Police v Esera [2008] WSSC 43 (23 June 2008)

IN THE SUPEME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SEMISI LAFI ESERA
male of Vaitele-uta.
Accused

Counsel: P Chang for prosecution
M V Peteru for accused

Judgment: 23 June 2008

JUDGMENT OF SAPOLU CJ

The charges

[1] The accused, who is a male of Vaitele-uta, stood trial on five charges under the provisions of the Narcotics Act 1967. These charges are:

(a) that at Vaitele-uta on the 6th day of February 2006, the accused was found in possession of an unlawful weapon, namely, a 25 semi automatic pistol, contrary to s.12 of the Arms Ordinance 1960;

(b) that at Vaitele-uta on the 6th day of February 2006, the accused knowingly had in his possession narcotics, namely, cannabis substances consisting of five seeds of the marijuana plant and one envelope containing marijuana leaves contrary to s.7 of the Narcotics Act 1967;

(c) that at Vaitele-uta on the 6th day of February 2006, the accused had in his possession utensils, namely, ten plastic bags (of specified sizes) and two straws for the purpose of the commission of an offence against the Act, namely, possession of narcotics, contrary to s.13 of the Narcotics Act 1967;

(d) that at Vaitele-uta on the 6th day of February 2006, the accused knowingly had in his possession narcotics, namely, cannabis substances consisting of nineteen seeds of the marijuana plant, contrary to s.7 of the Narcotics Act 1967; and

(e) that at Vaitele-uta on the 6th day of February 2006, the accused knowingly had in his possession narcotics, namely, cannabis substances consisting of sixty six seeds of the marijuana plant, contrary to s.7 of the Narcotics Act 1967.

The evidence

[2] In the early morning of 6 February 2006 at about 6am, a team of about ten police officers led by assistant commissioner Tiatia Motootua, went with a search warrant to Vaitele-uta to search the house of the accused. When the police arrived, a van with several people who appeared to be children of the accused was reversing from the accused’s compound towards the road. The police stopped the van and directed that it be driven back to the accused’s house which is a two storey building.

[3] When the police arrived at the front door of the accused’s house, they knocked on the door and asked a woman who was inside the house and later identified as the accused’s wife to open the door. When the door was not opened, the police used force to open the door.

[4] When the police entered the accused’s house, assistance commissioner Tiatia Motootua asked the person who was in the sitting room whether he was Semisi Lafi (the accused). He replied yes. He was also asked whether that was his residence. He also replied yes. He was then given the search warrant which authorised the police to search his house for narcotics.

[5] At the commencement of the search, all members of the accused’s family who were inside the house were ordered by the police to remain in the sitting room on the ground floor. The police then proceeded to search the house for narcotics. It was a one room at a time search.

[6] The first-room that was searched was the bedroom on the ground floor which the accused and his wife told the police was their bedroom. Inside this bedroom, constable Fetu Taalili found a parcel which looked like a Christmas present on an open shelf. When the parcel was opened it contained a pistol. Assistant commissioner Tiatia Motootua testified that when he showed the pistol to the accused and asked him about it, the accused replied it is his pistol but not working. Sergeant Latu Latu, who was the exhibits officer during the search as well as the investigating officer in this case, testified that when the pistol was found inside the bedroom of the accused and his wife and shown to the accused, the accused said it is his pistol but it is not working. The pistol was then given to sergeant Latu Latu as the exhibits officer during the search.

[7] Subsequently after the police search team had returned to the Apia police station, sergeant Latu Latu handed the pistol to corporal Kapeli Faalogo who is a member of the police special response unit which deals with firearms and armed offenders. Corporal Kapeli Faalogo testified that when he checked the pistol, he found it to be a 22 pistol. He said such a pistol cannot be registered as it is not permitted in Samoa. He also said he checked the register and this pistol was not registered. Senior sergeant Lutz Keil who is also attached to the police special response unit testified that he has examined this pistol and it is a 22 calibre automatic. In view of this evidence, the information charging the accused with possession of an unlawful weapon is amended by omitting the words "25 semi" and substituting the words "22 calibre".

[8] After the pistol was found by constable Fetu Taalili on an open shelf, constable Feagai Matatia another member of the police search team found an envelope containing dried marijuana leaves inside the second drawer of a cabinet beside the double bed inside the bedroom of the accused and his wife. About the same time, constable Fetu Taalili found five marijuana seeds scattered on the bedsheet of that double bed.

