Police v Misa [2016] WSSC 155 (31 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Misa [2016] WSSC 155

Case name:	Police v Misa
Citation:	[2016] WSSC 155
Decision date:	31 March 2016
Parties:	POLICE (Prosecution) SUITUPE MISA male of Malie. (First Defendant) and CATHERINE MAUALAIVAO SUITUPE female of Malie. (Second Defendant) and LOSALINA KOKO FAIFUA female of Malie. (Third Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	In relation to you Suitupe the court has found you guilty on two charges information S3445/14 possession of 23.9 grams of marijuana leaves and information S3443/14 possession of one hundred and seventeen (117) marijuana seeds. These are the narcotics I have referred to in this judgment as the ‘brick narcotics.’ All other charges in relation to you and all charges in relation to the second and third defendant Catherine and Rosalina are as outlined in the decision dismissed. For you Catherine and Koko you are free to go, please take a seat. Mo oe Suitupe e tatau ona saili se aso e fai ai se lipoti a le Ofisa Fa’anofo Va’ava’aia ma lau ai le fa’aiuga o moliaga lea ua fa’amaonia e fa’asaga ia oe. O lau mataupu lea o le a tolopo i le aso 13 o Aperila mo se fa’aiuga. O tulaga lea e tatala ai oe i tua e fa’aāuāu pea aemaise lou saini i le Ofisa o Leoleo. Ae tatau ona e o’o vave i le Ofisa Fa’anofo Va’ava’aia e tapena mai se lipoti mo oe, e aoga le lipoti lena mo oe, aua le fa’aletonu.
Representation:	F Ioane for prosecution S Ponifasio appeared on behalf of T Ponifasio for defendants
Catchwords:	Cultivation and possession – knowing possession – warrantless search
Words and phrases:	Attorney General v Fuaifale [2016] WSCA 3 R v Warner [1969] 2 AC, 256 R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 Police v Siaosi [2007] WSSC 9 Police v Chan Chui [2007] WSSC 72
Legislation cited:	Narcotics Act 1967
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SUITUPE MISA male of Malie..
First Defendant

AND:

CATHERINE MAUALAIVAO SUITUPE female of Malie.

Second Defendant

AND:

LOSALINA KOKO FAIFUA female of Malie.
Third Defendant

Counsel: F Ioane for prosecution
S Ponifasio appeared on behalf of T Ponifasio for defendants

