Police v Niue [2008] WSSC 109 (19 December 2008)

IN THE SUPEME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

ONOSAI UENI NIUE male of Vailele-uta.
Accused

Counsel: G Patu for prosecution
T K Enari for accused

Hearing: 4 December 2008

Judgment: 19 December 2008

JUDGMENT OF SAPOLU CJ

The Charges

[1] The accused Onosai Ueni Niue of Vailele-uta stood trial on six charges. These charges are:

(a) At Vailele-uta on the 25th day of June 2008, the accused knowingly had in his possession narcotics, namely, cannabis substances weighing at 18.1 grams of loose and consisting of marijuana leaves and seven small plastic packets containing dried marijuana leaves: ss.7 and 18(1) Narcotics Act 1967.

(b) At Vailele-uta on the 12th day of August 2008, the accused threatened to kill Rawana Solofa a female of Vailele-uta and Letogo: s.82 Crimes Ordinance 1961.

(c) At Vailele-uta on the 12th day of August 2008, the accused assaulted Rowana Solofa a female of Vailele-uta and Letogo: s.78 Crimes Ordinance 1961.

(d) At Vailele-uta between the 11th and the 13th day of August 2008, the accused knowingly had in his possession narcotics, namely, cannabis substances (twenty five (25) small plastic packets of dried marijuana leaves): ss.7 and 18 Narcotics Act 1967.

(e) At Vailele on the 13th day of August 2008, the accused cultivated prohibited plants, namely, four (4) small marijuana plants: s.6 Narcotics Act 1967.

(f) At Vailele on the 13th day of August 2008, the accused knowingly had in his possession narcotics, namely, cannabis substances (six (6) branches of marijuana plants): ss.7 and 18 Narcotic Act 1967.

[2] There are five additional unsworn charges which are a repetition of the charges relating to the incidents in August 2008. All these unsworn charges are dismissed. Under s.13 of the Criminal Procedure Act 1972, every information shall be substantiated on oath before the Registrar.

The evidence

[3] The evidence in this case may be divided into two parts. The first part relates to what happened in June 2008 and the second part relates to what happened in August 2008.

(a) The June incident

[4] Pursuant to information received by the police in June 2008, the police applied to the Court for a warrant to search the house of the accused at Vailele. The police at the time were aware of the first name of the accused as Onosai but not his surname. The police at the time were also aware of the name of the accused’s de facto wife Talosaga Solofa who is also known as Rowana Solofa.

[5] So the police in their application for a search warrant put in the name of the accused as Onosai Talosaga Solofa. Because of this, counsel for the accused challenged the legality of the search warrant as well as the admissibility of the evidence obtained by the police during their search of the accused’s house at Vailele-uta.

[6] From the evidence given by constable Fagaloia Pua’i and the accused during the voir dire that was held to determine the admissibility of the evidence obtained by the police during their search, it was clear that the person referred to as Onosai Talosaga Solofa in the application for a search warrant and in the search warrant that was issued, is the same person as the accused Onosai Ueni Niue.

[7] The reason why the police had put the name Onosai Talosaga Solofa in their application for a search warrant was because the police were not at the time aware of the surname of the accused but they were aware of the name of his de facto wife as Talosaga Solofa.

[8] I ruled at the end of the voir dire that the search warrant was valid and the evidence obtained by the police during their search of the accused’s house at Vailele-uta was admissible.

[9] As it appears from the evidence of constable Fagaloia Pua’i, at about 5pm in the afternoon of 25 June 2008, a police party armed with a search warrant and led by sergeant Amataga Potoae, went to the house of the accused at Vailele-uta. When the police arrived, constable Fagaloia observed the accused ran behind his house towards the back. However, other police officers were approaching the accused’s home from the back. So the accused returned towards his house.

[10] Sergeant Amataga and constable Fagaloia then approached the accused and asked him if his name is Onosai to which the accused replied yes. Sergeant Amataga then showed the accused the search warrant and explained the search warrant to him.

[11] Also present at that time was a person named Naseri. This person was subsequently jointly charged with the accused with possession of narcotics. He pleaded guilty to the charge and has already been sentenced.

[12] According to the testimony of constable Fagaloia, after the search warrant was shown and explained to the accused, the police then searched his home. The search began at the bedroom of the accused and his de facto wife, which is the only room in the house, but no narcotic was found there. The police then continued their search into the living area of the house where sergeant Herbert Aati found several bags including a dark blue bag hung on the wall.

