the police sergeant. I do not believe the accused’s evidence. I find the evidence given by sergeant Alefaio during the voir dire to be more reliable and credible.

On the question of voluntariness, the accused testified that when he told sergeant Alefaio after he was cautioned that he did not want to make a "full statement" what he meant was that he did not want to make any statement at all. However, there is no evidence that he conveyed that meaning to sergeant Alefaio who testified that he understood the accused to mean by his answer to the caution that he would make a statement but not a full statement. Judging by the questions from the police sergeant which later followed and the answers willingly given to them by the accused, the assertion by the accused that what he meant was that he did not want to make any statement at all is not borne out. The questions and answers which followed seem to bear out the police sergeant’s understanding of what the accused meant. One would also have thought that if what the accused actually meant was what he said in his evidence, then he should at least have told sergeant Alefaio at the beginning of his questions that what he meant by his answer that he did not to make a "full statement" was no statement at all. The accused could also have simply said that he did not want to make a statement or wish to answer any questions. After all he had been cautioned that he was not obliged to say anything. There is also evidence that the accused is not someone who is not unfamiliar with the police. Sergeant Alefaio also testified that he and the accused are related.

The accused also said that when he was informed of his right to counsel and he replied that he wanted to contact counsel, that should have conveyed to sergeant Alefaio that he did not want to make a statement. As it appears from the cautioned statement what the police sergeant said to the accused was that you have a right to contact counsel and to request counsel to be present at the interview. The accused replied that he wanted to contact counsel. The police tried to contact a second counsel on the phone when there was no reply from the first. However there was also no reply from the second counsel. The accused then said to leave it until another time. In those circumstances, I find it difficult to conclude that the police sergeant should have understood the accused’s wish to contact counsel to mean that the accused did not want to make a statement. It obviously meant that the accused wanted to contact counsel, but it is not clear that it meant the accused did not want to make a statement.

Given the detailed explanation by sergeant Alefaio of the accused’s right not to say anything unless he wished to do so which appears in p.2 of the handwritten statement and the answer given by the accused to that explanation as well as the questions and answers which shortly followed, I am still of the view that the accused was willing to make a statement. I do not think I would therefore need to consider s.18 of the Evidence Ordinance 1961 which may apply where the prosecution has not shown that a confessional statement was not voluntary but the means by which such statement was obtained were not in fact likely to cause an untrue admission of guilt.

During cross-examination by defence counsel of senior sergeant Penitito, I made a ruling that evidence could not be given which would disclose the identity of the police informer who tipped off the police about marijuana being distributed at a house at Vaitele-uta and the accused’s house at Tulaele. Counsel quite properly accepted that ruling. The relevant common law principles may be found in the judgment of Richardson J in R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129, 146; (1986) 2 CRNZ18, 35 where His Honour said:

" Where the informer, whether a layman or a police officer, does not give evidence the well settled rule of law grounded in public policy is that no one else giving evidence will be required to reveal the identity of the informer unless the disclosure could help to show that the accused was innocent of the offence. For a contemporary statement of the rule and its rationale it is sufficient to refer to a passage in the speech of Lord Diplock in D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 218:

‘" The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a Court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should [not] be withheld from that tribunal. By the uniform practice of the Judges which by the time of Marks v Beyfus [1890] UKLawRpKQB 125; (1980) 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.’"

"Both the rule itself and qualification applying to criminal trials were recognised in this Court in Tipene v Apperley [1978] 1 NZLR 761 and recent decisions to the same effect in other comparable jurisdictions include Bisaillon v Keable (1983) 7 CCC (3d) 385: Signorotto v Nicholson [1982] VicRp 40; [1982] VR 413: and Smith v Illinois (1968) 390 US 129".

In the subsequent decision of the New Zealand Court of Appeal in R v McNicol (1994) 12 CRNZ 668, Williamson J in delivering the judgment of the Court said at p670:

" There was no argument and indeed it was expressly accepted that the Crown was entitled to withhold information which would lead to the identity of the informant. Since 1794 the principle of confidentiality of sources of police information has been recognised (see R v Hardy (1794) 24 State Tr 199, 808, 816). A modern affirmation of this is contained in the judgment of Richardson J in R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129, 146: [1986] NZCA 56; (1986) 2 CRNZ 18, 35...."

Williamson J then referred to the passage I have cited above from the judgment of Richardson J in R v Hughes.