Judgment: 31 March 2016

RULING OF NELSON J

The evidence

1. The charges against the defendants arise out of a police raid in the early morning hours of 04 July 2014 of a property belonging to the first and second defendant inland of Malie. There is no dispute the narcotics discovered during the raid are a Class B drug prohibited pursuant to the provisions of the Narcotics Act 1967. There is no dispute the property they were found upon belongs to the first and second defendant perhaps more accurately belongs to the second defendants family but was being worked by the first and second defendant couple. The third defendant is a friend of the second defendant and she was at the property at the relevant time to take care of the ill second defendant. What is disputed is the legality of the warrantless search carried out by the police and the chain of custody of the narcotics and bullets found during the search. The defendants also dispute that any of these items belong to them and they deny being in possession thereof as charged.
2. The police evidence is that in the afternoon of the day before the raid namely the 03^rd of July 2014 Lupe Mamapo a native of Malie and neighbour of the first and second defendant was searching for the pig that had damaged his taamu. Lupe wandered onto the couples land with his dogs and into their taamu plantation thinking he would find the offending animal there. He came across a faleo’o and a well defined track that led from a bushy area of the plantation directly to the faleo’o. To the immediate left of the track he noticed two paelos one white and one red sitting on pieces of timber. The paelo appeared to have marijuana growing in them. The red one contained one tall plant and the white one a number of small finger sized plants.
3. As a member of the village committee which enforces the laws of the village Lupe was familiar with what marijuana looks like. And he knew it was against village law to cultivate such a crop. In cross examination he elaborated that their committee had received reports of the first and second defendant being involved with marijuana. He said the couple had previously lived at Satapuala but had to leave because of such matters. They moved to Malie sometime in 2012 because the second defendant is from Malie.
4. As a result their committee had paid a visit to the couple to deliver to them a clear message concerning village regulations. But he denied that was the cause of his trespassing onto the couples property. He was adamant it was to track down the ta’amu thief. He said he also noticed that the pig had damaged some of the couples ta’amu plants. He refuted counsels repeated but groundless suggestion that he took paelos of marijuana onto the property and planted it on the land to implicate the first and second defendant.
5. He noted the track stopped by where the paelos were placed indicating to him it was a track specifically for the purpose of maintaining the plants. The distance from the location of the paelo to the faleo’o he gave as about 12 to 15 meters indicating it was from the witness box to the corner of the court room behind my bench which is not a very far distance. Because the area where the paelos were located was slightly bushy the paelos would not necessarily be visible from the faleo’o. In his testimony I recall he used the word “fa’apulouga” in reference to the area where the paelos were located.
6. To prove what he had discovered Lupe decided to take the white paelo with him. He returned to his land and rang committee member Auimatagi Saoloto a senior matai of the village. Informing him of what he had found. Later that evening members of the committee picked him up and they took the paelo to the Afega Police Post.
7. Lupes daughter Taualofa substantially corroborated her fathers evidence. That her father instructed her to hand over the white paelo to the police that evening; that she recognized the plants as marijuana because she has seen marijuana on TV; and that it was the police and the pulenuu who came and took the white paelo. There are differences as to detail between her evidence and that of the Police Inspector Norman Tuafale in charge of the Afega Police. But these are not major inconsistencies and are to be expected.
8. Auimatagi also confirmed Lupes evidence that the white paelo was handed over to the police that day. And when he offered the help of the village committee, the Inspector told him to leave the matter to the police to handle. Neither he nor Lupe knew of the early morning raid the next day so they did not participate. But he did see the white paelo at the Police Post on a subsequent occasion when he was there for other business.
9. I am satisfied from this evidence the two paelos were located on the land belonging to the first and second defendants. Further that the police properly assumed custody of the white paelo containing the thirteen (13) small marijuana plants. There was some difference of opinion as to the number of plants, some witnesses said twelve (12) some said thirteen (13). But that is of no consequence. The photographs show the plants were very small and it would be easy to miscount them.
10. I am also satisfied the police were justified in conducting a warrantless search of the land early the next day. Because Lupes action in removing one of the two paelos would have made it quickly apparent to the owner of the plants that someone knew their location. No doubt the concern of the police was that any other narcotics on the property would be immediately concealed, removed or disposed of. An early morning search was required before this could occur. In my opinion the search was fully justified pursuant to section 14(a) of the Narcotics Act 1967 for these reasons.
11. In any event the second defendants sworn evidence to the Court was she consented to the search after discussing the matter with Inspector Norman when the police arrived. This evidence is contained on page 7 of the transcript of her testimony. The challenge to the legality of the search accordingly fails.
12. As to the police raid, a large police party raided the land between 5:00 and 6:00 am on 04 July 2014. Many members of the police party were called as witnesses and gave this evidence. While some of their evidence was again conflicting in relation to detail the gist of it was that upon arrival Inspector Norman who led the raid informed the second defendant why they were there and what they proposed to do. The first defendant was not present because he works as a security guard and had left to attend to his duties at about 4:30 am.
13. A search of the faleo’o and surrounds was methodically carried out by the raiding party. Leading to the discovery of the red paelo with the single plant in the general area described by Lupe. Evidence showed the second defendant seemed surprised by discovery of the red paelo and claimed ignorance as to whom it belonged. That a search of the concrete living quarters of the couple revealed the marijuana leaves and seeds wrapped in a newspaper hidden in the bricks of a makeshift bed. And produced some shells from a suitcase under the front counter located at the front of the concrete building. A suitcase that also contained female underwear and clothing.
14. The evidence further was that these items were taken firstly to the Afega Police Post and then subsequently handed over to the police exhibits officer Senior Sergeant Efo Moalele and ballistics expert Sergeant Toddy Iosefo at Central Head Quarters, Apia.
15. There was evidence from the defendants the white paelo was brought onto the land by the police raiding party and was shown to the second and third defendants. But this was refuted by the police witnesses who maintained the white paelo stayed at the Afega Police Post where it was observed by a number of people and was only later shown to the defendants. In this regard I do not accept as accurate or reliable the evidence of a number of defence witnesses that the paelos were at the Police Post as early as late June 2014. Those witnesses were there for other matters and there is no reason why they would necessarily focus on the date of their complaints.
16. At the courts request the Police Occurrence Book for the relevant period from the Afega Post was produced. It has no record of such witnesses making complaints in either June or July 2014. The Book notes those witnesses and their complaint as having been lodged on 11 September 2014 many months later. What the Book also confirmed is the reporting to the police by Auimatagi on 03 July 2014 of marijuana being found on the first and second defendants land.