[9] According to the evidence of assistant commissioner Tiatia Motootua, which I accept, when he showed the marijuana leaves to the accused, the accused replied they belong to him. When the assistant commissioner also showed the marijuana seeds to the accused, the accused replied that they were seeds of the marijuana that he smoked. Sergeant Latu Latu who was present when the assistant commissioner showed the marijuana leaves and seeds to the accused gave evidence confirmatory of the evidence by the assistant commissioner as to the replies given by the accused.

[10] After the pistol, the envelope containing dried marijuana leaves, and the five marijuana seeds were found, constable Fetu Taalili also found plastic bags inside the bedroom of the accused and his wife. According to the evidence of assistant commissioner Titatia Motootua, the police found five or six plastic bags together with two straws in the bedroom of the accused and his wife. Each plastic bag contained white powdery stuff. When the accused was shown those plastic bags and asked about them, he replied what was inside the bags was "ice" that they used. It is not clear from the accused’s answer who were "they" he was referring to. When the accused was asked about the straws, he said they were used to consume "ice". Sergeant Latu Latu who was present confirmed the evidence of the assistant commissioner in this regard.

[11] After searching the bedroom of the accused and his wife, the police searched the other rooms on the ground floor except the sitting room. When the police did not find any narcotic or narcotic related substance in those rooms, they proceeded to search the rooms on the top floor of the accused’s house.

[12] In the room which the accused told the police was a guest room, constable Heleme Paila found a bag containing marijuana seeds on a double bed which was inside the guest room. Assistant commissioner Tiatia Motootua testified that when he asked the accused about those seeds he replied that the seeds belong to him. The accused then said that he sometimes smokes marijuana in that room. The seeds were then counted by constable Feagai Matatia and there were sixty six seeds.

[13] The police then searched the room next to the guest room. They found more plastic bags which contained powder-like stuff. When those plastic bags were shown to the accused and he was asked about them by assistant commissioner Tiatia Motootua, the accused said the powder-like stuff was some kind of medicine for the teeth.

[14] The police then searched the third room on the top floor which is the bedroom of one of the accused’s daughters but no narcotic or narcotic related substance was found in that room. Only a bullet was found by the police in that room.

[15] The police then came down to the sitting room on the ground floor. Constable Feagai Matatia searched the rubbish bin in the sitting room while the accused was sitting on a couch next to the rubbish bin. Constable Feagai found nineteen marijuana seeds inside the rubbish bin. When those seeds were shown to the accused by assistant commissioner Tiatia Motootua, he said the seeds belong to him and when he smokes marijuana in the sitting room, he would put the seeds inside the rubbish bin. Sergeant Latu Latu who was present said in his evidence that when the assistant commissioner showed those seeds to the accused, the accused said they belong to him.

[16] The pistol, marijuana leaves, marijuana seeds, the two straws and the plastic bags containing powder-like stuff which the police found inside the accused’s house were all given to sergeant Latu Latu who was the exhibits officer during the search as soon as those items were found. When the police returned to the Apia police station, sergeant Latu Latu gave those items to sergeant Herbert Aati who was then the assistant exhibits officer for the Ministry of Police.

[17] Sergeant Herbert Aati then labelled each exhibit and locked them in the police exhibits room. On 22 March 2006, sergeant Herbert Aati prepared samples from each of the exhibits of the narcotic and narcotic related substances, placed each sample in a sealed standard drugs envelope, and sent those samples to the ESR in Auckland, New Zealand, for analysis.

[18] The reports from the ESR analysts, which the prosecution produced as part of its evidence, show as follows:

(a) the leafy plant material and four seeds contained in a standard drugs envelope was cannabis plant material and the cannabis seeds were seeds of the genus cannabis sativa L;

(b) of the ten plastic bags and the two plastic straws, the largest of the plastic bags contained constituents of cannabis, including tetrahydrocannibol, which was consistent with the bag which contained cannabis plant of the genus cannabis sativa L; the other nine plastic bags and the two straws contained traces of methamphetamine;

(c) the seeds which weighed 1.1 grams and were contained in another standard drugs envelope were cannabis seeds of the genus cannabis sativa L; and

(d) the five seeds contained in another standard drugs envelope were also cannabis seeds of the genus cannabis sativa L.