[13] According to the testimony of sergeant Herbert Aati who was called as a witness by the prosecution, he placed all the bags which were hanging on the wall on the floor. He then put the police dog specially trained to detect narcotics onto the bags. The dog sat on one of the bags which is a clear sign that there is narcotic in that bag. Marijuana substances were found inside that bag. The police exhibits officer constable Efo Moalele then took that bag together with its contents.

[14] According to the testimony of constable Efo, after she picked up the bag at the accused’s house, she held on to it and brought it with her to the police station. At the police station, she was instructed by sergeant Amataga, the leader of the police search party, to give the bag to constable Fagaloia who was assigned to interview the accused.

[15] At the interview which followed, the accused denied the charge against him.

[16] Constable Efo further testified that after the interview, constable Fagaloia gave the bag back to her. Inside the bag were seven small packets containing leaves together with loose leaves wrapped in a newspaper. She then weighed the seven small packets and they weighed 16 grams. She also weighed the loose leaves and they weighed 11.8 grams.

[17] Constable Efo then placed the substances inside a large brown envelope which she labelled "Police v Onosai Ueni Niue male of Vailele-uta. Charge – possession of narcotics – exhibit number EXHDS/2008-72A, 7 small plastic packets, EXHDS/2008-72B – loose leaves of marijuana". She then sealed the large brown envelope with a tape and placed it in the police exhibits room where they were kept.

[18] On 18 September 2008, constable Efo took the large envelope from the exhibits room and prepared samples to be taken to the scientist, Faumuina Falaniko Amosa, at Alafua for testing and analysis to confirm whether the substances were narcotics. On the 19th of September 2008, constable Efo took the samples to the scientist. It is not clear from the evidence of the police constable whether she placed the samples in an envelope or envelopes and labelled those envelopes before she took the samples to the scientist.

[19] In the report dated 29th September 2008 by the scientist, he says that he received a sealed standard drugs envelope from police officer Efo Moalele. This standard drugs envelope was labelled "EXHDS/2008-72" and contained two white sealed envelopes labelled "EXHDS/2008-72(a)" which contained plant material which were mainly dry leaves, leaf pieces, two heads and ten seeds and another white envelope labelled "EXHDS/2008-72(b) which contained plant material which were mainly dry leaves, leaf pieces and floral envelops.

[20] The scientist’s report then states that the results of the analysis that was carried out show that the dry leaves, leaf pieces, two heads and ten seeds in the white envelope labelled "EXHDS/2008-72(a)" contained cannabis.

[21] The scientist’s report also states that the plant material mainly dry leaves, leaf pieces and floral envelops in the white envelope labelled "EXHDS/2008-72(b) also contained cannabis.

[22] When the Court asked the scientist whether what is said in his report that he received the sealed standard drugs envelope from constable Efo Moalele on the 29th of September 2008 is correct, the scientist confirmed that it is correct.

(b) The August incidents

[23] According to the testimony of the witness Rowana Solofa, who was the de facto wife of the accused but not anymore, the accused’s cousin named Tito arrived home at the accused’s house at Vailele-uta with a waist red bag. Tito then hung the red bag on the door of the room. This must be the bedroom of the accused and Rowana. This red bag belonged to the accused. According to Rowana’s evidence, the accused used this bag for selling marijuana. It is also clear from Rowana’s evidence that the accused is a dealer in marijuana.

[24] Rowana testified that she then went and hid the bag. It would appear that this must have happened on the 11th of August 2008.

[25] On the following morning, the 12th of August, the accused looked for the red bag (the marijuana bag) as he was going out again to ‘push’ (sell) his marijuana. He searched for the red bag but could not find it. Rowana had hidden the bag.

[26] Rowana further testified that the accused then came and placed a knife to her throat and said to her if his bag cannot be found the whole of the knife will end up inside her throat. Rowana said the accused also assaulted her by slapping her on the mouth.

[27] The accused then went to town (alu i tai) and when he returned the same morning, he assaulted Rowana again. The accused then had a meal and afterwards looked for the bag again.

[28] In the afternoon, the accused went to the rugby park. At that time, Rowana took the red bag she was hiding to constable Fagaloia who also resides at Vailele. Rowana told constable Fagaloia that the bag contained narcotics.

[29] Constable Fagaloia said in his evidence that the witness Rowana came to him with a red bag on the evening of the 12th of August 2008 and told him that the bag contained narcotics. He then kept the bag in the room inside his house and the following morning, the 13th of August when he came to work, he brought the bag with him to the Apia police station. Constable Fagaloia was instructed by his superior to hold on to the bag as the police will be sending a team of officers to carry out an emergency raid of the house of the accused.