Defendants statements to the Police

17. All defendants were interviewed by the police and the first and third made cautioned statements. Second defendant refused to make or sign any statement. The first defendants statement was challenged by the defence on the basis that it was a fabrication. A voire dire was accordingly carried out.
18. The first defendant said initially he told the interviewing officer he did not wish to make a cautioned statement. But he was advised his second defendant wife had confessed to everything. He says he was therefore tricked into making a statement. Further that he made a statement to take the blame and to protect his wife.
19. He also testified that the so-called witnessing officer Corporal Margaret Roache was not present during his interview which is why her signature does not appear as a witness on the document. Her evidence should therefore be ignored. He argues the cautioned statement sought to be produced by the police was involuntarily and/or unfairly obtained given these circumstances.
20. At the voire dire the prosecution called the interviewing officer Constable Pu’a Gataivai and Corporal Roache. They said the first defendant was fully appraised of his rights, appeared to understand them and voluntarily agreed to make a cautioned statement. Corporal Roache testified she was present throughout most of the interview which was conducted at her desk where she was working on other matters. While she did not hear everything she heard the material parts namely the caution, the first defendants agreement to make a statement and his claim that the marijuana found in the brick house belonged to his workers and his taking and hiding it in the block-work under the bed. She also said she saw the first defendant read the cautioned statement after it was taken then sign it without coercion. She confirmed she was not asked by Constable Pu’a to sign as a witness and when she queried him about this subsequently he told her he simply forgot. She denied rehearsing her evidence with Constable Pu’a saying that if that was the case she would have remembered every single detail.
21. I indicated at the conclusion of the voire dire the cautioned statement would be admitted and my reasons would be given in due course. Essentially I preferred the evidence of the two police officers over the first defendant. Because it was far more credible. The first defendants assertion that he made a false statement in order to take the blame and to protect his wife suffers two major deficiencies.
22. Firstly, in the statement he does not take the blame. He does not say the brick narcotics, the plants and the shells are mine. In the statement he disclaims any knowledge of the paelo plants and says the brick narcotics were found in his workers faleo’o and therefore belonged to them. But he was keen to establish which one of them so he took custody of the narcotics pending enquiries with his workers. He says in his statement he found the narcotics in the faleo’o on Wednesday, 02 July 2014 while cleaning the faleo’o and fully intended to hand them to the police once he identified who the offending worker was.
23. As for the shells he said they are not his, he does not own a gun. He almost thanked the police at the end of his statement for their search because it uncovered these illegal substances in his house and on his land. In fact that is not so because according to his own evidence he discovered the marijuana and the seeds two days before the police raid.
24. The second reason why his argument rings hollow is because it is difficult to see how this supposedly false cautioned statement would protect or assist his wife. There is no evidence any promise or inducement was held out by the police to release his wife from custody or to confer on her some benefit if he made a statement. A further reason for rejecting his explanation is it is always dangerous to believe someone who admits to telling some “lies” and some “truths”.
25. I find the first defendant waived his duly advised constitutional right to silence and made a statement voluntarily to the police. Further that no law or requirement of practice was broken by the police in obtaining the statement and that no rule of fairness was breached in the process. Neither was Suitupe tricked into making and signing the document in eight different places. The cautioned statement is good admissible evidence against him.
26. The third defendants cautioned statement was not challenged. Which is no surprise as it contains no incriminating admission. And seeks to pin ownership of the illicit drugs on the plantation workers who are from or connected to the notorious drug haven of Faleatiu.

