Police v Tua [2010] WSSC 97 (13 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

TALAIGA PUIPUI TUA, male of Fugalei and Satitoa Aleipata.
Defendant

Counsels: Ms F. Vaai for prosecution
Ms MV. Peteru for defendant

Hearing: 1 July 2010

Submissions: 16 July 2010

Decision: 13 August 2010

DECISION OF NELSON J.

The defendant is charged that on 6 June 2008 he was in possession of 16 small plastic bags of dried marijuana. There was no dispute that what the bags contained was marijuana or materials from the prohibited narcotic plant Cannabis Sativa L. That was conceded by defendants counsel in the course of the trial. What was contested relates to whether or not the defendant was in possession of the bags which were alleged to have been in a small camera pouch.

At the hearing the police sought to introduce into evidence a cautioned statement said to have been voluntarily obtained from the defendant by the investigating officer. The cautioned statement contains inter alia an admission that the substances in question are marijuana but in it the defendant said the drugs belonged to someone else. At the end of hearing the evidence I ruled that the cautioned statement was inadmissible for reasons to be given.

Essentially these reasons are as follows: it was not contested that at the time of the police interview and this alleged offending, the defendant was 18 years of age and that he was interviewed by the investigating officer in the absence of family members. There are invariably inherent dangers associated with taking statements from young persons absent a parent, caregiver or older relative. In the case of Police v Vailopa in [2009] WSCA 11, the Court of Appeal held to be rightly excluded an incriminating admission obtained from a 15 year old interviewed in the absence of his mother who had been present at an earlier police interview.

However this is not the ground upon which I excluded the cautioned statement in this case. It arises from the oral evidence of the investigating officer whose evidence in chief was that after he advised the defendant of his right to silence the defendant indicated to him he did not wish to make a statement. The matter was not clear from counsels questioning so I asked the officer if that was in fact what the defendant said and his reply twice to the court was that was what the defendant said; which is a little mystifying since the cautioned statement does not record that. The statement in the relevant part on the first page reads:

"q. do u understand your rights?

1. yes.
   
17. do u wish to invoke your right?
1. no."
   

This suggests that the defendant was prepared to make a statement.

The Sergeant later in his sworn evidence tried to explain that this is what he meant, that the defendant was willing to make a statement. But then in cross examination the sergeant went on to repeat that what the defendant meant in his view was he did not wish to make a statement. No effort was made to clarify his earlier testimony.

The end result of all this is I was left in reasonable doubt as to whether the defendant had elected to exercise his right to silence and the investigating officer nevertheless went ahead with the interview. In these circumstances it would be in my view dangerous to admit any incriminating admissions given the confusing state of the sergeants evidence. Accordingly I rejected the cautioned statement and it will not be used as evidence in this matter. But I note that the cautioned statement is not as incriminating as it appears at first blush because it merely contains an admission that the substances in question were marijuana which is not denied in this case. What it contained was a denial of possession which is why we are here.

The real evidence in this case comes from the other witnesses namely the arresting police officers. Firstly Constable Valaauina Tuamū who said he was on duty at Fugalei Market police post on the day in question. Police received information that someone was selling marijuana at the market bus stop. This information came from an informant who was unwilling to have his identification disclosed but who had taken a picture of the defendant on his cell-phone. He showed this picture to the constable and indicated to him where the defendant could be found.

The constable proceeded to the area in question together with a second police officer Constable Henry Wendt. His evidence was that he was able to identify the defendant from the photo on the camera phone and from what he was wearing. The officers apprehended the defendant and took him back to the market police post where the defendant was searched by the Constable and Constable Wendt while the bag that he was wearing or in samoan "asoa" was searched by a third police officer Constable Faavae Kolio. Nothing was found on the defendants person but inside the bag were 16 packets of dried marijuana leaves in small plastic coffee size packets. Constable Valaauina said the search of the bag was conducted in the office in the police post in the presence of all the three police officers. There is no suggestion there was anyone else apart from the police officers and the defendant present at this search.

