Police v Faisauvale [2010] WSSC 55 (11 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

TAGALOASA FILIPAINA FAISAUVALE,
male of Faleatiu and Vaitele
First Defendant

AND:

TAEI FOTU SINAPATI,
male of Faleatiu and Vaitele
Second Defendant

Presiding Judge: Justice Slicer

Counsel: P Chang & G Patu for the Prosecution
T S Toailoa for the First Defendant
I Sapolu for the Second Defendant

Hearing: 18, 19, 20, 21 May and 8 June 2010
Decision: 11 June 2010

Charge: Possession of Narcotics, Armed with a Dangerous Weapon

REASONS FOR DECISION

1. The first defendant ("Filipaina") was charged with the crimes of Possession of Narcotics, Possession of a Dangerous Weapon and Ammunition and being Armed with a Dangerous Weapon contrary to the Narcotics Act 1967 sections 7 and 8; the Arms Ordinance 1960 section 12 and Police Offences Ordinance 1961 section 25.
   
2. The second defendant ("Sinapati") was charged with the crime of Possession of Narcotics.
   
3. A third man charged has died before the commencement of this trial.
   
4. On 8 August 2008, police officers empowered with a search warrant directed against Filipaina went to a property at Vaitele. On their way they recognized a red Cherokee vehicle frequently used by the first defendant. They searched the vehicle and found ammunition in or near the front driver's seat. Some of that ammunition was proscribed by law.
   
5. During the search the partner of the first defendant left a nearby store Movies4U and was intercepted by Tomasi Tu'ua a police officer and taken some little distance from the vehicle. Her statements to police are not admissible on the trial of Filipaina. Police found and retrieved a Ruger .22 semi-automatic pistol with a loaded magazine from her handbag and presented it to the defendant along with the ammunition found in the vehicle. Filipaina acknowledged that they had retrieved the items but made no admission of ownership or knowledge of their existence.
   
6. Police proceeded on their way to the Vaitele property. They were accompanied by the defendant who was at that stage effectively in their custody although not subject to arrest. On arrival some of the police officers observed three young men in the compound who immediately began to run toward the back of the main house. One of the men, Sinapati, was seen to run inside and reappear at the rear, throwing an object over the fence onto adjoining land. He later admitted throwing a bag as described but claimed that he did not know its contents. Police located the bag and recovered its contents consisting of marijuana leaf and seeds, the subject of the police informations. They also recovered 99 small packets commonly used in the packaging and sale of the narcotics.
   
7. Sinapati admitted to the police that he had thrown the bag over the adjoining fence but denies knowledge of its contents.
   
8. The bag and its contents were recovered and shown to Filipaina who acknowledged its contents and agreed that it was marijuana but made no admission of knowledge or possession.
   
9. Both defendants were taken to the police station and charged.
   
10. On 18 August 2009, Filipaina was taken from prison custody to the Court to apply for bail, by four police officers who included Sergeant Tomasi Tu'ua. Tu'ua gave evidence that the defendant had asked him to help in the prosecution of his case and offered a bribe if the two other men arrested could be blamed and he himself exonerated. Filipaina, who gave evidence at trial, denied the evidence or any suggestion of a bribe stating that there had only been an innocent conversation about motor vehicles.
    
11. The case is, in part is circumstantial or at least one in which inferences are necessary before there could be a finding of guilt beyond reasonable doubt.
    

FABRICATION AND CONTINUITY OF EVIDENCE

12. Filipaina suggested through his counsel's cross-examination of prosecution witness that the pistol and ammunition had been 'planted' at the scene by police who had previously tried unsuccessfully to implicate him in criminal activity. The suggestion is rejected. There were too many police witnesses present at the time of the search who gave cogent evidence at trial. Whilst one or two officers might have concocted false evidence, it is unlikely that many would risk dishonour and dismissal. There was too much coincidence in the finding of an illegal object in his car and an illegal substance in his house, a finding not disputed. In evidence at trial, he did not seriously dispute the finding of the weapon and ammunition but claimed to have no knowledge of their existence.
    