It is desirable as a matter of procedure that if the legality of a police search and the admissibility of evidence obtained from such search is to be challenged, such challenge should be made before the main trial. The issues of the legality of the search and the admissibility of the evidence obtained by such search would then be determined on the basis of a voir dire. If the search is found to be illegal and the evidence is inadmissible, then that may be the end of proceedings where the main or only evidence upon which the prosecution relies for its case is evidence obtained from the illegal search. It will not be necessary to proceed to the main trial which means savings in costs and time. If on the other hand the search is found to be legal or illegal and the evidence is admissible, those issues would have been sorted out before the main trial. They would not get mixed up with other issues that may be raised at the main trial resulting in possible confusion. Furthermore, if the evidence obtained from a search is determined to be admissible at the pre-trial voir dire, that may lead to an early change of plea from not guilty to guilty and so bring proceedings to an early conclusion again saving costs and time.

The police search in this case was carried out without a search warrant. It was a warrantless search. The police relied on the provisions of s.14A (1) of the Narcotics Act 1967 which provides:

"(1) Where under the circumstances that an immediate search is to be carried out and there is no time to apply for a search warrant as provided under section 14 of this Act, any constable, if he has reasonable ground to believe that there is in or on any building, aircraft, ship, carriage, vehicle, premises or place any narcotic for which an offence against this Act has been committed, he, with any assistants he may require, may enter and search the building, aircraft, ship, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 83 of the Criminal Procedure Act 1972 and by subsection (1) of section 14 of this Act.

From the evidence given by chief inspector Matau who made the decision for the police to carry out an immediate search of the house at Vaitele-uta and the house of the accused at Tulaele and the evidence of senior sergeant Paipai, the police were informed by an informer between 10pm and 11pm on Friday night 13 January 2006 that marijuana will be delivered to the said two houses the same night and will be distributed out early the following morning which was Saturday. On that information, it is clear that the police had to act quickly before the marijuana was distributed out. Given the lateness of the hour when the police were informed and the information that the marijuana will be distributed out early the following morning which was a Saturday, there was no time to seek a search warrant.

However, another pre-condition to the exercise of the power to search without a warrant given to the police under s.14A(1) of the Act is that the police must have had reasonable grounds to believe that there is in a building narcotics for which an offence against the Act has been committed. The question then is whether the police had reasonable grounds to believe that there were narcotics in the house of the accused. This is to be determined objectively. The onus of proving that there were reasonable grounds for the belief held by the police is on the prosecution.

The evidence upon which the prosecution say provided reasonable grounds for the belief by the police that marijuana would be at the house of the accused is the information given to the police by an informer. It is tip-off information. Counsel for the prosecution submitted that was a sufficient basis for the police to have reasonable grounds for their belief. Counsel for the accused on the other hand disagreed. In my view, the information given to the police was not from just any member of the public. It was from a police informer. The police must have trusted the correctness of the information given to them by their informer. I think the police given the nature of their work are entitled to rely on information from their police informers and sometimes undercover police officers provided such information provides reasonable grounds for belief. I am of the view that the police had reasonable grounds that marijuana would be at the house of the accused at the relevant time before they embarked on their search operation of the house at Vaitele-uta and the accused’s house at Tulaele. The warrantless search of the accused’s house was thus lawful.

Evidence given by the accused was that his house was under police surveillance for some time before it was searched by the police. This was strongly denied by some of the police officers who gave evidence. They testified that the accused’s house was not under police surveillance before the search took place. It would seem that what the accused was getting at is that the police from the alleged surveillance of his house must have had sufficient time to apply for a search warrant instead of relying on s.14A (1) of the Act which only applies in a situation which calls for an immediate search without a warrant to be carried out. It follows that the search being without a warrant it was unlawful as s.14A (1) does not apply. I have carefully considered the relevant evidence and have decided to accept the evidence by the police officers that the police did not carry out any surveillance of the accused’s house before they launched their search.

However, if the search by the police was for some reason unlawful, that would not automatically lead to the exclusion of evidence obtained from such a search.

As I am of the view that the police warrantless search of the accused’s house was lawful being authorised under s.14A (1) of the Act, evidence of the marijuana substances and glass pipe obtained by that search are admissible. But in case I am wrong in that view, I will now refer to the law applicable to the admissibility of evidence obtained by an illegal search for which there are a number of relevant New Zealand authorities, I need not, however, refer to all of them.

In R v Taylor (1996) 14 CRNZ 426, which was a case on drugs, in a joint judgment of Richardson P, Gault, Henry, Keith, Neazor JJ, it is stated at p.432.