In cross examination the constable was adamant that the defendant had been wearing the camera bag around his body. He described the camera bag as being dark in colour and the pouch part was located in front of the defendants body. He disputed the suggestion that the bag was picked up off a chair beside where the defendant was standing and said the only person standing beside the defendant was a female. But he did admit he heard the defendant tell Constable Kolio in the office when the bag was searched that the bag was not his. However no such statement was made by the defendant to either him or Constable Wendt when they apprehended the defendant and brought him to the office.

The evidence of Constable Wendt is essentially the same. He said a young person came with a camera phone, showed the picture of the defendant to Constable Valaauina who instructed him to accompany him to the bus stop. They apprehended the defendant who was standing there in possession of a bag, the word used by the witness again was "asoa" across his shoulders with the pouch in the front part of his body in the same way as was demonstrated to the court by Constable Valaauina. He said Constable Valaauina whispered something to the defendant and the defendant came quietly to the station where the bag was searched by Constable Kolio revealing the 16 coffee packets of marijuana. His evidence was he did not recall the defendant disclaiming ownership of the bag to Constable Kolio but he was certain the bag was not picked up from anywhere but was wrapped around or "asoa" by the defendant when he was apprehended.

The final police witness was Senior Constable Misi Poutoa who took custody of the defendant and brought him to the central police station and who confirmed also taking custody of a small black camera bag containing 16 packets of dried marijuana leaves.

The defendants evidence was that he was waiting for a bus home when a stranger bigger and taller than him came with the bag. In evidence in chief he said this stranger put the bag on a chair in front of him and asked him to look after it while he goes to do some shopping. He was surprised when some 30 seconds later a hand touched his hand and he turned to see it was Constable Valaauina who told him to pick up the bag and come with them for a talk as there was a matter they wished to discuss with him at the station. He said he innocently picked up the bag ignorant of its contents because that is what the constable told him to do and he strongly denied that he had the bag wrapped around his body or that he was "asoa" the bag. But he agreed that he went voluntarily with the police to the police post where he was searched and the contents of the bag discovered. He said he told Constable Kolio the bag was not his and described to the constable the features of the large big stranger and he also testified that the only one around when the police came and got him was one Mr Tupu Seumanu whom he called as a defence witness and his girl friend who currently is in American Samoa and to whom he was talking.

In cross examination, the defendant modified his evidence slightly by saying that the large stranger "threw" the bag onto the chair in front of him and ran away saying to him to look after the bag as he is going to do some shopping. When I questioned the defendant he again modified his evidence by saying that he had told the arresting officers about the large stranger running away. Something which he had not mentioned previously in his evidence in chief and which his counsel had not put to the arresting officers in cross examination.

I do not find the defendant a credible witness. He changed and added to his evidence in cross examination and if he is correct that someone dumped the bag by him and ran off as soon as the police arrived, the normal reaction of any person would be to tell the police about the runaway stranger and to disavow ownership or possession of the bag. Under no circumstances would someone in that position pick up the bag. I have seen and heard the defendant give his evidence, I do not believe what he says.

His witness Mr Seumanu does not assist his case either. The witness according to his own testimony knows the defendants father well and admitted talking to the father about the sons case. The witness was a care-taker for the Fugalei market public toilets at the time located on the main roadside of the Fugalei market bus stop. His evidence was that on 6 June 2008 buses and other vehicles were in the area and people like the defendant were waiting for their transport home. He said he walked in between two buses and he saw a person put a bag on a chair and run away. When he got to where the bag was he saw police officers and other people around the area. This evidence suggests he was some distance away and that his view of the events were partially obstructed by the buses.