13. The Court accepts the evidence of police that the ammunition was found in the vehicle and the loaded weapon in the handbag of the defendant's partner.
    
14. A second argument was made as to the marijuana. The substance had been taken to the police station and given to the exhibits officer. In turn, she had transferred responsibility to a second or replacement exhibits officer, Sergeant Feagai Matatia. Matatia had delivered it to the Alafua Forensic Drug Testing Centre, a matter confirmed by Faumua Amosa an authorized analyst appointed under the Narcotics Act 1967 and who identified the substance as a narcotic. The exhibits were delivered in standard sealed envelopes marked EXHDS/2009-138 (a)-(b). Continuity of the chain of evidence has been established.
    

PRIMARY FACTS AND FINDINGS

16. The primary facts are not, in substance, controversial. The findings are:

1. The lease of the land at Vaitele was in the name of the former wife of Filipaina who no longer lived in the house.
   
2. On 8 August 2009, police officers, authorized to search the house and land at Vaitele, found a red Cherokee vehicle parked outside a video store Movies4U. Filipaina was seated in the driver's position. A search of the vehicle revealed a black bag at the bottom of the driver and passenger seats. The bag contained 22 rounds of ammunition of 3 different calibers.
   
3. During the search, the defendant's wife was intercepted as she left the store. A search of her handbag revealed the presence of a .22 Ruger semi-automatic pistol, 10 rounds of .22 ammunition in its magazine and $1,387.00 in varying denominations.
   
4. The items were shown to the defendant who made no admissions.
   
5. Police, accompanied by Filipaina, went to the house at Vaitele intending to search the premises. On arrival some police saw three young men run towards the back of the house. One of them, Sinapati was seen to run into the house, exit through the back and throw an object over the rear fence.
   
6. The bag was recovered by police and found to contain the narcotics. The contents were shown to Filipaina who made no admissions.
   
7. Two of the young men, Sinapati and Lomitusi were nephews of the defendant, both of whom were charged. Lomitusi has since died. These three men were employees or contract workers of Filipaina who lived and worked on the land and slept in the house.
   

POSSESSION

17. The prosecution must prove:

1. Possession of the unlawful or illegal object or substance;
   
2. Knowledge of the existence of the item possessed.
   
18. Possession extends beyond immediate personal possession at the relevant time (DPP v Brooks [1974] AC 862). The term depends on the context in which it is used (Woodage v Moss [1974] 1 All ER 584; Towers v Gray [1964] 2 All ER 68; R v Howells [1977] Q.B. 614). A person in possession is also in possession of its contents (Warner v Metropolitan Police Commissioner [1969] 2 AC 256; DPP v Brooks, supra).
    
19. To constitute possession, knowledge of possession is essential (Warner, supra). Possession of a drug can be readily established by the circumstances giving rise to control or method of possession (R v Peevey [1973] 57 Cr. App. R 554; E v Ashton-Rickardt [1978] 1 All ER 173).
    

CIRCUMSTANTIAL CASE

20. The case against each defendant is in part circumstantial or one of inference. Both cases are those of inference. Both defendants were in possession of an unlawful object or substance. The question is that of knowledge. The Court will apply the test that if the evidence permits a finding, consistent with innocence, the person charged ought be found not guilty.
    
21. The real question here is that of inference and the use of evidence which must be closely examined (Teper v R [1952] AC 480; Thomas v R [1972] NZLR 34; see generally; Cross on Evidence (6th ed.) paragraph 1100-1110).
    
22. The case against each defendant will be separately considered.
    

"TAGALOASA FILIPAINA FASAUVALU"

AMMUNITION

23. The Court finds that Filipaina was in control of the vehicle in which the ammunition was found. He gave evidence at trial that he did not know that it was in the vehicle and it was likely that the mechanic who had repaired the vehicle had left the ammunition inside. His evidence is not believed. He denied knowledge of the presence of the Vailima bottles which were easily seen. That is unlikely. He denied knowledge of the ammunition, but it was easily seen. He showed no surprise or shock when the ammunition was shown to him. In law he controlled the vehicle and was in possession of the ammunition. In fact, he must have been aware of its existence. Filipaina was the one constant person connected with the marijuana, the pistol and its ammunition and the ammunition in the vehicle. Coincidence can be taken too far. The evidence given by Filipaina at trial was inconsistent, contradictory and not believable.
    