" The settled principle of the common law of New Zealand is that evidence obtained by illegal searches is admissible subject only to a discretion based on jurisdiction to prevent an abuse of process, to rule it out in a particular circumstances on the ground of unfairness to the accused. This ground of challenging admissibility is not affected by the availability of a challenge under s.21’

Section 21 referred to in the above passage is s.21 of the New Zealand Bill of Rights which relates to the right to be secure against unreasonable search or seizure and not illegal or unlawful search. We do not have a provision similar to s.21 in the Fundamental Rights provisions of our Constitution. So New Zealand cases on s.21 would have to be read with that in mind.

In R v Laugalis (1983) 10 CRNZ 350, which was also case on drugs, Hardie Boys J in delivering the judgment of the New Zealand Court of Appeal in that case said at p.357:

" The Bill of Rights apart, the principle is that ‘evidence obtained by illegal searches and the like is admissible subject only to a discretion, based on the jurisdiction to prevent an abuse of process, to rule it out in a particular instances on the ground of unfairness to the accused’: R v Coombs [1985] 1 NZLR 318, 321; (1984) 1 CRNZ 406, 409."

" [Where] the evidence is challenged not under the Bill of Rights but under the common law, its admissibility is to be determined in accordance with the common law principle explained in R v Coombs"

As already mentioned, Samoa does not have a provision like s.21 of the New Zealand Bill of Rights which provides for the right against unreasonable search or seizure. But even if we had such a provision, on the evidence given by the police officers in this case which I accept, I do not think the search was unreasonable. The police when they arrived at the accused’s house called out the accused to come and open the gate. They also tooted the horns of their vehicles. When there was no reply, some of the police officers climbed over the concrete and iron fence surrounding the accused’s premises. When they got to the accused’s house its front and rear doors and all the windows were locked. The police then knocked on the doors and windows and called out the name of the accused. That went on for 20 minutes. But there was no reply. As the police were about to give up and leave, some of the officers saw a woman moving inside the house. So they knocked on the doors again. When there was still no reply, one of the constables was able to open one of the rear windows and got through it into the house. He then opened the front door for the other officers to come in. That police officer then showed the others the steps where he had seen the woman gone down. The police went down those steps and found the accused sleeping on a rocking chair and a woman lying on a bed. The accused was then asked to turn on the light of his room as it was dark. The police then searched the room. That was the only room of the accused’s house which the police searched. On that evidence there is nothing unreasonable about the search. It was only after the police observed that there was a person inside the house and there was no reply to their further knocks on the doors that one of the police officers opened a back window and went in. The words used by constable Lotu were "Na tago vane le faamalama ae oso i totonu". There was no other way in as no one would open the accused’s house to the police.

The accused’s said his back window and door were broken and his house was roughed up. He later said only the back window and door were broken. This was denied by the police officers who said nothing was broken. I have seen and observed the police officers and the accused giving their evidence. I must say that the evidence of the police officers is to be preferred even though there must have been slight damage to the back window because of what a police officer did in order to open the window and get access into the house. There was nothing unreasonable about the search. So even if we had a provision like s.21 of the New Zealand Bill of Rights, I find the search in this case not to be unreasonable.

The accused in his evidence denied having any knowledge of the marijuana substances or glass pipe found in his underground room which he uses for writing music. He also denied any knowledge of the half marijuana joint and the 48 marijuana seeds found on the steps of his underground room. The question then is how could those marijuana substances have entered the accused’s house and some of them and the glass pipe end up in the accused’s underground room and more particularly under the mattress of the accused’s bed and on a table at the corner of his room.

The accused gave evidence that when he left his house on Friday afternoon, 13 January 2006, at 4pm he locked his house and took the key with him. The only people who were on his premises at the time he left were his three workers making bricks outside of the house. There is no evidence to suggest that any of the accused’s workers entered or might have entered the house which was locked. The only other person with a key to the accused’s house was his girlfriend. But the accused’s evidence about his girlfriend was to the effect that his girlfriend could not have brought the marijuana substances and the glass pipe into his house because she is young and does not know anything about marijuana.

In respect of his friends Peter and Alatini who were with the accused in his underground room in the early hours of Saturday morning, 14 January 2005 after 2:30am, the accused said that Peter who drove him around that night does not smoke; only Alatini smokes Rothmans cigarettes. The accused’s evidence was also to the effect that he did not observe any of his friends being in possession of marijuana that night. Alatini soon conked out after they arrived in the underground room as he was already drunk leaving only the accused and Peter drinking before the accused wrote some music and then fell asleep. The accused said when the police woke him up; Peter and Alatini were no longer in the underground room.