[30] Soon thereafter, a police party was on their way to the house of the accused to search for narcotics. The police found four small plants suspected to be marijuana plants growing near the house of the accused. The accused was present at the time. The plants were uprooted and brought to the police station together with the accused.

[31] Constable Fagaloia was then instructed to give the red bag to corporal Kenneth Komiti who was assigned to interview the accused.

[32] Sergeant Kenneth testified that the red waist bag contained three cigarette packets of the Pall Mall brand. Inside one of the packets were ten "pepa pulu marijuana"; inside another packet were nine "pepa pulu marijuana"; and in the third packet were six "pepa pulu marijuana"; So there were a total of 25 packets of "pulu marijuana".

[33] Sergeant Kenneth further testified that he also had with him four small marijuana plants each about two inches high and six marijuana branches.

[34] After the brief interview where the accused denied the charges against him, sergeant Kenneth gave the substances to constable Efo.

[35] Constable Efo confirmed in her evidence that sergeant Kenneth gave the said substances to her. She then placed the 25 packets, the four small marijuana plants and the marijuana branches inside a white envelope, sealed the envelope, and put it inside the exhibits room.

[36] The white envelope was labelled "Police v Onosai Ueni Niue male of Vailele-uta. EXHDS/2008-72A 25 small plastic packets; EXHDS2008/B-4 small marijuana plants; EXHDS/2008-95C-20 branches of marijuana".

[37] On 19 November 2008, constable Efo then prepared samples from the substances in the said white envelope and took them to the scientist at Alafua for testing and analysis.

[38] In the report dated 20th November 2008 by the scientist, he confirms that, he received a standard drugs envelope from constable Efo Moalele on the 19th of November 2008. This standard drugs envelope was labelled "EXHDS/2008-95". It contained three white sealed envelopes labelled "EXHDS/2008-95(a) – (marijuana leaves)" containing plant material mainly leaves and leaf pieces; "EXHDS/2008-94(b) – (small marijuana plants)" containing plant material and two small seedlings; and "EXDS/2008-95(c) – (marijuana branches without leaves)" containing plant material mainly pieces of small branches.

[39] The results of the tests and analysis carried out by the scientist showed the marijuana leaves in the envelope labelled "EXHDS/2008-95(a) – (marijuana leaves)" were cannabis plant of the genus cannabis sativa L; the tests in respect of the plant material contained in the envelope labelled "EXHDS/2008-95(b) – (small marijuana plants)" were inconclusive; and pieces of small branches contained in the envelope labelled "EXHDS/2008-95(c) – (marijuana branches without leaves)" were cannabis plant of the genus cannabis sativa L.

[40] The accused elected not to give or call evidence at the trial.

Discussion

[41] In relation to charge (a), namely, that on the 25th day of June 2008 the accused knowingly had in his possession loose marijuana leaves and seven plastic bags of dried marijuana leaves, constable Efo was quite definite in her evidence that on the 19th of September 2008, she took the samples which she had prepared from the alleged marijuana substances found by the police inside a dark blue bag in the house of the accused. However, the scientist, on the other hand, was also quite definite in his evidence that the plant material on which he prepared his report dated 29th September 2008 was received by him from constable Efo on the same date, namely, 29th September 2008. I am left in a reasonable doubt whether the samples taken by constable Efo to the scientist on 19th September are the same as the plant material upon which the scientist prepared his report. The scientist testified that the plant material upon which he prepared his report dated 29th September 2008 was received by him on the same date.

[42] The label which constable Efo gave to the seven plastic bags of dried marijuana leaves was EXHDS/2008-72A and the label she gave to the loose leaves of marijuana was EXHDS/2008-72B before she placed those substances in the exhibits room. It is not clear from her evidence whether any change was made to those labels when she prepared the samples which she took to the scientist for tests and analysis. This is important because the scientist in his evidence said that the material given to him was in a standard drugs envelope labelled "EXHDS/2008-72". That standard drugs envelope contained two white sealed envelopes labelled "EXHDS/2008-72(a)" and "EXHDS/2008-72(b)". It is clear that the labels given by constable Efo to the seven plastic bags of dried marijuana leaves and to the loose leaves of marijuana do not precisely match the labels on the two white envelopes mentioned by the scientist.

[43] It is also to be noted that the scientist says in his report that the material contained in the white envelope labelled "EXHDS/2008-72(a)" included 10 seeds. However, there is no mention of any seeds in the evidence adduced by the other prosecution witnesses in respect of the charge relating to the alleged marijuana substances found inside a dark blue bag in the accused’s house on the 25th of June 2008.

