Police v Maposua [2010] WSSC 69 (17 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

TAVITA MAPOSUA,
VILIAMU MAPOSUA,
JULIUS MAPOSUA
and ANTHONY SCHWALGER, all males of Aleisa.
Defendants

Counsels: Ms L.Su'a and Ms R.Titi for prosecution
Mr K.Ainuu for the first defendant
Second Defendant -W/Arrest outstanding
Ms M.Tuatagaloa for the third defendant
Mr A.Roma for the fourth defendant

Hearing: 17 May 2010
Ruling: 17 May 2010

RULING OF NELSON J.
(voir dire application - admissibility of search warrant evidence )

Halfway into the trial of this matter counsels for two of the three accuseds have raised an objection as to the legality of the search warrants executed by the police which resulted in recovery of two firearms that are alleged to be involved in this offending. The police evidence was that these firearms are registered in the case of the 22 rifle to Maposua Aloi of Aleisa, the father of three of the accuseds persons and in respect of the 16 gauge pump action shotgun to Jacob Ah Siu the uncle of the fourth named accused. These firearms were recovered following a search of the residence of Maposua Aloi at Aleisa on 1 January 2007, the day following the shooting incident in this matter.

The evidence of Inspector Malu Talo who led the search was that on the day in question police were investigating an incident at Aleisa involving the discharge of a firearm. The inquiry however was not limited to merely discharging of a firearm but was an attempted murder inquiry and because it was New Years day and the courts were shut for the holidays and because there was an element of urgency in the matter he decided to seek a search warrant pursuant to section 21 of the Arms Ordinance as opposed to the normal procedure of applying to a judge or deputy registrar for a warrant under section 83 of the Criminal Procedure Act 1972. These two sections provide:

"21. Search of land or buildings for arms, ammunition or explosives – If any commissioned officer of Police has reason to suspect that there is in any house, building, land, vehicle, vessel or other premises any firearms, ammunition, or explosives in respect of which any offence against this Ordinance has been or is about to be committed or which may be evidence of any such offence, the commissioned officer, or any member or members of the Police Service of any rank authorized by him, may enter any such house, building, land, vehicle, vessel, or premises, and either by day or by night, and search the same or any part thereof, and may seize any firearms, ammunition or explosives found therein, and detain the same."

"83 Search warrants –

(1) Whether or not an information has been laid, a Judge, Magistrate, Fa'amasino Fesoasoani or Registrar who is satisfied on the oath of any person that there is reasonable ground or good cause for believing that there is in any building, aircraft, ship, vehicle, box, receptacle, premises or place:

(a) Anything upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or

(b) Anything which there is reasonable ground to believe will be evidence as to the commission of any such offence; or

(c) Anything which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence;-

may issue a search warrant, which shall be in the prescribed form (if any)."

(2) Every search warrant shall be directed either to any constable by name or generally to every constable, and any such warrant may be executed by any constable

(3) Every search warrant shall authorize any constable at any time or times within one month from the date thereof to act in one of more of the following ways:

(a) To enter and search the building, aircraft, ship, vehicle, premises or place referred to therein with such assistants as may be necessary, and if necessary, to use force for making entry, whether by breaking open doors or windows or otherwise;

(b) To break open and search any box or receptacle therein or thereon;

(c) To seize anything referred to in subsection (1) of this section.

(4) Every search warrant shall be executed by day, unless the warrant expressly authorizes the execution thereof by night.

(5) It is the duty of everyone executing any search warrant to have it with him and to produce it if required to do so.

It can readily be seen that the section 21 search warrant is limited to offences under the Arms Legislation whereas a section 83 warrant is of general application and applies to all offences punishable by imprisonment.

A section 21 warrant was accordingly prepared and signed by the Inspectors superior officer Superintendent Soonalole. The warrant authorized the police to search the house of Viliamu Aloi situated at Aleisa, he being the key suspect in this matter and in this regard it can be noted from the evidence of the complainant that he named this particular accused as the primary gunman in this matter. The inspectors further relevant evidence was that the police were informed this accused and the other children of Maposua Aloi all lived with him at their fathers house at Aleisa.

As a result a dawn raid was conducted by the police on 1 January 2007 and the house of Maposua Aloi was subjected to search. Recovered by that search were two firearms now exhibited as "P-5" and "P-6" for the prosecution being the .22 rifle and the 16 gauge pump action shotgun. The evidence of the then Arms Officer Corporal Kapeli Faalogo is that the rifle was registered to Maposua Aloi and the shotgun to one Jacob Ah Siu.