The ‘brick narcotics’: Informations S3443/14 and S3445/14

27. Information S3443/14 alleges possession of one hundred and seventeen (117) marijuana seeds wrapped in a piece of paper. S3445/14 alleges possession of “dried marijuana leaves securely wrapped in a piece of paper.” Senior Sergeant Efo Moalele’s evidence confirms the quantity to be 23.9 grams. And the leaves and seeds comprised the narcotics found hidden in the bricks of the makeshift bed in the concrete residence of the first and second defendant; which I have referred to as the ‘brick narcotics.’
28. The uncontested drug analysis report confirms the narcotics belong to the prohibited class B drug Cannabis Sativa L. It is convenient to deal with these two informations together and deal with them first as the evidence concerning them is relatively clear.
29. The police evidence is after discovery of the red paelo the police party proceeded to search the couples concrete residence. Photographs of the interior unfortunately only taken post raid on 25 September 2014 were produced. According to Inspector Norman there were more furnishings in the house on the day of the raid. In particular it appeared that the positioning of the relevant brick bed where the brick narcotics were discovered had changed. The bed was originally by the front entrance up against the wall.
30. The evidence of Constable Evile Etueni was he saw a newspaper jammed in between the concrete bricks supporting the wooden bed plank. He said he had no difficulty seeing that. He pulled it out and saw it contained the dry marijuana leaves and the hundred and seventeen (117) seeds. He reported it to Constable Sio Silver who was with him. The officers called the second defendant over and showed the drugs to her. They said she denied knowledge of them and implicated a co-defendant. Such implicatory evidence is of course inadmissible at law against a co-defendant who was not present at the time and will be ignored for the purposes of this proceeding.
31. The officers then handed the narcotics to Constable Misiluni Uesilē who was acting apparently for the first time as Exhibit Officer for the raid. A role he said he had no experience or training for but undertook because he was so instructed by his superior. After he recorded the narcotics and on return to Afega he handed them over to Constable Josie Papalii who testified that the next day 05 July 2014 the narcotics were delivered still wrapped in the newspaper to Senior Sergeant Moalele at the Apia Police Station. It was Sergeant Moalele who extracted samples from the narcotics which were sent duly marked and identified to the SROS Drug Lab for analysis as per normal procedure. As noted earlier the Drug Lab Report confirmed the nature of the substances to be prohibited narcotics.
32. All the raiding police officers vigorously refuted the once again unfounded defence suggestion that the narcotics were taken onto the land by the police and planted in the bricks. I am satisfied from this evidence as to the chain of custody of the narcotics as well as to the manner and place of their discovery. This evidence is consistent with the first defendants statement that he found the drugs in the faleo’o on Wednesday, 02 July 2014 and took them to his house “na ou alu ma a’u i luma i lo’u fale.”
33. It is also consistent with the sworn testimony of the third defendant who was present in the brick house at the time the narcotics were discovered. She said that is the house where Suitupe normally sleeps. On page 88 of the transcript of her evidence she was asked:

“Fesili: e le o Suitupe e moe i le faleo’o ma kama faigaluega?

Tali: leai, e iai le moega o Suitupe e moe ai i luga.

Fesili: o fea la e masani ona moe ai Suitupe, fale piliki poo le faleo’o?

Tali: fale piliki, leaga o Suitupe e usu i lana galuega, e o a la ma lona toalua e momoli i isi taeao pe a kuai ga usu.

Fesili: o le mau a le taulealea lea o Tavita na fa’apea mai, o latou e momoe ma Suitupe i le faleo’o pito i tai, o lea la sau oe mau i lea tulaga?

Tali: o lau mau lea e fai atu o le na, o lea na ou vaai iai.

Fesili: o le mau la a Tavita na faapea mai o latou e momoe ma Suitupe i le taimi atoa lea sa iai i o i le 2 vaiaso,

Tali: kailo ai la ia Kavika ma laga kali ou ke leiloa iai laga ia kali ga.”