[19] The accused in his evidence said that the pistol which the police found in the bedroom of himself and his wife was given to him by a friend in December 2005 to fix as it was not working. However, he could not fix the pistol. So he kept it as a souvenir and put it in a package which was for a perfume. He then placed the package on his wife’s shelf. He also said that he realised that the pistol was illegal in Samoa.

[20] The accused also said that when assistant commissioner Tiatia showed him the pistol, he merely said it is a pistol but it does not work. By implication the accused was denying the evidence given by the assistant commissioner and sergeant Latu Latu that when the assistant commissioner showed the pistol to the accused and asked him about it, the accused replied that it is his pistol but not working. After careful consideration of the evidence, I find the evidence given by the assistant commissioner and sergeant Latu Latu to be credible. I do not accept as credible the evidence given by the accused that he merely said to the assistant commissioner that the pistol is his but it does not work.

[21] The accused in his evidence also denied that he admitted to assistant commissioner Tiatia Motootua that the marijuana leaves found in his bedroom belong to him. He said he told the assistant commissioner that the marijuana leaves did not belong to him.

[22] The accused also denied in his evidence that he admitted to assistant commissioner Tiatia Motootua that the marijuana seeds found in his bedroom belong to him and that he smokes marijuana. In effect, this is also a denial of the evidence given by sergeant Latu Latu which confirms the evidence given by the assistant commissioner in this connexion.

[23] The accused also denied the evidence given by assistant commissioner Tiatia Motootua that the accused admitted to him that the plastic bags contained "ice" which he used. In effect, this is also a denial of the evidence given by sergeant Latu Latu which confirms the evidence given by the assistant commissioner.

[24] Later on in his evidence, the accused admitted that the marijuana leaves and seeds found by the police in his bedroom belonged to him. He also admitted that he smokes marijuana and the seeds were from the marijuana that he smokes. He also said that some of his friends would bring marijuana to his house where it is smoked.

[25] However, even without those admissions by the accused, I find it incredible that the accused would not be aware of the marijuana seeds found on the bedsheet of the very double bed on which he sleeps with his wife in their bedroom. I also find it incredible that the accused would not be aware of the marijuana leaves found by the police in the second drawer of the cabinet next to the double bed on which he sleeps with his wife in their bedroom. Likewise the straws and the plastic bags which contained powder like stuff and which were found in his bedroom.

[26] The bedroom of a husband and wife is a most private place. Just as private is the bed on which the husband and the wife sleep. But perhaps more private is the inside of the second drawer of the cabinet next to the bed on which the accused and his wife sleep. The accused also testified that only himself and his wife can go into their bedroom. Even their children are not allowed to go there unless one of them was told to go there. The accused also said that when the police arrived at his house he was sleeping on the very bed on which the police shortly afterwards found the five marijuana seeds.

[27] Either on the admissions made by the accused during his evidence or on the other evidence I have referred to, I am of the clear view that the accused was knowingly in possession of the marijuana seeds and leaves as well as the straws and plastic bags found by the police in the bedroom of himself and his wife. I also accept the evidence given by assistant commissioner Tiatia Motootua and sergeant Latu Latu about the admissions made by the accused to assistant commissioner Tiatia when he was shown those items and was asked about them.

[28] In relation to the bag containing sixty six marijuana seeds which the police found on the bed in the guest room on the top floor of the accused’s house, the accused said in his evidence that when assistant commissioner Tiatia Motootua showed him those seeds he replied that he did not know how those seeds came to be in his guest room. He did not say anything more to assistant commissioner Tiatia. So in effect the accused was denying the evidence given by the assistant commissioner that when the accused was asked about those seeds, he replied that the seeds belong to him and that he sometimes smokes marijuana in that room. The accused also said that his friends who usually come to his house may have left those seeds on the bed in his guest room.

[29] I have to say that I do not believe this part of the accused’s evidence. He has already admitted that he smokes marijuana and he also said that the seeds which were found in the bedroom of himself and his wife were from the marijuana that he smokes. I conclude that the seeds found by the police in the guest room on the floor of the accused’s house were also from the marijuana that the accused smokes. I also accept the evidence given by assistant commissioner Tiatia Motootua that when the accused was asked about those seeds he said they belong to him and that he sometimes smokes marijuana in the guest room.

