Police v Seleue [2016] WSSC 3 (3 February 2016)

IN THE SUPREME COURT OF SAMOA
Police v Seleue [2016] WSSC 3

Case name:	Police v Seleue
Citation:	[2016] WSSC 3
Decision date:	3 February 2016
Parties:	POLICE v SAPATI AFEMALETA SELEUE male of Fasitoo-tai and Tanumalala
Hearing date(s):	6 February 2015, 24 March 2015, 29 May, 12 June 2015
File number(s):	S2237/14, S22240/14-S2242/14, S2151/14-S2153/14
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- For the foregoing reasons, the two charges of possession and the one charge of cultivation against Sapati are dismissed.
Representation:	F Lagaaia for prosecution L R Schuster for accused
Catchwords:	Possession – cultivation
Words and phrases:
Legislation cited:	Narcotics Act 2013 s.6 (b), s.7
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S2237/14, S22240/14-S2242/14, S2151/14-S2153/14

BETWEEN

P O L I C E

Prosecution

A N D

SAPATI AFEMALETA SELEUE male of Fasitoo-tai and Tanumalala.

Accused

Counsel:
F Lagaaia for prosecution
L R Schuster for accused

Hearing: 6 February 2015, 24 March 2015, 29 May, 12 June 2015

Judgment: 3 July 2015

Reasons for Judgment: 3 February 2016

REASONS FOR JUDGMENT

Introduction

1. I make no apologies for the delay in giving my reasons for this judgment. The order in which the evidence for the prosecution came out did not follow the sequence of events that occurred at Tanumalala. Witnesses in relation to the police search at Tanumalala were called out of order. Parts of the evidence in relation to the Tanumalala search were also vague, inconsistent and even confusing. It has made it so difficult to follow the evidence of the police search at Tanumalala.
2. There were two police search parties in this case. One went to Fasitoo-tai to search the house of the accused for marijuana, the other went to Tanumalala where marijuana was reported to be grown. The two police search parties subsequently met up at Tanumalala.
3. I will refer first to the charges against the accused. I will then set out the evidence adduced by the prosecution in relation to the police search of the accused’s house at Fasitoo-tai and then the evidence adduced by the prosecution in relation to the police search at Tanumalala except for the evidence of the prosecution witness Falaniko Hunt. I will then refer to the evidence given by the accused, the defence witness Iuliano Titi, and the prosecution witness Falaniko Hunt.
4. I will then discuss the evidence before arriving at my conclusion.

The charges

5. The accused stood trial on one individual charge of possession of marijuana seeds contrary to s.6 (b) of the Narcotics Act 2013, and one individual charge of being in possession of one marijuana joint contrary to s.7 of the Act. He also stood trial on one joint charge with which he was charged with the defence witness Iuliano Titi (Iuliano) with cultivation of marijuana plants contrary to s.6 (a). Iuliano had pleaded guilty to that charge and has been sentenced to prison.

The police search of the accused’s house at Fasitoo-tai according to the police witnesses