This testimony seems to indicate quite clearly where Suitupe normally sleeps. It is contrary to the suggestion that Suitupe sleeps in the faleo’o with the workers.

34. In relation to the first defendant the real question that arises is whether I believe his claims that the narcotics belonged to one or more of his workers. Some of the workers were called by the prosecution. They included the 29 year old Enosa Enoka also known as ‘Gata’ who maintained he was only on the land for one night but could not recall when in 2014. I found him to be a very shifty nervous and apprehensive witness who appeared to be hiding something. Also called was the 17 year old Faifua Faifua who worked on the plantation for two weeks. He said he slept in the concrete house and the faleo’o was occupied by the older workers in particular the Faleatiu boys Gata, Vaa and Tavita. He said Gata left hurriedly on the Wednesday before the raid. Picked up in a taxi by a gentleman from Faleatiu named Ovaleni. According to the third defendant this particular gentleman has a bad reputation in the village. Also called was the 37 year old Tavita Segitofo who worked on the land for about two weeks. He was the one who said Suitupe usually sleeps with them at the faleo’o while the women occupy the concrete house. He confirms Suitupe leaves early in the morning for work and returns late in the evening.
35. Not surprisingly all the workers denied knowledge of any illicit narcotics on the land or in their possession. It appears from the evidence none of them were working or even present on the land the day of the police raid the Friday, 04 July 2014. The reasons for that are not entirely clear but I surmise they had completed their working contract that week and were perhaps due to come back at some other time.

Analysis:

36. I am of the view that I do not need to decide except perhaps for sentencing purposes whether the brick narcotics belonged to the first defendant or to his workers or belonged to someone else. I have no difficulty rejecting the last possibility. There is no evidence to support the suggestion these drugs were brought onto the land and planted in the bricks. That finding extends to the paelo plants as well. Similarly there are no credible grounds for believing that the witness Lupe planted the paelos or any other narcotics on the land of the first two defendants.
37. As to ownership of the brick narcotics it is not necessary in determining proof on a charge of possession to determine who owns the particular narcotics. It is sufficient to establish the illegal substances were in the actual physical custody or control of an accused in the knowledge of what he possessed coupled with an intention on his part to exercise control. Many cases establish this and it has recently been reaffirmed by our Court of Appeal in Attorney General v Fuaifale [2016] WSCA 3:

“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 an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and an intention to exercise possession. In the leading case of R v Warner [1969] 2 AC, 256, Lord Morris of Borth-y-Gest expressed it this way at p.289:

In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it (emphasis added).”

38. Police evidence establishes to my satisfaction these narcotics were found hidden in the bed of the first defendant. That is consistent with what is in his statement to the police made after caution. That shows he assumed and exercised physical custody and control over the narcotics.
39. I do not believe the first defendants claim that what he told the police was a fabrication in order to help his wife for the reasons given earlier. I am of the view what is in his cautioned statement is the truth. That he took possession of the narcotics probably after work on Wednesday, 02 July 2017 and held onto them pending an enquiry as to which of the workers they belonged. Because his workers were not present he kept them in the brick bed for the Thursday, 03 July 2014 resulting in their discovery by the police raid in the early hours of the next day Friday, 04 July 2014. Why he held on to them is immaterial. What is in issue is whether he had possession of the narcotics and intended to exercise control over them, knowing they were prohibited substances.
40. As noted by the New Zealand Court of Appeal in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 a case referred to by the Court of Appeal in Fuaifale:

“Possession and purpose are quite distinct matters........ The purpose for which the accused has the drug in his possession is not relevant to whether or not he is in possession of it. This follows from the very nature of possession as a legal concept......”