[30] In relation to the plastic bags containing powder-like stuff which the police found in the room next to the guest room, the accused in his evidence confirmed what assistant commissioner Tiatia had said that when those plastic bags were shown to the accused he replied that the powder-like stuff was used to clean his gold teeth. The accused also said that he used the powder-like stuff to clean his pair of glasses.

[31] What is not clear is why this powder was found in a room on the top floor when the accused’s bedroom which is self-contained with a shower and bathroom is on the ground floor. In any event, the samples of these plastic bags which were sent to the ESR for analysis were found to contain traces of methamphetamine.

[32] In relation to the marijuana seeds which were in the rubbish bin in the sitting room on the ground floor, the accused said that he had no knowledge of those seeds. He could have been set up by some of his friends who used to come to his house.

[33] The evidence given by the assistant commissioner was that when he showed those seeds to the accused and asked him about them, the accused replied that the seeds belong to him and when he smokes marijuana in his sitting room he would put the seeds in the rubbish bin. Sergeant Latu Latu had also testified that when the accused was asked by the assistant commissioner about those seeds, the accused replied they belong to him.

[34] I have to say that I find the accused’s evidence on this part of the case incredible. I believe the evidence of assistant commissioner Tiatia Motootua and sergeant Latu Latu that the accused said that these marijuana seeds belong to him and when he smokes marijuana in his sitting room he would put the seeds in the rubbish bin.

Submissions by counsel

[35] Counsel for the accused made oral legal submissions in relation to the charges of being in possession of an unlawful weapon under s.12 of the Arms Ordinance 1960 and possession of utensils for the purpose of the commission of an offence against the Act under s.13 of the Narcotics Act 1967.

[36] In relation to the charge of possession of an unlawful weapon, counsel for the accused submitted that the pistol found by the police in the bedroom of the accused and his wife was not working. The implication here is that a non-working pistol is not a pistol in terms of the Arms Ordinance 1961.

[37] With respect, I do not agree with this submission. Section 2 of the Arms Ordinance 1960 defines an "unlawful weapon" to include a pistol. The Ordinance makes no distinction between a working and non-working pistol or between a functioning firearm and non-functioning firearm.

[38] In my view, so long as a pistol retains its identity as a pistol then it is a pistol whether it is working or not working. Otherwise, only a pistol which is working would be a pistol and when it stops working it is not a pistol. When it is fixed and works again then it is a pistol again. If it stops working again then it ceases to be a pistol again. And so on and so forth, I therefore do not accept a definition of a pistol based on whether it is working or not working, functioning or not functioning.

[39] Both senior sergeant Lutz Keil and corporal Kapeli Faalogo who are members of the police special response unit also testified that the firearm that was given to them is a pistol. The accused in his evidence referred to the same firearm as a pistol which he kept as a souvenir in his bedroom because it was not working.

[40] I, therefore, conclude that the firearm in this case is a pistol which is a 22 calibre.

[41] In relation to the second submission by counsel for the accused that the utensils found in the accused’s house cannot be used for the purpose of the commission of an offence against the Act in terms of s.13 (b) of the Act, I think a distinction should be made here between the plastic bags and the straws.

[42] The largest plastic bag, as the evidence clearly suggests, was intended for keeping cannabis. The other nine plastic bags, as the evidence clearly suggests, were for keeping methamphetamine or "ice". Both cannabis and "ice" are narcotics. Counsel for the prosecution submitted that the plastic bags were therefore for the purpose of committing the offence of possession of narcotics in terms of s.7 of the Act.

[43] In relation to the two straws which according to the prosecution’s evidence were for the purpose of consuming "ice", counsel for the accused submitted that there is no offence of smoking or consuming narcotics provided in the Narcotics Act 1967. On the other hand, counsel for the prosecution submitted that one cannot be smoking or consuming a narcotic without being in possession of it at the same time. So the real offence which will be committed in terms of the Act is possession of a narcotic.

[44] I realise that this point is going up to the Court of Appeal. For the purpose of this case, I have decided to accept the submissions by counsel for the prosecution in relation to the plastic bags and the two straws as items which were in the possession of the accused for the purpose of the commission of an offence against the Act, namely, possession of narcotics.

Conclusion

[45] On the evidence adduced in this case which I accept I have decided that all five charges, including the charge of being in possession of an unlawful weapon as amended, have been proved beyond reasonable doubt.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
M V Peteru Law Firm