24. The Court finds that the first defendant was in possession, with knowledge, of the ammunition alleged in Information S11954/09 and is satisfied, beyond reasonable doubt that he is guilty of the crime contrary to the Arms Ordinance 1960, section 12 (1)(2).
    

PISTOL AND AMMUNITION

25. The pistol and magazine were found in the handbag of the defendant's partner. She had been in the vehicle controlled by the defendant. He gave evidence that they had earlier gone to a bank in Apia and withdrawn money to pay the mechanic. That money had also been found in the handbag which also contained his bank passbook. It is unlikely that the mechanic had left the ammunition in the vehicle and the pistol in the handbag. It is unlikely that there was a coincidence of the presence of a pistol and ammunition in the vehicle without the knowledge of the defendant. He showed no surprise when the pistol was shown to him.
    
26. The case of Police v Emirali [1976] 1 NZLR 286 does not assist the defendant. There the possession of a narcotic could equally have been that of the defendant's wife and the Court not satisfied of guilt on the evidence. In this case the decision and reasoning of the Chief Justice in Police v Patrick Chui (Supreme Court of Samoa, 25 September 2007) is more apposite.
    
27. The Court does not accept the evidence of the defendant that he had no knowledge of the presence of the pistol or ammunition while he had control of those objects in the vehicle. Given the finding that he had knowledge of the ammunition found in the vehicle, the presence of the money found in the handbag, the relationship of the defendant and his partner; the owner of the handbag, it is unlikely that the defendant could be unaware of the presence of the pistol and ammunition.
    
28. The pistol was unauthorized and unlawful contrary to the Arms Ordinance 1960.
    
29. The Court finds that the first defendant, with knowledge, was in possession of the pistol and ammunition alleged in Informations S1941/09 and S3265/09, and is satisfied beyond reasonable doubt that he is guilty of the crimes of Possession of an Unlawful Weapon and Ammunition contrary to the Arms Ordinance 1960, section 12.
    

ARMED WITH DANGEROUS WEAPON

30. Information S1940/09 alleges that the defendant was 'armed with a dangerous weapon'. The Police Offences Ordinance 1961, section 25 provides:
    

"Persons armed – (1) Every person who is armed with any offensive or dangerous weapon, instrument or thing and who cannot prove (the onus being on being or her) that he or she was so armed for a lawful purpose commits an offence and is liable to imprisonment for a term not exceeding one year."

31. In order to be 'found armed' a defendant must have the weapon immediately for use. It is not sufficient for him to have in his vehicle a weapon which he cannot readily arm himself in a few minutes (Rowe v Conti [1958] VicRp 87; [1958] VR 547; Miller v Hrvojevic [1972] VicRp 31; [1972] VR 305; R v Patterson [1962] 2 Q.B. 429). Here the weapon was in the handbag of the defendant's wife. It was outside the vehicle. When found the defendant had possession of the weapon while it was under his control but it does not follow that he was armed. The Court is not satisfied beyond reasonable doubt that the defendant is guilty.
    
32. The Court finds that the defendant is not guilty of the crime alleged in Information S1940/09.
    

NARCOTICS

33. The marijuana was found on the land adjacent to that controlled by the defendant. It had been thrown there by the defendant's nephew and employee. It had been on 'the defendant's land.'
    
