Police v Ioane [2012] WSSC 120 (4 October 2012)

SUPREME COURT OF SAMOA

Police v Ioane [2012] WSSC 120

Case name: Police v Norman Ioane

Citation: [2012] WSSC 120

Decision date: 4 October 2012

Parties: POLICE (prosecution) and NORMAN IOANE male of Togafuafua and Malie

Hearing date(s): 1 and 4 October 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
E Niumata and C Salamo for prosecution
Defendant in person

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
NORMAN IOANE male of Togafuafua and Malie
Defendant

Counsel: E Niumata and C Salamo for prosecution

Defendant in person

Hearing: 1 and 4 October 2012

Reasons: 4 October 2012

Charge: Possession of Narcotics (x1)

EX TEMPORE REASONS FOR DECISION OF SLICER J

1. Norman Ioane (“Norman”) has been charged with the offence of Possession of Narcotics, namely cannabis. On 23 December, at about 9 p.m., police located and ceased nine branches of marijuana and dried leaves of marijuana wrapped in two packets of newspaper. The items were seized at the place where the defendant and a friend, Glen Chan Tong (“Glen”) were present outside a store at Togafuafua.
2. The defendant Norman, who was unrepresented at trial, pleaded not guilty to the charge and elected to give evidence.

Chain of Evidence

3. The Court is satisfied that the items retrieved at the scene were the ones provided to Faumuina Amosa Falaniko (“Amosa”) and analyzed by him. The Court is satisfied that the items were properly marked EXHDS/2011-171a and EXHDS/2011-171b. The Court is satisfied of the validity of the Certificate of Analysis presented by Amosa and received as Exhibit P2, and his finding that the substance comprised in each package was cannabis sativa, commonly known as marijuana.