41. I am accordingly satisfied beyond reasonable doubt Suitupe had possession within those terms and on informations S3443/14 and S3445/14 I find him guilty as charged.
42. The position of the second and third defendant is less obvious. Perhaps I should say more problematic. The police case against the second defendant rests on the fact she is the owner of the land and an occupant of the concrete residence. And as the first defendants wife she should have known of the drugs. There is nothing directly linking her to the narcotics or to show she took any physical action in relation to the narcotics. In this regard two matters assume prominence.
43. Firstly the fact that the residence was the house occupied by the couple and is where they normally sleep. In this regard I do not accept the evidence of Inspector Norman that the second defendant Catherine occupied or slept in the faleo’o where she emerged from the morning of the police raid. It makes no sense a wife would sleep in the workers quarters while her husband and her young friend the third defendant slept in the concrete residence. There was no evidence the couple quarreled or a reason why she would sleep in the faleo’o, and on that particular night sleep alone in the faleo’o. There may be many explanations for her emerging from the faleo’o in the early morning hours. Perhaps she went to check if the workers were there or to check the faleo’o or to perform some other task. The Inspectors evidence was not that he found her actually sleeping in the faleo’o. His testimony was she emerged from the faleo’o when they arrived. I also do not discount the possibility that in the excitement of the drug raid and the moment the Inspector was mistaken about which building she came from.
44. Second important factor in assessing her culpability in relation to the brick narcotics is the time lapse between the discovery of the drugs and the raid. Accepting that I have found the cautioned statement of Suitupe to be the actual case and that the drugs were discovered by him the evening of Wednesday, 02 July 2014 while cleaning the faleo’o and that he took the drugs that night to the concrete building and placed them in the bricks under his bed. It is difficult to accept the second defendant wife was completely ignorant of the presence of the drugs. Or of the allegation that it belonged to the workers. More likely than not Suitupe would have discussed the matter with her. Especially in light of the fact that Ovaleni had come and taken Gata away hurriedly that particular day. Something that led her to visit the Afega Police Post for assistance, a fact that is recorded in the Police Occurrence Book produced to the court. But which came to nothing as Inspector Norman was not particularly enthused by her concerns.
45. I have therefore come to the conclusion she was well aware the narcotics were hidden in the bricks of her husbands bed. The issue is whether that makes her guilty of possession of the narcotics. The authorities on the mens rea requirement for possession show that something more than mere knowledge is required, namely there must also be evidence of an intent to exercise rights of physical custody or control, i.e. an intent to exercise possessory rights. This aspect is referred to in Cox, a case which also raised innocent purpose as a defence. As highlighted by the Court of Appeal in Fuaifale when discussing Cox the prosecution must prove an accused was knowingly in control of something “in circumstances which showed that he was assenting to being in control of it.”
46. I have come to the conclusion that this particular aspect has not been proven beyond reasonable doubt by the prosecution. They have not proven Catherine in fact exercised physical control over the narcotics or adduced evidence establishing beyond reasonable doubt she intended to exercise possessory rights over the brick narcotics. The inference to be drawn from the evidence is she was aware of the presence of the drugs and of her husbands suspicions but declined to interfere in the matter or take any action other than to raise her concerns with the Afega Police about the kidnapping “of Gata by Ovaleni.” It is correct she should have immediately reported the matter to the police as should have her husband. They would probably not be in court this afternoon if they had. But that does not make her guilty of possession of the brick narcotics.
47. In relation to S3443/14 and S3445/14 I find her not guilty.
48. As for the third defendant the evidence implicating her is even more tenuous. She came onto the land to nurse her sick friend. She seems to have been caught up in what subsequently occurred. A case of being in the wrong place at the wrong time. Her mere presence on the land is insufficient. There is no evidence she had custody or any sort of control over the brick narcotics or tried to assert any custody or control. She may have known they were there but as noted that is not enough. She too must be found not guilty of possession of the brick narcotics.

