Police v Aita [2015] WSSC 58 (5 June 2015)

IN THE SUPREME COURT OF SAMOA
Police v Aita [2015] WSSC 58

Case name:	Police v Aita
Citation:	[2015] WSSC 58
Decision date:	5 June 2015
Parties:	Police (prosecution) Andrew Patolo Aita (defendant)
Hearing date(s):	3 June 2015
File number(s):	S3821/2014, S3820/2014
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	Both charges were dismissed.
Representation:	O Tagaloa for prosecution Unrepresented
Catchwords:	Possession of Narcotics – Imprisonment term
Words and phrases:
Legislation cited:
Cases cited:	R v Jefferies
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ANDREW PATOLO AITA male of Salelologa
Accused in person

Counsel: O Tagaloa for prosecution
Unrepresented

Hearing: 3 June 2015

Ruling: 5 June 2015

RULING OF THE COURT

1. The accused was charged with possession of narcotics and with assault of a police officer. Both these offences were alleged to have been committed on the morning of the 17^th November 2014 at the Salelologa Market where the accused was arrested by several police officers. Both charges were denied by the accused.
2. At the conclusion of the defended hearing on the 3^rd June 2015, I dismissed both informations. The following constitute my reasons.

Prosecution Case

3. On the morning of the 17^th November 2014 some of the Tuasivi police officers travelled by police van to Salelologa to arrest the accused at the Salelologa Market. Arrest would be carried out on radio command from the team leader, or superior officer.
4. Those in the police van met up with another police car (Pol 23) at the Salelologa wharf. Officers Poasa and Pisa went from the police van to the police 23. Both vehicles then proceeded to the market, but to avoid suspicion police 23 kept its distance behind and patrolled a distance away from the market while the police van drove straight to the market. Both vehicles maintained radio contacts.
5. Constable Luteru Peseta (Luteru) who was travelling in the police van told the court the accused was arrested on suspicion of possession of drug. Arrest was made difficult by the relatively large crowd at the market and the aggressiveness of the accused. During the course of the arrest the accused punched police officer Matuu who was opening the car door. The managed to place the accused inside police 23 and drove away.
6. Before driving to the area of the market where the arrest was, the police officers in police car 23 met up with a third police car (Intel). Police officer Iakopo in the third police car told Poasa and others in police car 23 the accused’s name as the suspect and that the accused was sitting at the kava bowl area and he was carrying a bag containing narcotics around his neck. Iakopo also told Poasa and others to drive direct to the market where the police van was getting ready for the arrest.
7. Police officer Poasa told the court that he and officer Pisa walked to the area of arrest from the police 23 car. The arrest was made by officers Matu’u and Luteru. Poasa was about 5 meters away when the two arresting officers lifted up the accused and tried to pull him to the police car 23. He saw the accused struggling, trying to resist the arrest, but they managed to put him inside police 23 and drove away. While travelling in police 23 Poasa told the accused to hand over the items on him and thereupon the accused handed to Poasa the plastic bag from his pocket. Instead of going to Tuasivi police the accused was taken to the police post at Palauli. The plastic bag given to Poasa by the accused was then examined and found to contain 14 bullets of marijuana.
8. When questioned by Sergeant Meafou of the Palauli police post the accused claimed the plastic bag with the 14 joints of marijuana was not his. Accused was then taken to Tuasivi Police where at 12.24pm he was advised of his rights for the first time.

Discussion

9. When the accused elected not to call evidence I asked counsel for the prosecution as to the legality of the arrest as the so called team leader or superior officer who ordered the arrest and search of the accused did not testify. Counsel in response to questions from the bench said the police arrested the accused on information received from Intel.

Bench: Why was he arrested?

Counsel: Because the police received information from the Intel.

Bench: Which police received that information?

Counsel: That is Constable Poasa.

Counsel was of course referring to the time Constable Poasa and others in police car 23 were told by Police Officer Iakopo in the third police car of the identity of the accused. Intel was not explained to the court but is apparently a special branch of the police and it was obviously Police Officer Iakopo who was directing both the police car 23 and the van.

10. There is absolutely nothing in the evidence to suggest that the accused was observed being in possession of, or displaying or otherwise demonstrating that he was committing or attempting to commit an offence which would justify an arrest without a warrant.
11. Undoubtedly the police were relying on subsection 2 of section 14A Narcotics Act 1967 which authorises any constable to search and detain any person if the constable has reasonable ground for believing that any person is in possession of an narcotic and that any offence against the Narcotic Act has been or is suspected of having been committed. Police officer Iakopo who was directing the arrest was doing so from inside police car so that obviously someone else was at the market relaying messages to officer Iakopo. Whoever that person may be, only officer Iakopo knew. But officer Iakopo cannot be said to have had reasonable ground to believe that the accused was in possession of narcotic. There is nothing before the court to even suggest that the police took steps to verify the accuracy and reliability of the information received by officer Iakopo.
12. Instead of taking the accused to Tuasivi he was taken to the Palauli police post. No reason was given for doing so. He was not informed of the ground of his arrest. It was not until 12.24pm in the afternoon at the Tuasivi police that he was interviewed, advised of the grounds of his arrest and his right to counsel.
13. There was no urgency in the search and arrest of the accused. When the police van left Tuasivi police about 9am the officers knew they were on a mission to make an arrest at the market. The two officers who made the arrest were seen by Constable Poasa lifting the accused from where he was sitting at the kava bowl. Force was undoubtedly applied and the accused retaliated.
14. In my view the police activities before the arrest and during the arrest militate against the validity and reasonableness of the arrest. Reasonableness is to be assessed when the arrest is about to take place and as to the manner of the arrest. When reasonableness is to be assessed in cases of search or seizure was explained by Richardson J in R v Jefferies (1994) 1 NZLR 290 at 305:

“When in unreasonableness assessed?

It is implicit in the right to be secure against unreasonable search or seizure that reasonableness is to be assessed when the search is about to take place and then, as to the manner of the search, while it is actually taking place. The goal is to prevent unreasonable searches and to stop initially reasonable searches from becoming unreasonable because of the manner in which they are conducted. It is not legitimate to view searches with hindsight and justify them in the light of the results.

The assessment of the particular values underlying the right in the particular case and the balancing of those interests against the public interest in the carrying out of the search, have to be made as at the moment the search is to begin. Only in that way is there adequate focus on securing and vindicating individual rights on the one hand and recognising any imperatives of law enforcement on the other.”

15. As previously observed there is nothing before the court to indicate that neither officer Iakopo nor the police officers who made the arrest genuinely held a subjective belief as to the existence of reasonable grounds for belief. There was simply no evidence to harden suspicion into belief. Officer Iakopo entertained misapprehension as to his authority to arrest and search. The arrest cannot be characterized as reasonable. There was no statutory authority for the search. The test for reasonable grounds for belief was not met and is in my view the determinative factor in relation to reasonableness.
16. Real evidence was obtained during the search; fourteen bullets of marijuana were found on the body of the accused. But in my view the officers were reckless and deliberate in what they did. There was no urgency; it was not a situation where they had to act immediately. Exclusion of the evidence would not be disproportionate to the breach of the right of the accused.
17. In relation to the assault charge, the accused told the investigating officer he punched the officer in retaliation when he was punched during the arrest. That arrest is deemed unlawful, which follows the officer who was punched was not acting in the course of his duties.

Result

18. For the above reasons both charges were dismissed.

JUSTICE VAAI