Police v Tana [2010] WSSC 24 (26 March 2010)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

JOE TANA male of Lepea
Defendant

Counsels: Mr M. Lemisio for the prosecution
RT Faaiuaso for the defendant

Decision: 26 March 2010

Sentence: 26 March 2010

DECISION & SENTENCE OF NELSON J.

The defendant is charged that at Tauese on 19 April 2009 he was in possession of an unspecified quantity of marijuana leaves. The leaves are alleged to have been securely wrapped in a newspaper. There is no dispute that the leaves that were in the newspaper were subsequently analysed and proven to be leaves from the prohibited narcotic plant Cannabis Sativa L but there is some dispute as to the seeds which accompanied the leaves to the Alafua Drug Testing Laboratory. It is however significant that the information does not refer to any seeds or specify the number of seeds alleged to have been found in the defendants possession. The information only refers to loose leaves of marijuana. It is equally significant that the relevant police officers themselves testified that they only saw leaves wrapped in newspaper, they did not testify as to seeing any seeds as well. Accordingly I propose to proceed on the basis that the charge and the evidence in this case relates to the possession of dried marijuana leaves only.

The police evidence is that in the early hours of Sunday 19 April 2009 the police received a call from Crabbers nightclub at Tauese an establishment notorious for weekend brawls. The police accordingly dispatched a van to the nightclub and they were advised that the call related to a person who had damaged one of the toilets in the nightclub. Although there are differences in the evidence of the attending police officers it appears that on arrival at the nightclub the defendant was given over into their charge together with the package of newspaper comprising the dried leaves of marijuana. The package was described as about the size of a fist. It also appears from the testimony of the attending police officers that the defendant had been chased down by the Crabbers nightclub bouncers and that the defendant had been assaulted and according to the deposition of Detective Sergeant Moalele his face was covered in blood. All the officers agree that the defendant was drunk and the process of his apprehension must have been quite boisterous because according to detective Moalele the defendants drunk brother and others also wanted to get into the police van and had to be kept out by the police officers. The brother later visited the police station looking for his brother and insisting on help for the defendant.

There are inconsistencies in the police witnesses evidence as to what the defendant was wearing and who was in the van and who went out of it at what time and as to who did what outside the van but I am satisfied that generally these are as to matters of detail and that essentially what occurred was what I have described above.

The only civilian witness to give evidence for the police was the head bouncer of the Crabbers nightclub Mr Peauli Lima. He testified that earlier before the police arrived, his bouncers had brought the defendant to him saying the defendant was responsible for damaging one of the toilets in the nightclub. He stopped the defendant from leaving the nightclub and instructed for the police to be rung. He said the drunk defendant managed to get away from him and ran down the street pursued by him and the other bouncers. Infront of that famous pizza parlour belonging to Sala Polynesian Airlines he says the defendant fell over and the group were able to catch up to him. They restrained him until the police arrived. He said that in the course of his struggling with the defendant and his questioning of the defendant as to why he damaged the toilet he tore the defendants shirt pocket and out of it fell the newspaper package which he handed over to the police. Peauli denied that any bouncers assaulted the defendant but it is probable that this is not true as there is no evidence anyone else had a reason or was in a position to assault the defendant other than the bouncers. It is more than likely the defendant was not the subject of gentle treatment from the clubs bouncers given what he had done and his attempt to outrun their speedy pursuit.

The defendants evidence is that on the night in question he was drinking at the nightclub with some friends and when he felt drunkenness coming on he walked to the front of the Lotto Samoa building at Tauese to wait for a taxi. He said he was talking on his cell phone when he was assaulted by a number of people and everything went blank. He felt himself being kicked while he was on the ground and he also said that he was robbed of an i-pod, some money and other items and he only regained consciousness in the police van. He was bleeding from his mouth and nose and his head and sides were painful. He also said he did not receive any medical treatment that night and was kept overnight in the police station. He denied damaging the Crabbers toilet or being in possession of marijuana. He said he only smoked cigarettes and suggested that the marijuana was planted on him either by the police or those who had robbed him. Why either of these parties would do that he did not explain. He said the next day he was interviewed by the police and when he was shown the marijuana he conceded it was marijuana but denied it belonged to him.

As stated earlier there are inconsistencies in some of the evidence of the prosecution witnesses but as I have indicated these are on matters of detail which is to be expected. It only goes to show that even trained police officers are susceptible to the human frailties of eye witness observation. Having heard and seen the witnesses I am satisfied the police witnesses are telling the truth as to the discovery of the marijuana and the defendant being in possession thereof, a matter which the defendant did not deny but he contested by saying it was planted on him. I am however having heard the evidence satisfied he knew what was in the newspaper package and that the dried marijuana leaves belonged to him. The requisites for the offence of possession are satisfied beyond reasonable doubt, the defendant is found guilty of being in possession of an unspecified quantity of loose marijuana leaves.

The quantity in this case is not such that the court requires a probation report and this matter has for one reason or another dragged on long enough. I am prepared to hear defence counsel now in mitigation.

Sentence:

The defendant in this case is a first offender and I agree with defence counsel the quantity of marijuana considering the description that was given by the witnesses is small. It also appears that whatever the quantity was it was for personal use rather than for commercial sale. More significantly the marijuana in this case comprises of leaves of marijuana and the defendant was of course not charged with and neither does the evidence establish that the leaves were accompanied by any seeds as referred to in the drug analysis report.

I however must not lose sight of the fact that drug offending is serious and Mr Tana you should be made very well aware that drug offending is a serious kind of offending and in appropriate cases people will go to prison for it. However your case is not one of them. The defendant will be convicted and ordered to pay the following sums:

1. a fine in the amount of $200;

2. police costs of $50 and court costs of $50;

total sum of $300 is payable forthwith in default one month imprisonment. By way of warning Mr Tana, a fine has been imposed this time but that is for today only. A toe molia mai oe i se mataupu faapenei pe toe aumai oe i se mataupu faapenei, pe tasi le sikaleti pe tasi sina fasi mariuana e tasi lava le faaiuga e tu’u atu e le faamasinoga. Ua manino lea tulaga? (Defendant indicated he was aware of it).

JUSTICE NELSON