Police v Ofoia [2015] WSSC 67 (24 July 2015)

SURPEME COURT OF SAMOA
Police v Ofoia [2015] WSSC 67

Case name:	Police v Ofoia
Citation:	[2015] WSSC 67
Decision date:	24 July 2015
Parties:	POLICE (prosecution) v TUPUONO OFOIA (accused) male of Falefa and Salani, Falealili.
Hearing date(s):
File number(s):	S399/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The charge against the accused to have been proved beyond reasonable doubt.
Representation:	R Titi for prosecution Accused in person
Catchwords:	Possession of narcotics –– physical and the mental elements of the charge of narcotics – no acceptable evidence to the contrary to displace that inference – proved beyond reasonable doubt
Words and phrases:
Legislation cited:	Narcotics Act 1967to s.7
Cases cited:	Police v Chan Chui [2007] WSSC 72 Police v Leuluaialii [2006] WSSC 50. R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 at p.278 by Hardie Boys J
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S399/15

BETWEEN

P O L I C E
Prosecution

A N D

TUPUONO OFOIA male of Falefa and Salani, Falealili.
Accused

Counsel:
R Titi for prosecution
Accused in person

Judgment: 24 July 2015

JUDGMENT OF SAPOLU CJ

The charge

1. The accused pleaded not guilty and stood trial on one charge of possession of narcotics, namely, one and a half marijuana joints, contrary to s.7 of the Narcotics Act 1967. The charge possession of narcotics consists of two elements which the prosecution must prove beyond reasonable doubt. As explained in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 at p.278 by Hardie Boys J in delivering the judgment of the New Zealand Court of Appeal:
   • “Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of awareness by the accused that the substances are in his possession (which is often to be inferred or presumed); and an intention to exercise possession”.
2. The above passage from R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 at p.278 was applied in Police v Chan Chui [2007] WSSC 72 and Police v Leuluaialii [2006] WSSC 50.

The evidence

3. In the afternoon of 6 January 2015, some one called the Apia police that the driver of a yellow bus travelling from Motootua to Apia was selling marijuana to passengers inside the bus. Police officers quickly went to Beach Road in front of the police headquarters to wait for the bus. When the police officers saw the bus coming, they signalled to the busdriver, who is the accused in this case, to stop and move the bus to the side of the road. When the bus stopped on the side of the road, the six passengers inside the bus came out and the police instructed the accused to take the bus and park it at the car park next to the police station.
4. The police then searched the accused but found no marijuana substances on him. The police then searched the inside of the bus. When Constable Tuifao Luatua found a tray under the busdriver’s seat, he pulled it out. The tray contained, amongst other items, one marijuana joint and a half marijuana joint. Corporal Aasa Afoa and constable Tuifao Luatua testified that when the marijuana joints were shown to the accused, he said they were given to him by a passenger. The police then took the marijuana joints which were kept inside their exhibits room.
5. Samples from the two marijuana joints were subsequently taken by the police to the Scientific Research Organisation of Samoa (SROS) for scientific tests. Phillip Reti, the scientist who conducted the tests, gave evidence as a witness for the prosecution that he tests revealed that the samples contained resin and were cannabis plant material.

The evidence by the accused

6. The accused in his evidence denied that he said to the police officers that the marijuana substances found in the tray under his busdriver’s seat were given to him by a passage. He said that what he told the police officers was that perhaps it was a passenger who put marijuana joints in the tray under his busdriver’s seat but the police officers must have misheard what he said to them. I have decided to accept the evidence of the police officers about they said the accused said to them. I see no reason why corporal Aasa Afoa and constable Tuifao Luatua should be mistaken about what the accused had said to them in relation to the marijuana joints.
7. When questioned in relation to his evidence in chief, the accused said that when he finishes work for the day, he takes the bus to the depot of the owner in Apia. When he returns to work in the morning, he drives the bus on its normal route in the town area. When asked whether there was any time on the day in question that he knew of a passenger putting the marijuana joints in the tray under his busdriver’s seat, he said no. When he was asked whether there was any time during the day in question that he left the bus, he said it was at the bus depot near the flea Market at Savalalo when he went to the gents. When he was further asked whether there were any passengers inside the bus when he went to the gents, he said no. It follows from these questions and the accused’s answers that if a passenger had put the joints in the tray under the busdriver’s seat of the accused, it must have been at the time the accused was inside the bus sitting in the busdriver’s seat. That is because at the only time that the accused left the bus to go to the gents, there were no passengers inside the bus.
8. The accused’s explanation is that there is a passenger’s seat behind the busdriver’s seat. A passenger who occupies that passenger’s seat could have reached down from behind to the tray under the busdriver’s seat, pull it out, put the marijuana joints in the tray, and push the tray back under the busdriver’s seat without him knowing about it. I must say that I find the accused’s explanation so unreal that I have decided to disbelieve. It is an unrealistic possibility. Why should a passenger sitting behind the busdriver’s seat reach down from behind to the tray under the busdriver’s seat, pull it out, put the marijuana joints in it, and push the tray back under the busdriver’s seat? How would such a passenger know of the tray under the busdriver’s seat? What benefit would such a passenger have gained from putting marijuana in the tray? One would have thought that if anyone knew of the tray under the busdriver’s seat or had an interest in it; it would be the accused himself as busdriver. It is unlikely for a passenger to know about the tray or have any interest in it. There is also no evidence of any motive for a passenger to do such a thing as putting marijuana joints in the tray under the busdriver’s seat and run the risk of being charged with possession of narcotics if caught. It is also somewhat difficult to accept that a passenger sitting in the passenger’s seat behind the busdriver’s seat could put the marijuana joints in the tray under the busdriver’s seat without the accused knowing about it. I find the accused’s explanation totally unacceptable.

Discussion

9. In the circumstances in which the marijuana joints were found in the tray under the busdriver’s seat, I am satisfied following R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 that the accused was in physical custody or control of those marijuana joints. The presence of the marijuana joints in the tray under the busdriver’s seat also gives rise to the inference that the accused had knowledge of those joints and the intention to exercise control over them. There is no acceptable evidence to the contrary to displace that inference. I therefore find that the accused had knowledge of the marijuana joints and the intention to exercise control over them. See Police v Chan Chui [2007] WSSC 72. Both the physical and the mental elements of the charge of possession of narcotics have therefore been established.

Result

10. I find the charge against the accused to have been proved beyond reasonable doubt.
    

CHIEF JUSTICE SAPOLU