Police v Ioane [2008] WSSC 76 (27 June 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IOANE @ JOHN SEFO,
male of Vaimoso.
Defendant

Counsels: Ms Fuimaono for the prosecution
Defendant unrepresented

Decision: 27th June 2008

DECISION OF NELSON J.

The defendant in this case is charged that at Fugalei market on the 22nd January 2008 he knowingly had in his possession 17 plastic bags of dried marijuana leaves being cannabis substances prohibited under the Narcotics Act 1967. The two essential elements of the offence are firstly the prosecution must prove beyond reasonable doubt that the materials in question are indeed cannabis prohibited under the Narcotics legislation and secondly that the defendant had knowing possession of it as alleged. There is no question the materials are cannabis substances and I am satisfied from the drug analysts report that they belong to the cannabis sativa L plant more commonly known as marijuana and indeed the defendant did not dispute this aspect of the charge.

What the defendant does dispute is the other element of the charge namely possession because he says the substances were not his and they were not in his custody or under his control. What in law amounts to custody or under his control was referred to in Police v Siaosi [2007] WSSC 9 in these terms:

"..... the offence of possession has two ingredients that need to be established beyond reasonable doubt to prove the charge. The first ingredient is the physical element of the charge namely, that actual physical custody or control of the marijuana must be proven to have been with the accused. Secondly, the mental element or ingredient of the charge namely it must be shown that there was an awareness on the part of the accused that the marijuana was in his possession. Such awareness can be manifested by the overt or direct words or actions of the accused or it can be inferred from his behaviour his actions and all the surrounding circumstances. These ingredients have been expressed in these terms in previous decisions of this court in cases such as Police v Mariota [2003] WSSC 6 a decision rendered on the 13th March 2003, Police v Leuluaialii [2006] WSSC 50 a decision given on 18th September last year; see also the judgment of the New Zealand Court of Appeal in R v Cox [1990] 2 NZLR at page 278 where that Court discussed the New Zealand equivalent to our provision, section 7 of the Narcotics Act 1967."

The police evidence consisted of a number of police witnesses in particular two constables who had been instructed by a senior officer to arrest the defendant who was drunk at the Fugalei market place. There was firstly the evidence of Constable Schwenke who together with Constable Oliva approached the defendant front on. They said they saw the defendant standing beside the entrance into an empty flea market stall. The defendant was facing them and his back was to the stall. In between his legs and a little behind him as demonstrated by the constable was a white plastic foam cup. As the officers approached the defendant moved slowly away and Constable Schwenke cut off his further retreat and grabbed him. His partner constable Oliva took possession of the white plastic cup. He testified that although there were people passing by where the defendant was standing no one else was near the cup and that when people saw the police officers approaching the defendant they disappeared very quickly. He also confirmed in cross examination that the defendant had possession of a bottle of spirit but at the time he was approached and arrested he was not drinking anything. He said his view was initially blocked by the doorway of the stall but as he got closer a distance of some 3 to 5 meters he saw the cup and saw the defendant walking away from it. He said he saw no one else walking or running away from where the cup was. A search of the defendant at the Market Police Post revealed that the cup contained 17 small plastic bags of dried leaves which subsequently were established by the drug analyst at the USP drug laboratory to be leaves of the plant cannabis sativa L.

Further testimony was given by another officer in the arresting party namely Constable Mikaele who with another constable approached the defendant from a different direction to Schwenke and his partner. They arrived shortly after Schwenke and his partner and confirmed that the cup was located in the entrance way into the empty flea market stall. He also confirmed no one was near to where the defendant was and that a search of the defendant at the police market post revealed only a bottle of spirit in his physical possession. This constables evidence like Constable Schwenke was to the effect that he saw no one walking or running away from where the defendant was standing neither did he see anyone standing with the defendant. There were other police witnesses called concerning the chain of custody of the marijuana but as stated the defendant did not appear to dispute that the substances in this case are in fact marijuana. Indeed when interviewed and questioned by the police as to what the substances were he readily admitted they were marijuana.

At the close of the prosecution case I explained to the defendant his legal options in the terms required by section 57 of the Criminal Procedure Act 1972 and the defendant indicated he did not wish to give evidence but he wanted to call a witness. His witness was his brother-in-law Matini Fetoia’i who was with him on the day in question at the Fugalei market.

This witnesses testimony was he went by bus with the defendant to the market place to do some faatau (shopping). The defendant went across the road from the market to Vaai’s shop and bought some beer from there and began drinking it. He then proceeded to where the shops were and talked to some friends. This witness said he was surprised when the police arrived and arrested the defendant and he saw a police officer go into one of the empty flea market stalls and bring out the cup in question. His evidence was that the defendant was far away from where the cup containing the marijuana was found.

As counsel for the prosecution has pointed out this evidence must be treated with great caution by the court because this witness is the defendants brother-in-law and they were living together at the time of the incident. This witness also admitted in cross examination that he and the defendant have discussed this case and no doubt this extended to discussing he being a witness for the defendant. It is also clear from Matinis evidence that he did not know everything going on this day. For example he was specifically asked whether the defendant had possession of a bottle of spirit and he said no. The defendant himself in questioning admits that he was in possession of a bottle of spirit and that this was found on him by the police, a bottle purchased together with the bottles of beer from Vaais store. In addition it is also clear from Matini’s evidence he was part of a different group. He was not standing next to or close to where the defendant was. Although he could see the defendant there is no evidence establishing that he was watching the defendants every move and indeed there would be no reason why he would do that. There are other aspects of his evidence that are unsatisfactory but suffice to say that given these and given that he is a relative of the defendant his evidence does not readily assist the defendant.

I prefer instead the evidence given by the police officers concerning this matter. I am satisfied that the cup while it was on the ground under the counter of the entrance into the empty flea market stall was not in the defendants physical custody and control but it was under his de facto custody and control. There is no reliable evidence that anyone else was in a position to claim custody or control or exercise power or dominion over the cup: see Police v Mariota [2003] WSSC 6 and Police v Leuluaialii [2006] WSSC 50. I am satisfied that the cup in question containing the narcotic substances was under the custody and control of the defendant and I am further satisfied of the necessary mental element being inferred from the circumstances that the defendant was knowingly in possession of these narcotic substances. That is enough to render him knowingly in possession of the narcotic substances and the charge is proven beyond reasonable doubt.

JUSTICE NELSON