The paelo plants: Informations S2021/14 and S3444/14

49. I move on to informations S2021/14 cultivation of the fourteen (14) marijuana plants and S3444/14 possession of the fourteen (14) marijuana plants I propose to deal with them together.
50. It is not necessary to rehash the prosecution evidence of Lupe Mamapo and the other witnesses. There were numerous inconsistencies upon various matters. For example whether the paelos were sitting on pieces of timber or on the ground; the exact location of the red paelo as per the photographs; when exactly the K-9 drug dog was brought into the picture; the location of the esi tree in relation to the track to the faleo’o and other such things. But the essential prosecution evidence remains intact, namely that the marijuana was being cultivated in close proximity to the faleo’o as evidenced by the clearly marked track from where the paelos were to the building. That Lupe stumbled across the paelos and removed the white one with the thirteen (13) small plants leaving the red one with the one taller single plant; that the police raid discovered the red paelo; that the defendants disclaimed all knowledge of the paelos; that the red paelo was taken back to the Afega Police Post where the white one had been stored in Inspector Normans office where such things are kept in the absence of a proper storage facility at the Police Post. Not a practice to be encouraged. And that subsequently the plants were transported to Apia on 05 July 2014, the day after the raid, where they were received tagged and sent for analysis by Senior Sergeant Moalele and the results of the analysis confirming the plants were marijuana.
51. The question however remains who was cultivating the plants and does the evidence establish possession by the defendants beyond reasonable doubt. Prosecution argue that because the plants were found in the first and second defendants plantation this is prima facie proof of cultivation and possession. And because the second and third defendants work the plantation they must be taken to have knowledge of the plants. Further that Catherines emergence from the faleo’o the morning of the raid establishes she knew of the nearby growing plants.
52. I agree with the prosecution having such plants in ones plantation is prima facie evidence of cultivation and possession. At least in respect of the first two defendants. But as made clear in authorities on point such as Police v Siaosi [2007] WSSC 9 and Police v Chan Chui [2007] WSSC 72 this presumption can be rebutted by evidence to the contrary.
53. Here there is in my respectful assessment evidence from which inferences can be drawn to the contrary. Firstly the cautioned statement of the first defendant which is relied upon by the prosecution as a corner-stone of their case. That suggests the plants belonged to the workers who occupied and slept in the faleo’o. Secondly there is the mysterious and hurried disappearance of Gata, one of the key workers, the day Lupe discovered the paelos. Did he had some warning or inkling of what was to happen? It smacks very much of a perpetrator leaving the scene of the crime.
54. The evidence also indicates the first defendant seems to have played a subsidiary perhaps weekender only role in working the plantation. The prosecution did not dispute the evidence that he was at all material times in full-time employment as a security guard and that he normally left the property early in the morning before day break returning late at night. If there was work to be done during the day on the plantation it would have been carried out by the workers and the second defendant. This suggests the couple played merely a supervisory or “fa’atonutonu” role, it was the workers that did all the day to day chores and work on the plantation property.
55. Further there is the existence of the well worn track from the faleo’o to the paelos location. The plan of the scene shows the faleo’o is located approximately 180 meters from the concrete residence of the first and second defendant. The evidence also is clear that the track led directly to the faleo’o and further that the faleo’o was lived in and occupied by the workers. A consideration of the photographs of the areas around the residence compared to the areas around the faleo’o seems to indicate alot of the gardens are set around the concrete residence and the immediate surrounding area. Not so much the faleo’o. It is difficult to pinpoint because the photographs as observed were taken months after the raid occurred. Good photographs on the day of the raid may well have clarified the situation.
56. Looking at the totality of the evidence, I am not satisfied it establishes beyond reasonable doubt the defendants or any of them were responsible for cultivating the plants or can be said to have been in possession of the paelo plants. The evidence is thin against the first and second defendant; it is almost non-existent as against the third defendant.
57. I have a reasonable doubt on the matter, all defendants are accordingly found not guilty of cultivation and possession of the plants grown in the two paelos.

