Police v Afitu [2015] WSSC 146 (17 April 2015)

IN THE SUPREME COURT OF SAMOA
Police v Afitu [2015] WSSC 146

Case name:	Police v Afitu
Citation:	[2015] WSSC 146
Decision date:	17 April 2015
Parties:	The Police (Prosecution) Tapana Afitu, male of Vaitelefou and Letui Savaii (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	I find Tapana the charge proven beyond reasonable doubt. Your proceedings are adjourned to the 4th of May for probation report and for sentence.
Representation:	Ms Amosa and F Ioane 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:

THE POLICE
Prosecution

AND:

TAPANA AFITU, male of Vaitele-fou and Letui Savaii.
Defendant

Counsel: Ms Amosa and F Ioane for prosecution
Defendant unrepresented

Decision: 17 April 2015

DECISION OF NELSON J

1. The defendant is charged that on the 8^th day of November 2014 he was in possession of one (1) small plastic bag containing dried marijuana leaves. To this he pleaded not guilty and on trial day re-affirmed his not guilty plea. He maintains the narcotics are not his and he has no knowledge how they came to be in the back of his taxi cab.
2. Police evidence is that on 08 November 2014 two officers were on traffic patrol at Savalalo. They were advised to be on the lookout for a taxi T-267 whose occupants were suspected to be smoking marijuana. The officers saw the taxi in front of Farmer Joe and pulled it over into the Farmer Joe car park. The vehicle was being driven by the defendant and in the passengers seat was his friend Viliamu Moli. In the back seat was Viliamus shopping which he was taking to his family in Savaii. The taxi was in the process of driving Viliamu to Vaitele to catch up with the “pasi o le vaa” or the bus for the ferry. The police officers described the defendant as being red faced and nervous when they pulled him over. But I read nothing into that as it is not unusual for a person to become anxious and worried when pulled over by police officers.
3. In the back seat of the taxi on a blue floor mat behind the defendants seat the police officers noticed a bank size plastic bag containing what appeared to be marijuana leaves. They accordingly hopped into the taxi and instructed the defendant to drive the vehicle to the Apia Police Station. There photos of the vehicle were taken and it was fully searched by the CID officers. Copies of the photographs have been produced as Exhibit “P-2” for the prosecution. No further narcotics were discovered in the vehicle except for a partially open single marijuana seed found on the front passengers seat as per photograph 7. Both Viliamu and the defendant denied having any knowledge of the seed which was not noticed by the police officers when they pulled the vehicle over.
4. The defendant elected not to testify as is his constitutional right. And he has called no evidence in this matter and indeed asked no questions in cross-examination of the witnesses.
5. It seems from the evidence there are three possibilities. Firstly the narcotics belong to the owner or to the driver of the vehicle the defendant. Secondly they belong to his passenger Viliamu and the third possibility is they belong to someone else.
6. I will deal with each possibility in reverse order. Firstly that they may belong to someone else. I cannot accept that someone would deliberately leave such a significant and valuable quantity of illegal narcotics in the back of a taxi. I also do not accept it was dropped by accident unnoticed by a passenger. There is no evidence that any one came to the defendant looking for a missing plastic packet. The packet was not found in between seats or in some other unobvious space. The evidence shows it was sitting in plain sight on top of the blue floor mat on the floor in the back right hand side of the vehicle. Directly behind the drivers seat. It is easily visible from the outside and to anyone who gets into the back seat of the vehicle. I discount the possibility that it belongs to a third party.
7. The second possibility is the drugs belong to Viliamu the passenger. Viliamu denied knowledge of the drugs. And if they were his it seems a strange place to put the narcotics. They were not in his shopping or on his body or in close proximity to his person. Which is where you would expect someone carrying illegal narcotics to put them. Closest person to the narcotics was the defendant not Viliamu. The evidence does not support that these drugs possibly belong to Viliamu.
8. This leaves the last possibility that they belong to the defendant. Many factors support this argument. Firstly the defendant was the driver of the vehicle on the day in question. Secondly the narcotics were in plain sight and were located behind his seat. It is hard to believe he would be unaware they were in the back of his car. Furthermore the evidence of Viliamu was that it was the defendant who put Viliamus shopping into the back of the taxi. And the defendant placed it on the rear right hand side on the seat behind the drivers seat. The defendant therefore could not have failed to see the plastic packet on the floor. This is clear evidence the defendant was the last person to be in the vicinity of the narcotics before the police pulled the vehicle over.
9. For these reasons I am satisfied beyond reasonable doubt the narcotics were known to you to be in the back of your vehicle. That is enough to constitute the offence of possession of narcotics. And there is no dispute the substances were narcotics as per the SROS report exhibited as “P-1” for the prosecution.
10. I find Tapana the charge proven beyond reasonable doubt. Your proceedings are adjourned to the 4^th of May for probation report and for sentence. Ona o lea ua faamaonia le moliaga e faasaga i lau susuga Tapana e lua mea e manaomia. O le tulaga muamua e tatau ona faaauau pea lau saini pei ona iai i le taimi lenei e faatalitali ai le faaiuga i le aso 04 Me. Lona lua e tatau ona e alu i le aso e vaai le ofisa faanofo vaavaai. E iai le lipoti e aoga mo oe, aua le faatamala iai. Logo i le ofisa le aso lea ua tolopo iai lau mataupu ma logo iai o lea e tapa se latou lipoti mo lau mataupu. Ua manino tulaga ia? (Defendant said yes).
    

JUSTICE NELSON