Prosecution Evidence

4. Vaimoe Peterson, a police officer, was one of a team led by Senior Sergeant Maoita’alii Kaio. His evidence was that at about 9 p.m. on 23 December, he observed the defendant drinking alcohol; he had a parcel and he threw it away. There were seeds which came loose and loose leaves. When thrown the parcel landed at a point about the width of the Court. The defendant ran away. Before that, the defendant was walking towards him then he ran away and saw him only for seconds. The other man drinking with him was Glen. He found the parcel that had been thrown away. It was picked up by Constable Tuifao Luatua. In cross examination, the witness said that he needed a torch to make it light.
5. Constable Tuifao Luatua, a police officer with the Criminal Investigation Division (“CID”) said he saw the defendant throwing something away. It was a parcel. The notes record: ‘The defendant came to us and spoke with police woman Joyce Tuaimalo. When I came to her, there were seeds scattered on the ground. I asked for a torch and with the torch I could see it was dried marijuana leaves. The package which was retrieved was about 6 foot away. The defendant ran away. I took the parcel and chased the defendant but was not able to catch him that night. Corporal Joyce was in charge of another parcel. The Information relates to both parcels. I gave my parcel to Corporal Joyce. The man who had ran away, I had not seen before. He was about 5 foot 6 inches. I noticed tattoos on his palm and wrist, and a tattoo on his face. The tattoo on his face looks like a teardrop.’
6. Glen Chan Tong was the man seated and drinking with the defendant outside the store Fridam Rental’s. He gave evidence for the prosecution. He denied that any of the marijuana was his. He told the Court he saw the police van coming along. The notes record: ‘Norman got up and walked towards the van. I had been drinking with him. I remained seated. Norman walked towards the police van and I noticed a police officer pick up newspaper near the defendant. I had seen him (the defendant) throw it away. He threw it as he went to the van. He threw it from where the witness was to the defendant, which was about 8 feet. A police officer picked up the package. I did not know what was in the package. Norman ran away and was chased by police. I know him well; we grew up together.’
7. Joyce Tuaimalo, a police Corporal was also present. She noticed Glen drinking beer at Fridam Rental’s. She reported: ‘We stopped and told them where to drink. I stayed in the van and Norman spoke with me and asked if I wanted to buy a Bluesky telephone. I grabbed his bag and noticed the Bluesky phone and SIM card. I said no. He took off and ran away into the darkness. I went and saw the police woman pick up and give me the marijuana cigarettes. Constable Tuifao gave me a second package. It was a newspaper with nine rolled cigarettes. Constable Tuifao gave me a package and was of leaves of marijuana and I gave it to the CID.’ In cross examination, she was asked whether she had said the cigarettes were found under a car tire but now you say they were under the car. Her reply was ‘I say the cigarettes were scattered under the car’.
8. There was a difference in what the people were calling the packages. Some referred to it as a branch with marijuana leaves on it and others called it like rolled cigarettes. But all said there were nine rolls of a substance wrapped in newspaper. The difference in description is of little import or worth little.
9. Sergeant Junior Tofilau received the packets from Corporal Joyce at the police station. Between 9 and 10 p.m. she came into the office with a small bag. They also brought in one male who was Glen Chan Tong. In his words: ‘I instructed them to release Glen. There was no exhibit officer so I locked the handbag with the marijuana inside my cabinet. A cellphone was given to Glen not to Norman.’ The evidence of Sergeant Junior is linking evidence between the substance found at the scene and that which was produced for analysis.
10. Corporal Viane Lauofo conducted a caution statement, witnessed by Ainea Uiese, on 26 December 2011. The defendant made no admissions. Corporal Viane conducted a further caution statement on 29 December. The defendant admitted his presence at the scene but denied that he knew who owned the marijuana. He said he ran away because he ‘did not want to be in custody again’. Corporal Viane was also one of the officers who proved the chain of evidence of the exhibits. Constable Ainea Uiese corroborated the evidence.
11. Constable Valaauina Tuamu was another who was part of the chain of evidence. In his original statement he stated that the number of cigarettes was twelve but he had amended it some days before trial when he met with the prosecutors. The discrepancies or differences are of little import.
12. Constable Onosai Feiuai witnessed the delivery of the items to Constable Giovanni Kruger, who was the exhibits officer and marked them as stated above in this judgment. He was given them and placed them in the exhibit room. He weighed the branches as 24 grams and the loose leaves at 16.9 grams. He delivered the exhibits to the University of the South Pacific drug testing unit for analysis.
13. The defendant gave evidence. He had, during trial, been told of his rights and given copies of the Criminal Procedure Act 1972 sections 57 (1) and (2) and section 59 with specific reference to the proviso and subsection 3. Those sections were translated to the defendant by the Registrar and copies handed to him following translation. The Court did not permit the prosecution to make a closing statement or summing up.
14. The defendant gave evidence at the hearing. He said that on that night he was drinking beer after he had been to work. He was walking to his fale but met with Glen and stopped. The police came and stopped, and walked towards him. The Court points out that the van used by the police was a rental van; in other words, it was not marked as a police van and that could be why the defendant did not have suspicion about the van. He said that Corporal Joyce called out from the door of the van and he went over to talk with her. While he was talking to her, he gave her the bag to check its contents. He saw officers were about to drag Glen to the car, so he fled, adding ‘that is my story. Next day the police came and I was taken to the office’.
15. He was cross examined. He denied that he threw away anything at all. He said that Glen’s evidence and the evidence of the three police officers were incorrect, especially the evidence of Glen: ‘he blamed me’. He did not know how the marijuana came to be under the police vehicle. He stated ‘I do not know how it got there. I did not discard or throw away these items. I did not discard the newspaper package. The marijuana was not mine’.
16. The Court accepts the prosecution’s evidence. It accepts the evidence of Glen because it was corroborated by police officers who saw the defendant, who agreed that he was at the scene. They saw him throw away the packages.
17. The Court is satisfied beyond reasonable doubt that the defendant was, on 23 December 2011, in possession of narcotics with a combined weight of 40.9 grams and the Court finds the defendant guilty of the charge. The defendant is accordingly convicted.
18. The quantity suggests that the cannabis was for both personal and commercial purpose but that question will be dealt with during the sentencing hearing.
19. The defendant is remanded in custody pending the sentencing hearing.
    

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(JUSTICE SLICER)