I also note that 6 June 2008 was a Friday and everyone knows on a Friday afternoon the market bus stop is a hive of activity. Buses, taxis, vehicles and people are everywhere around this area and it is one of the busiest times in one of the busiest areas in Apia. Further there was nothing to suggest why this witness would remember in particular this bag and the actions of this one person. I am not satisfied the witnesses testimony is accurate or reliable and I have doubts as to his veracity given that he did not disclose what he knew to the police but only to the defendants father even though according to his own evidence his work office is located beside the police market post and he worked out of the Fugalei market every day during that year. When I put these matters to him his answers were to say the least unconvincing.

As in all cases the onus of proof is on the prosecution and the standard of proof is beyond reasonable doubt. I am satisfied on the evidence of the arresting officers the defendant was in possession of the camera bag containing 16 packets of dried marijuana leaves and that it was wrapped around him as demonstrated by the officers. The large stranger referred to by the defendant is a fictitious character created by the defendant and his witness to hide the truth.

It was argued by defendants counsel that even if the facts proved that the defendant had physical possession of the bag there was still no proof of the charge because there was no evidence to show he had knowledge of the bags contents and therefore the mens rea aspect of the offence has not been established. There is no question that the offence has two elements. firstly a physical ingredient whereby it must be proven the defendant had physical custody and control of the narcotics. This element has been established by the courts finding that the defendant had the bag strapped or "asoa" around his body. Counsels argument relates to the second element which is the mental element which relates to proof of awareness of the defendant that the bag had prohibited narcotics. In this respect I make reference to the courts observations in Police v Mariota [2003] WSSC 6 where it was said:

"Possession by the accused of the marijuana is prima facie evidence of knowledge".

In Police v Emirali [1976] 1 NZLR 2896 Mahon J said:

"Physical custody of a container in which drugs are situated will be prima facie evidence of concurrent knowledge of the character of the contents".

In He Kaw Teh v The Queen [1985] HCA 43 Brennan J stated:

"Again, dependant on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence".

These passages were cited with approval in Mariota where the court went on to say:

"This does not mean the legal onus of proof has shifted to the accused.

The legal onus of proof still remains on the prosecution. However, the evidential onus which can shift back and forth between the prosecution and the accused during the course of a trial has shifted to the accused to show that he had no knowledge of the narcotic substance found in his possession".

In this case possession of the bag by the defendant was established. The evidential onus then moved to the defendant to show that he had no knowledge of the contents of the bag. The evidence here showed that the defendant was found with the bag strapped or "asoa" to his body which is very strong prima facie evidence of knowledge. The evidence also showed that no disclaimer was made by the defendant to the arresting officers as to the bag or as to the contents of the bag and that the defendant went without comment and willingly with the police officers. Only when he was searched at the police post did he then disclaim ownership of the bag and tried to put the blame on a fictitious character depositing the bag with him and running away. He is asking the court to believe that a stranger would come and give to him a large and valuable quantity of narcotics. And for no reason at all for there is no evidence to suggest that the stranger was being pursued by the police or anyone else. He is asking the court to believe all this even though the evidence showed that the police were after no one else but the defendant whose photo had been shown to them by the mysterious informant. An informant who could well have been a rival drug dealer wanting to dob in the defendant to the police.

I believe the defendant well knew what was in the bag and was engaged in selling his packets of marijuana at the Fugalei Market bus stop during peak hour traffic when plenty of customers and people were around on the afternoon of Friday 6 June 2008.

For the reasons the court has given Talaiga the charge is proven against you beyond reasonable doubt. E tusa ai ma le fa'aiuga a le fa'amasinoga o lea o le a tolopō lau mataupu i le Aso Gafua aso 13 o Setema 2010 i le ta o le 10 i le taeao mo se faaiuga. E tatau ona e alu i le asō e vaai le Ofisa Faanofovaavaaia e manaomia sa latou lipoti mo oe, aua le fa'atamala o le lipoti lena e fesoasoani tele ia oe. O le tulaga i lau saini ma tulaga o le tatalaga o oe i tua fa'aauau pea e fa'atali ai le fa'aiuga i le aso 13 Setema.

JUSTICE NELSON