Police v Okesene [2014] WSSC 183 (16 October 2014)

IN THE SUPREME COURT OF SAMOA
Police v Okesene [2014] WSSC 183

Case name:	Police v Okesene
Citation:	[2014] WSSC 183
Decision date:	16 October 2014
Parties:	POLICE (Prosecution) PETI OKESENE male Vaiaata Prison, Vaoala, Siumu and Falealili.. (Defendant)
Hearing date(s):	16 October 2014
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	In view of the contradictory nature of the evidence I am not sure that the evidence establishes beyond reasonable doubt that you Peti were the true owner of this one cigarette. Or that you were in possession of it within the legal definitions applicable. The law is clear if I am not sure the benefit of that doubt is to be given to you the defendant. Because of the contradictory nature of the evidence before me that is the position I find myself in. The charge against you is accordingly dismissed.
Representation:	F Lagaaia for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PETI OKESENE male Vaiaata Prison, Vaoala, Siumu and Falealili.
Defendant

Counsel: F Lagaaia for prosecution
Defendant unrepresented

Hearing: 16 October 2014

Decision: 16 October 2014

ORAL JUDGMENT OF NELSON J

1. Peti has been charged that on the 25^th day of January 2014 at Vaiaata Prison in Savaii he was knowingly in possession of one rolled marijuana cigarette. A charge to which he pleaded not guilty. He has elected to represent himself.
2. The prosecution case relies mainly on the evidence of two witnesses both prisoners who were at the relevant time serving their term at Vaiaata Prison in Savaii together with the defendant. The evidence of the first prisoner Paneta Lilomaiava was that on the evening of Saturday, 25 January 2014 after dinner him the defendant and two other prisoners were sitting on a concrete slab in the front of the building. They were “fa’asavili” or taking their evening breeze post dinner. After a time the other three left leaving him alone sitting on the concrete slab whereupon he noticed a cigarette lying where the defendant had been seated. He picked it up and smelt it. It was marijuana a smell he well recognizes. A drug laboratory test of the sample from the cigarette has subsequently confirmed it to be marijuana a prohibited narcotic under the Narcotics Act. He put it in his pocket.
3. When the group returned the defendant asked him if he had seen his cigarette. He told him no. The group then searched the area and told the defendant to think if he did not leave the cigarette somewhere else. After an unsuccessful search the group disbursed. He then gave the cigarette to the police officer who was on duty that evening. Who kept the cigarette until the next day when he reported the matter to Tuasivi Police Headquarters who sent a team to investigate.
4. One of the other prisoners was called to testify namely Misi Ioasa. He agreed they were taking the evening breeze on the concrete slab located some 5 meters or so from the front of the prison. After which they then went for a walk on the road leaving Paneta. But here the evidence of Misi differs from Paneta. Misi said that when the group returned in response to the on-duty policeman calling out to them, they were bundled off hurriedly by the police officer to the cell and locked up. They did not look for any cigarette. They did not enquire of the defendant about any cigarette.
5. Misi disavowed all knowledge of any marijuana cigarette. He said that if he knew the defendant was in possession of the cigarette he would have squealed on him to the prison authorities. Because otherwise he would get into trouble and would be sent back to serve his term in Upolu at Tafaigata which is not as relaxed a prison as Vaiaata. From my previous experience this is probably correct because prisoners who reoffend or get into trouble while serving terms in Savaii are transferred back to Upolu. Ironically Misi not admitting involvement of anyone resulted in exactly that. He is being sent back to Tafaigata.
6. Misi also said in response to questions from the defendant that a lot of prisoners have access to the particular concrete slab they were seated upon. Suggesting that it could have been one of them who dropped the cigarette subsequently picked up by Paneta.
7. It is clear the evidence of the two prisoners are contradictory. Paneta seeks to lay the blame on the defendant. Misi however denies the defendant was involved. In assessing their credibility I bear in mind these gentlemen are prisoners. And the location of this offending is inside the prison walls. There are lots of things that go on in prisons between and among prisoners. Most of which prisoners are afraid of and motivated not to disclose or admit to.
8. The court should be careful not to take the word of a prisoner for anything without any corroborating and confirmatory evidence. It may be Paneta got caught with the cigarette by the on-duty policeman hence his seeking to pass on the blame to a fellow prisoner. Maybe Misi and his group were sharing the cigarette and do not want to incriminate themselves or any member of their group. Maybe Misi is right one of the other prisoners who had access to the slab dropped his after dinner desert. No one noticed it until Paneta was the only one there.
9. The evidence indicate the prisoners were taking their after dinner stroll at about 7:00 pm. At a time described by Misi as “pogi pogi”. It also appears from the evidence the light nearest to the concrete slab was some distance away and was not an external building light making it quite possible for a rolled cigarette to lay unnoticed until the area was deserted of people.
10. In view of the contradictory nature of the evidence I am not sure that the evidence establishes beyond reasonable doubt that you Peti were the true owner of this one cigarette. Or that you were in possession of it within the legal definitions applicable. The law is clear if I am not sure the benefit of that doubt is to be given to you the defendant. Because of the contradictory nature of the evidence before me that is the position I find myself in.
11. The charge against you is accordingly dismissed.
    

JUSTICE NELSON