Police v McCarthy [2009] WSSC 40 (1 April 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SOLOMONA McCARTHY,
male of Aleisa.
Accused

Counsel: Ms S. Fuimaono for the prosecution
Defendant unrepresented

Decision: 1 April 2009

DECISION OF NELSON J.

The defendant is charged that he did cultivate at Aleisa near Apia 39 prohibited marijuana plants ranging from 8 inches to 42 inches in height.

The evidence shows the plants were discovered on land belonging to the defendants deceased father at Aleisa. But the defendant said these plants were grown by his son-in-law without his knowledge and on a part of the property situated well away from his house and which he had given to the son-in-law and his wife to cultivate and use to feed themselves and their children.

The police evidence is that in the late afternoon of Friday 10 October 2008 they proceeded to Aleisa to execute a search warrant of the defendants property. They were in three vehicles and they turned into the defendants driveway which leads into his property. The testimony of the officers in the lead vehicle Constable Toddy Iosefa and Corporal Ioane Leusogi was that as they proceeded down the drive way they saw the defendant run away into some nearby bushes. The defendant had been on his front lawn fixing his weed eater according to Corporal Leusogi. Constable Toddy alighted from the vehicle and gave chase, caught up with the defendant and called out to him to stop which he did. He told him to come back and they returned to the searching police party. The evidence of the defendant running away was confirmed by a third police officer Detective Constable Ituau Ale Junior who was in the second of the three cars.

A search of the land was then carried out by the officers including a search of the plantation and bush areas seaward of the houses of the defendant and his family. Close to a walking track some hundred odd metres from the back of the defendants house the police discovered the 39 plants growing in three cleared and well tended patches. The police removed the plants and took them and the defendant back to the station to interview.

The defendant denied knowledge of the plants and said the crops were situated in the plantation of his son-in-law. The plants were placed in the police exhibit room and subsequently samples were taken from each of them according to Detective Constable Efo Moalele who sent them to the Alafua drug-testing laboratory for analysis. The evidence of the drug analyst Faumuina Falaniko is all samples tested positive for cannabis Sativa L a prohibited narcotic under the Narcotics Act 1967. I am satisfied from that evidence and the chain of custody evidence that the 39 plants found at the defendants Aleisa property were prohibited marijuana plants. The only question remaining is who grew and tended to them.

The defendant elected to give evidence and he disclaimed all knowledge of the plants. He said he gave that particular piece of the family property to his son-in-law Levi Levi to use to support his family. He said he was taken completely by surprise by the police discovery and because he had specifically told Levi not to grow such things. Why he felt it necessary to specifically tell Levi not to grow such things he did not explain. The defendant also denied running away when the police search party approached. He said he did not see the police and turned his back to go and check his squealing pigs in the family pig pen behind the house. And when the police called out to him he returned.

His son in law Levi Levi also gave evidence. He was not at home when the search occurred but went the next day and gave himself up to the police admitting the plants were his. He subsequently pleaded guilty to cultivation of these plants and is now serving a lengthy imprisonment term as punishment for his offending. He reinforced what his father-in-law said and maintained the defendant knew nothing about the plants. His wife Katie Levi the defendants daughter also gave evidence as did Meripa McCarthy the defendants wife and they too said the defendant had no knowledge of the son-in-laws activities.

There are a number of significant pieces of evidence that are relevant to the enquiry as to whether to believe the defendant and members of his family. The first is that the scene photos show a PVC water line running from beside the defendants houses along the walking track in the plantation all the way to beside where the plants were growing. Photo 7 shows a drum obviously used for water storage situated beside the water line and on the side nearest to where the plants were discovered. While the plant beds are not visible from where the water line and the drum are it is reasonable to assume the water line was for the purpose of servicing the marijuana plant beds. No explanation was given by the defence witness as to what other possible use the line may have had other than the defendants explanation that the line was for family use. If that is so why does it continue into the plantation many meters distance from the familys houses and the toilet and the bathroom facilities?

Secondly the evidence indicates that the defendants property slopes seaward from where the houses are to the plantation areas. And while the plantation beds are not visible from the houses the defendants evidence was that the son-in-law was cultivating this part of the land. It is simply not credible that the defendant who sees his son-in-law daily work his piece of the property and who lives in the house next door to the son-in-law and who no doubt in the context of a Samoan family would share food and everything else with the son-in-law, had absolutely no knowledge of the faiavas activities. And these are not plants that were grown yesterday, their height indicates they are mature plants that have been growing on the land according to Levi Levi for the last twelve months.

The defendant did not strike me as a person foolish enough not to know for almost a year that illegal plants were being grown under his very nose. The defendants account would be more plausible if we were talking about one or two plants but here we are dealing with 39 plants only three of which were under 1ft in height. And these were plants grown over the course of 12 months as testified to by Levi Levi.

Levi Levis suggestion that he grew the plants merely to see what they look like is equally implausible, you only need to grow one plant if that is your purpose. I also do not accept the defendants explanation as to why he turned his back on the police raiding party. If he did not see he must have at least have heard the sound of approaching vehicles coming down the drive way and the normal reaction of a person with nothing to hide is to stop what he is doing and see who is entering the land.

I accept the evidence of the three police officers that the defendant ran away from the approaching police party. These are not the actions of an innocent man with nothing to hide or ignorant of illegal plants growing on his property. The evidence of the witnesses for the defence cannot be accepted by the court. I am sure the women of the family are like the son-in-law trying their best to protect the defendant and save him from prison but what they do not understand is that by shielding such criminal behaviour they are in fact harming their family and the future welfare of their children. I am sure they do not want their children to grow up to be narcotic criminals. I have no doubt Solomona that you and your son-in-law were both involved in the growing and cultivating of these plants, the charge against you is proven beyond reasonable doubt. However there may be some doubt as to what exactly you did and what exactly your son in law did and I will consider that when I come to impose sentence.

E tusa ai ma le faaiuga a le faamasinoga ile mataupu lea Solomona, o lea ua tolopō ile ta ole 10 i le taeao ole aso 20 Aperila mo se talosaga mai le Ofisa ole Loia Sili. E manaomia foi se lipoti mai le Ofisa Faanofovaavaaia e fesoasoani ia oe i le mataupu, aua le faaletonu e tatau ona e oo ile Ofisa o Faanofovaavaaia e tapena mai le lipoti lena i se taimi vave. E iai vaega taua e aumai e le latou ofisa e uiga i le mataupu lenei. O tulaga o lau saini ma tulaga faapena faaauau pea e faatalitali ai le faaiuga o le mataupu lenei.

JUSTICE NELSON