When the accused was asked whether he had enquired of Peter and Alatini after he was charged by the police, if it was any of them who brought into the house or underground room the marijuana substances with which he has been charged, he said no because all his friends have avoided him since this matter. There is also no mention by the accused in his statement given to sergeant Alefaio that it might have been his friend Peter or Alatini who could have brought the marijuana into his house or his underground room. Even after the accused was avoided by his friends which must include Peter and Alatini he has not complained to the police that it could have been Peter or Alatini who brought the marijuana into his house.

The accused also said that because of the charges against him he and his wife became separated. However, on the day the police came and searched the accused’s house his wife was not there in the house but only his girlfriend. The accused had also said that when he left his house on Friday afternoon, 13 January 2006, to spend the night at the nightclubs the only other person with a key to his house was his girlfriend, no mention of his wife having a key. It makes one wonder whether it was really the charges against the accused that had caused him and his wife to separate. It would appear that the accused’s wife was already no longer living with him in his house before the accused was even searched for marijuana or charged by the police.

I would have to say that I disbelieve the evidence the accused gave to the Court. What the accused told sergeant Alefaio during the interview that he had stopped using ‘ice’ for about one month and two weeks is a more believable representation of the true situation.

On the basis of credible evidence adduced by the prosecution, the proper inference to draw from the presence of the marijuana substances and the glass pipe in the underground room and steps of the accused’s house is that not only was the accused in physical custody of those matters but he was also aware of their existence inside his house and intended to exercise possession of them: R v Cox [1990] NZCA 13; [1990] 2 NZLR 275; Police v Patrick Nicky Chan Chui (2007) WSSC 72; Police v Nofoasa Leuluaialii [2006] WSSC 50. As I do not accept the evidence given by the accused, it does not rebut the inference I have drawn: see Police v Patrick Nicky Chan Chui [2007] WSSC 72: and the relevant cases discussed therein.

It has been submitted for the accused that for the charge of possession of a pipe brought under s.13 (b) of the Act, the prosecution must establish that the possession of the pipe was for the purpose of smoking methamphetamine which is another term for ‘ice’. However there is no offence specified in the Act for smoking methamphetamine. The only offence of smoking referred to in the Act is for smoking opium under s.13 (b).

The way the prosecution has framed its charge under s.13 (b) of the Act is to allege that the accused was in possession of a glass pipe for the purpose of committing an offence against the Act. In so doing the prosecution have closely followed the wondering of s.13 (b). However, I take the point made by counsel for the accused that the wording of the information is not specific enough to show which offence against the Act was to be committed by the accused being in possession of the glass pipe. I think this could have been cleared up before or during the trick by seeking more specificity in the wording of the charge.

Be that as it may, the report from the ESR scientist who examined the pipe states that it contained traces of methamphetamine. This is another term for ‘ice’. Mr McCambridge a detective sergeant employed by the New Zealand Police stated in his report produced as an exhibit for the prosecution that "pure" methamphetamine is generally smoked and one of the methods used for smoking methamphetamine is the use of a glass pipe. The accused had also told sergeant Alefaio that he had ceased using ‘ice’ for about one month and two weeks before his house was searched by the police.

So there is evidence adduced by the prosecution to show that the accused must have had possession of the glass pipe for the purpose of smoking methamphetamine or ‘ice’. It is true that there is no offence of smoking methamphetamine or ‘ice’ spelled out in the Act. But there is an offence of possession of narcotics under s.7 of the Act and methamphetamine is a narcotic in terms of the Act. One cannot smoke methamphetamine using a glass pipe without being in possession of that narcotic at the same time. So the real offence against the Act is not smoking methamphetamine for there is no such offence provided in the Act, but possession of a narcotic, namely, methamphetamine or ‘ice’. I accept that possession of a pipe alone does not constitute an offence under s.13 (b). Such possession must be for the purpose of committing an offence against the Act. In this case that offence against the Act would be possession of a narcotic.

From the foregoing discussion, I conclude that the accused was in physical custody of the half joint of marijuana, the 48 marijuana seeds, and the marijuana branches and leaves wrapped in a bed sheet which were found in his house. The accused was also aware of the existence of those substances and intended to possess them. I therefore find the charge of possession of narcotics preferred under ss.7 and 18 (2) of the Act to have been proved by the prosecution beyond reasonable doubt.

I also conclude that the charge of possession of a pipe for the purpose of committing an offence against the Act preferred under s.13 (b) of the Act has been proved by the prosecution beyond reasonable doubt.

This matter is adjourned to Monday, 19 November 2007 for a probation report and sentencing.

Solicitors
Attorney-General’s Office, Apia for prosecution
Toa Law for accused

Supreme Court of Samoa

Police v Masame [2007] WSSC 83 (30 October 2007)