The objection taken to the section 21 search warrant is that the warrant is defective for two reasons. Firstly section 21 warrants can only be used where there is in any premises any firearm "in respect of which any offence against the Arms Ordinance has been or is about to be committed" or any firearm "which may be evidence of any such offence". Because the offending under consideration by police was discharging a firearm which is not an offence under the Arms Ordinance but instead is an offence under the Police Offences Ordinance 1961, section 21 therefore does not apply and a search conducted pursuant to a section 21 warrant would be illegal and any evidence obtained as a result thereof should be excluded. The second ground of objection was that the warrant authorized a search of Viliamu Maposua's house not his fathers house and therefore the search was illegal and again any evidence so obtained would equally be tainted by that illegality and should be excluded.

The problem with the first basis of objection is that the inspectors evidence was that the police were investigating not just an unlawful discharge of a firearm but the discharging of a firearm in an attempt to murder someone. The ambit of the police inquiry was wider and this is consistent with the evidence of the complainant who has already testified that after giving much consideration to this incident he decided not to seek retribution but to notify the police about it. And since section 15 of the Arms Ordinance makes it an offence to present a firearm without sufficient and lawful purpose at some person, the section 21 warrant was therefore in my view also issued in respect of an alleged offence under the Ordinance and in respect of evidence of any such offence. The words are to be given their natural and ordinary meaning and the natural and ordinary meaning of section 21 is a search warrant can be issued for the purpose of obtaining evidence of a possible crime committed or about to be committed in breach of the Ordinance. The section 21 warrant was therefore sanctioned and lawfully issued under the Arms Ordinance.

It was also sanctioned because of a possible breach of section 9 of the Ordinance considering that the firearms were registered to Maposua Aloi and Jacob Ah Siu neither of whom were said by any of the witnesses to have possession of a firearm or to be at the scene of the alleged offending at the time of the alleged offending the previous night. Section 9(1) provides:

"9. Registration of firearms - (1) It shall not be lawful for any person other than a licensed dealer to be in possession of any firearm for a period longer than 7 days unless he is registered as the owner thereof under this section."

Equally the warrant could have been authorized on the basis of possible breaches of section 7 of the Arms Ordinance as to temporary permits to be issued to those in possession. Section 7(1) provides:

"7. Permits for possession – (1) Subject to the provisions of this Ordinance, no person shall, whether by way of purchase or in any other manner, procure possession of any firearm or ammunition otherwise than pursuant to a permit under this section."

On any one of these three basis was the section 21 warrant authorized and the first ground of objection must fail.

I find nothing of substance in the second ground of the objection namely the fact that the search warrant does not properly describe ownership of the premises. Firstly, there has been no evidence from the accused that the true and only owner of the house that was searched was in fact Maposua Aloi and secondly the police were acting on information that the primary suspect who is the one named in the warrant lived in the house. As such the rooms from which the weapons were recovered as shown to the officers by the accused Schwalger who was at home at the time the search was conducted can fairly be described to have been obtained from the premises (i.e. room) of each respective accused. Thirdly and finally, there is no requirement in section 21 that the owner of the house or premises be specifically named in a warrant. Section 21 is in very general terms. It refers to "any house" and "any such house". The emphasis of the section being not the identity of the owner of the house or its occupier but on what is suspected to be contained therein. One can well imagine a situation where police suspicions are directed towards a deserted or unoccupied house or premises, the ownership of which is not readily discoverable. I do not believe it was Parliaments intent that the wording of section 21 would preclude the search of such a premises or building. There is certainly nothing to indicate that was Parliaments intent. Quite the opposite is demonstrated by the words of the section itself. The second ground of the objection must also fail.

The final point raised in defence counsels submissions is whether the police are required to use a section 83 type search warrant rather than a section 21 type search warrant in a particular case. There is nothing in the legislation to indicate the police are limited in their choice of warrants. The court can therefore only conclude that it is a matter entirely for the police to decide whether to use section 21 or section 83 or indeed the search warrant provisions of the Narcotics Act in an applicable case. The only requirement that does exist is that having opted for a particular choice they are bound to fulfill and meet the requirements of the section used and it may well be as was the case here that there were good reasons for using a section 21 warrant as opposed to one under section 83 of the Criminal Procedure Act. In this case I find that the police have properly complied with the requirements of section 21 of the Arms Ordinance, the warrants there under issued were valid and enforceable and the materials recovered pursuant to those warrants are admissible in these proceedings.

JUSTICE NELSON