34. The Court accepts that the defendant controlled and used the land for a variety of purposes including the making of bricks and growing of vegetables. He employed persons, including the second defendant, to cultivate the land. A considerable amount of marijuana had been on the land. The evidence of what Sinapati said to police is not admissible against Filipaina. The evidence of family relationship, employment, the size of the land, the amount of marijuana, and the packaging and plastic bags are relevant and cogent. Filipaina controlled the land and the activity of his employees. In his evidence at trial, the defendant and his witnesses attempted to hold Lomitusi and Sinapati responsible. In the police car on 18 August, he had asked Sergeant Tomasi Tu'ua to place the blame on Taei and Fotu (wrongly since they were the names of one person – Sinapati).
    
35. The Court does not accept the defendant as a credible witness. He visited the property regularly. He was close by in his vehicle on the morning of the search. He showed no surprise or outrage when the marijuana was found and shown to him. The premises, quantity of narcotics, the plastic bags and the amount of money found in the handbag suggest a commercial operation beyond the capacity of Sinapati, aged 17. The Court accepts the prosecution evidence that there is often a connection between firearms and drugs.
    
36. On 18 August 2009, Filipaina said to Sergeant Tomasi words to the effect that 'he did not wish to live in that place (the prison) and would give the officer a car which would soon arrive from New Zealand if the blame could be placed on the two who were living together' i.e. Lomitusi and Sinapati.
    
37. The Court does not accept the evidence of the defendant that he had no knowledge of the marijuana or his denial that the above conversation with Sergeant Tomasi did not happen.
    
38. The Court is satisfied beyond reasonable doubt that the defendant is guilty of the crime of Possession of a Narcotic contrary to the Narcotics Act 1967 sections 7 and 18 as alleged in Information S1939/09.
    

"TAEI FOTU SINAPATI"

39. Sinapati is the nephew of the first defendant. He lived and worked on the property. When police arrived he ran towards the house, took a bag, went to the back and threw the bag over the rear fence. The bag contained a large amount of marijuana, some of which was tightly wrapped. He told police that he had done so because of the direction of another. The case against him was that:
    
    1. He lived and worked on the property;
       
    2. He was the nephew and employee of the first defendant and worked under his direction;
       
    3. He ran immediately on the arrival of police;
       
    4. He selected a specific bag from the house and attempted to hide it by throwing it over the fence;
       
    5. The bag contained marijuana;
       
    6. Propositions 3, 4 and 5 show knowledge of the contents of the bag.
       
40. The counsel for the defendant relied on the case of R v Metuariki [1986] NZCA 45; [1986] 1 NZLR 488 as authority for the proposition that the defendant was entitled to raise the defence of honest belief. In that case the Court of Appeal held that knowledge would be presumed unless an accused could point to some evidence that he honestly believed his actions to be innocent. If that evidence is identified the onus was on the prosecution to negate that general proposition.
    
41. Sinapati told police that he had been instructed by Filipaina to throw away the bag if police arrived at the premises. He did so. The clear inference is that he knew or believed that the bag contained an illegal or unlawful object, material or substance. He told police that he did not know what was in the bag until after it had been recovered. But his conduct, in running into the house, the picking up of a particular bag and the throwing of that bag in an attempt to conceal it are cogent indications of guilty knowledge.
    
42. The flight of Sinapati can be regarded as a manifestation of consciousness of guilt (R v Melrose [1989] 1 Q.D. R 572; R v Power [1996] SASC 5653; [1996] 87 A Crim. R 407). He lived and worked on the property. The quantity of narcotics was large. He told police that he threw the bag on the advice of another. He had possession of the bag. The Court accepts that he had knowledge of the contents.
    
43. The Court is satisfied beyond reasonable doubt that the second defendant is guilty of the crime of Possession of Narcotics contrary to the Narcotics Act sections 7 and 18 as alleged in Information S1939/09.
    
44. The first defendant is convicted of the crimes of Possession of Ammunition and Unlawful Weapon as stated in Informations S1941/09, S1954/09 and S3265/09.
    
45. The first defendant is convicted of the crime of Possession of Narcotics as stated in Information S1939/09.
    
46. The first defendant is acquitted on Information S1940/09.
    
47. The second defendant is convicted of the crime of Possession of Narcotics on Information S1939/09.
    

JUSTICE SLICER