The bullets: Information S2204/14

58. The final charge information S2204/14 relates to knowing possession of two bullets. These are said to have been discovered in the corner of a small red case within a larger black suitcase which was under the front counter of the concrete residence. That was where they were found by Constable Fetuliaina Mulitalo. She said the suitcase also contained female clothing and underwear suggesting the owner was therefore either the second or the third defendant. Neither of these defendants admitted to ownership of the suitcase. It appears they were not even questioned on the matter by the police, nor was any evidence called by the prosecution to establish who owned the suitcase and its contents.
59. Constable Mulitalos evidence was she passed the shells to Constable Misiluni who recorded it and turned the ammunition over to Constable Josie Papalii. Constable Papalii used the shells in the interview of the second defendant and then stored them with the narcotics discovered in the raid in the room of their inspector in charge, Inspector Norman. Her further testimony was that on Saturday, 05 July 2014 these were delivered to Sergeant Moalele at Apia. It was Sergeant Moalele who tagged the exhibits and marked them for the first time and then took the photographs produced as Exhibit “P-2.” Significantly there were no photographs of the bullets.
60. The Senior Sergeants evidence was she was not given the bullets. She said possibly they were delivered directly to the ballistics officer Sergeant Iosefo. She is right Sergeant Iosefo said he received the two bullets. But he said he only received them some ten (10) days later on 15 July 2014. And that he received them not from Constable Papalii but from Constable Sio Sapa’u. Constable Sapa’us evidence was he only received the shells from Constable Papalii sometime during the morning of 15 July 2014. In cross examination he denied receiving the shells on 05 July 2014. He said they were given to him on 15 July 2014 and were inside a small plastic shopping bag. Further that they were not accompanied by any narcotics. That he drove around doing various errands during the day and sometime in the afternoon dropped them off to the ballistics officer.
61. Quite apart from the contradiction with the evidence of Constable Papalii the question arising is where were the bullets for the period 05 July 2014 to 15 July 2014? Presumably they were in the Inspectors office at Afega, but there was no evidence to that effect. If they were stored there, under what conditions were they stored as to their security or otherwise?
62. It is also clear from the evidence the bullets were not marked or properly tagged. The way they were casually treated by the police is nothing short of unbelievable. There is no question there has been a glaring break in the chain of custody.
63. This was not the only problem with the ballistics evidence. Constable Mulitalo who discovered the shells could not initially recall details such as their colour. The evidence of the ballistics expert left much to be desired. Witness the obvious differences in the colour between the photographs of the ammunition attached to his report Exhibit “P-8” and the actual bullets “P-6” and “P-7.” Witness also his misdescription of the markings on P-6 as “XP” when in fact it is “+P.” As a ballistic expert I was surprised by his lack of understanding of the technical significance of such markings and what they denote.
64. The court cannot be expected to rely on such poor quality expert evidence. Given the break in the chain of custody evidence I cannot safely assume the bullets produced are the bullets recovered by this inexperienced and poorly documentative raiding party. Coupled with the lack of evidence identifying the owner of the suitcase and its contents, there is grossly inadequate proof of any sort the defendants or any of them were on 04 July 2014 in knowing possession of two (2) .38 SPL ammunition. The defendants are also found not guilty on that charge as well.

Summary

65. In relation to you Suitupe the court has found you guilty on two charges information S3445/14 possession of 23.9 grams of marijuana leaves and information S3443/14 possession of one hundred and seventeen (117) marijuana seeds. These are the narcotics I have referred to in this judgment as the ‘brick narcotics.’ All other charges in relation to you and all charges in relation to the second and third defendant Catherine and Rosalina are as outlined in the decision dismissed. For you Catherine and Koko you are free to go, please take a seat.
66. Mo oe Suitupe e tatau ona saili se aso e fai ai se lipoti a le Ofisa Fa’anofo Va’ava’aia ma lau ai le fa’aiuga o moliaga lea ua fa’amaonia e fa’asaga ia oe. O lau mataupu lea o le a tolopo i le aso 13 o Aperila mo se fa’aiuga. O tulaga lea e tatala ai oe i tua e fa’aāuāu pea aemaise lou saini i le Ofisa o Leoleo. Ae tatau ona e o’o vave i le Ofisa Fa’anofo Va’ava’aia e tapena mai se lipoti mo oe, e aoga le lipoti lena mo oe, aua le fa’aletonu.
67. I would only add for the record of this ruling that this case suffers from many deficiencies stemming from the manner in which the Police drug raid was carried out. The use of inexperienced officers in key positions; the lack of forensic personnel in the search party; inadequacy of photos taken during the raid and the poor documenting and preservation of exhibits recovered. These are matters the Afega Police should give serious consideration to for the future.

JUSTICE NELSON