[44] For these reasons taken together, I am in doubt whether the substances which were scientifically tested and analysed and upon which the scientist prepared his report of the 29th of September 2009 were from the same substances found by the police in the accused’s house on the 25th of June 2008. It is for the prosecution to prove beyond reasonable doubt that the substances found by the police in the accused’s house and with which he has been charged were the same substances as those tested and analysed by the scientist and found to be cannabis plant which is a narcotic. I am not satisfied the prosecution has done that.

[45] Charge (a) is therefore dismissed.

[46] In respect of charge (b), namely, that on the 12th day of August 2008 the accused threatened to kill Rowana Solofa, I am satisfied from the evidence of Rowana Solofa that the accused placed a knife to her throat and told her if his bag cannot be found the whole of the knife would end up inside her throat that the accused threatened to kill her.

[47] I, therefore, find charge (b) to have been proved beyond reasonable doubt.

[48] In respect of charge (c), namely, that on the 12th day of August 2008 the accused assaulted Rowana Solofa, I am also satisfied from the evidence of Rowana Solofa that this charge has been proved beyond reasonable doubt.

[49] In relation to charge (d), namely, that between the 11th and the 13th day of August 2008 the accused knowingly had in his possession 25 small plastic packets of dried marijuana leaves, it is clear from the evidence of the witnesses Rowana Solofa and constable Fagaloia that these 25 plastic packets of marijuana leaves were inside the red waist bag which belonged to the accused and was given by Rowana to constable Fagaloia at Vailele on the 12th of August 2008. The red bag together with the 25 plastic packets was kept by constable Fagaloia in a room inside his house and on the following morning, the 13th of August, he took the bag with him to the Apia police station. Later on the same day he gave the bag and its contents to sergeant Kenneth who interviewed the accused. After the brief interview where the accused denied the charges against him, sergeant Kenneth gave the bag to constable Efo who labelled the substances and placed them in a sealed envelope which she put in the police exhibits room.

[50] Samples were then prepared from the 25 plastic packets by constable Efo and she took them to the scientist on the 19th of November 2008. The scientist in his report dated the 20th of November 2008 confirmed that he received a standard drugs envelope from constable Efo on the 19th of November 2008. The results of the tests and analysis carried out by the scientist showed that the samples were cannabis plant of the genus cannabis sativa L.

[51] In spite of the out of Court denial made by the accused to sergeant Kenneth, I am satisfied on the evidence adduced by the prosecution that this charge has been proved beyond reasonable doubt.

[52] In respect of charge (e), namely, cultivation of four prohibited plants, the evidence given by the scientist in his oral testimony and in his report clearly show that the results of the tests carried out on the samples taken from the four plants were inconclusive. So there is no proof beyond reasonable doubt that the plants alleged to have been cultivated by the accused were prohibited plants. This charge is also dismissed.

[53] As for charge (f), namely, that on the 13th of August 2008 the accused knowingly had in his possession six branches of marijuana plants, the evidence of constable Fagaloia is quite clear that the only substances the police brought from the accused’s premises during the raid on the 13th of August 2008 were four small plants suspected to be marijuana plants. There was no mention of any marijuana branches.

[54] According to the testimony given by constable Efo, sergeant Kenneth gave her a red waist bag, four small plants each about two inches high, and twenty marijuana branches without leaves. Constable Efo also testified that inside the red waist bag were these cigarette packets of the Pall Mall brand. In one packet there were 6 small packets of dried marijuana leaves, in another packet were 9 small packets of dried marijuana leaves, and in the third packet were 10 small packets of dried marijuana leaves making a total of 25 small packets of dried marijuana leaves. Again there was no mention of any branches of marijuana being inside the red waist bag.

[55] It is not clear where the 6 marijuana branches came from. They were not in the red waist bag which belonged to the accused and was hidden and given by the witness Rowana Solofa to constable Fagaloia on the 12th of August. From the evidence of constable Fagaloia, the only material the police brought with them from their raid of the accused’s premises on the 13th of August 2008 were four small plants. So where did the marijuana branches come from? There is no evidence connecting the marijuana branches to the accused. In other words this charge has not been proved beyond reasonable doubt.

[56] Charge (f) is therefore dismissed.

Conclusions

[57] Charges (a), (e) and (f) are dismissed. Charges (b), (c) and (d) have been proved.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Enari & Stenvenson