6. In the early hours of Thursday morning 10 July 2014, a team of police officers assembled at the Faleata police post for briefings on a search to be carried out that same morning of the accused’s house at Fasitoo-tai for marijuana and a search to be carried out at Tanumalala where marijuana was reported to be grown. About 5:30am before daybreak, the two search parties departed from Apia for their respective destinations.
7. Amongst the police officers in the search party that went to the accused’s house at Fasitoo-tai were sergeant Erika Utumapu (sergeant Utumapu) as leader, constable Fereti Sefo (constable Sefo), constable Vainuupo Papalii (constable Papalii), and constable Asueru Tiumalu (constable Tiumalu). The police arrived at the accused’s house at the first sign of daybreak. It is a small Samoan thatched roof house with a small lean to at the back. When the police arrived, the accused appeared to them to have just woken up. Sergeant Utumapu showed and explained to the accused the search warrant the police had with them and also informed him of the purpose of the police visit to his place.
8. According to the evidence of sergeant Utumapu, the police were well received by the accused who also said to the police that no one will interfere with their search of his house. The police then proceeded to search the accused’s house. Soon after the search started, constable Sefo found a used red packet of pall mall cigarette containing one marijuana joint between some of the thatches of the roof of the accused’s house. This was handed to sergeant Utumapu who called the accused over. Sergeant Utumapu testified that he then showed the accused the packet of pall mall containing the marijuana joint and informed the accused of his right to silence and his right to counsel but the accused replied it was alright (e le afaina) and for the police to continue with their work.
9. A short time afterwards, constable Sefo again found marijuana seeds wrapped in a piece of newspaper between other thatches of the roof of the accused’s house. These marijuana seeds were also handed to sergeant Utumapu who testified that he showed the marijuana seeds to the accused and informed the accused of his rights. The police search then continued. The accused’s car was also searched but the police did not find any marijuana in the car. Constable Papalii then found a backpack (ato fa’afafa) hanging from the interior left side of the accused’s house. When he opened this backpack he found in it a bottle with a pink top. Inside this bottle were marijuana seeds wrapped in a piece of newspaper, cabbage seeds, and pesticide particles for killing snails. The backpack with its contents was then handed to sergeant Utumapu who called over the accused and showed him the bag and its contents. Again, sergeant Utumapu informed the accused of his rights but there was no indication from the accused that he wanted to exercise any of his rights. This concluded the search of the accused’s house at Fasitoo-tai according to the evidence of sergeant Utumapu.
10. Because of the large number of marijuana seeds found at the accused’s house, the police had no time to count them at the time of the search. But all the marijuana substances were given to the custody of constable Tiumalu as the exhibits officer for the search. A subsequent count at the Apia police station revealed there were 2,252 marijuana seeds.
11. During the whole of the evidence of sergeant Utumapu, he never said that he asked the accused as to who owns the marijuana substances found at his house or that the accused admitted to him that he is the owner of those substances. One would have thought that if such an admission was made by the accused, a senior police officer like sergeant Utumapu would have mentioned it in his evidence. But it was not. Sergeant Utumapu also never said in his evidence that the accused admitted to him that the backpack found in his house belonged to him.
12. Constable Sefo in his evidence testified that he found a red packet of pall mall cigarette containing one marijuana joint between some of the thatches of the roof of the accused’s house. He then gave the packet of pall mall containing the one marijuana joint to constable Tiumalu the exhibits officer who handed it over to sergeant Utumapu. The accused was then called over and sergeant Utumapu showed him the packet of pall mall and the marijuana joint. Constable Sefo said that he does not know whether sergeant Utumapu at that time informed the accused of his right to silence or his right to counsel. He also did not mention in his evidence whether sergeant Utumapu asked the accused as to who owns that marijuana joint or that the accused said that the marijuana joint belongs to him.
13. Constable Papalii, another police officer at the search of the accused’s house, testified that he found a backpack hanging from the interior left side of the accused’s house and when he took it down and opened it, he found a bottle with a pink top. When he opened the bottle, he found in it marijuana seeds wrapped in a piece of newspaper, cabbage seeds, and pesticide particles for killing snails. He then handed the backpack to their leader sergeant Utumapu who showed the backpack and its contents to the accused. Constable Papalii said that the accused admitted to sergeant Utumapu that the backpack belongs to him and it is his working backpack. Constable Papalii further said that at that time constable Tiumalu who was the exhibits officer was present but he could not remember whether constable Sefo was also present. Constable Papalii did not mention that sergeant Utumapu informed the accused of his rights.
14. Constable Tiumalu in his evidence confirmed that constable Sefo found a red packet of pall mall containing one marijuana joint and marijuana seeds wrapped in a piece of newspaper between the thatches of the roof of the accused’s house. He also confirmed that constable Papalii found the backpack which contained a bottle with a pink top. Inside the bottle were marijuana seeds wrapped in a newspaper.
15. Constable Tiumalu also said that when the packet of pall mall containing a marijuana joint was shown to the accused he “fully agreed to it” (na ioe atoatoa iai) and a photo was taken by the police forensic of the packet of pall mall. The police search then continued. When the marijuana seeds wrapped in a newspaper were shown by sergeant Utumapu to the accused, the accused also “fully agreed to it” (na ioe atoatoa iai) and said they belong to him. A photo of the marijuana seeds was then taken by the police forensic. When the marijuana seeds found in the bottle that was inside the backpack was shown by sergeant Utumapu to the accused, the accused nodded his head (luelue lona ulu) and said for the police to continue their work. A photo of those marijuana seeds was also taken by the police forensic. All these photos were produced in evidence by the prosecution as exhibits.
16. Under cross examination by defence counsel, constable Tiumalu said when the marijuana substances were shown by sergeant Utumapu to the accused, the accused simply nodded his head (luelue lona ulu) and said for the police to continue with their work. When defence counsel further put to constable Tiumalu that there was nothing else said by sergeant Utumapu to the accused, constable Tiumalu replied there was none. Defence counsel then put the following questions to constable Tiumalu as shown in p.46 of the transcript of the evidence:
    • Q. And there was no question whether these marijuana substances belong to him (accused)?
    • A. With respect, the sergeant informed him (accused) at the time these substances were found. His answer was simply to nod his head and said to continue with our work.
    • Q. Listen to the question I am asking you, there was no question put to Sapati (accused) as to who owned these substances?
    • A. That is so.
17. In the re-examination of constable Tiumalu by counsel for the prosecution, the following questions and answers appear in p.46 of the transcript of the evidence:
    • Q. At the time, did you hear what Erika (sergeant Utumapu) was saying to Sapati (accused)?
    • A. I heard that the sergeant showed the accused and informed him about the substances that had been found in our search. I also heard the sergeant informed the accused of his rights.
    • Q. Did you hear Sapati giving an answer to those questions?
    • A. To some questions he answered, and his answer was continue with our work. To other questions by the sergeant he simply nodded his head and said to continue with our work.
18. The following question by the Court and the answer by the accused then appear at the same page of the transcript:
    • Q. What was your interpretation of the nodding of Sapati’s head? What did it mean to you?
    • A. He was asked by the sergeant. I saw the accused was sitting down and his only action was to nod his head and smile and he said to continue with our work. To my observation, he had his full agreement with the work we were carrying out.
19. Even though constable Tiumalu in his evidence in chief said that the accused admitted to sergeant Utumapu that the marijuana seeds found by constable Sefo between the thatches of the accused’s house belong to him, this does not appear from the answers given by constable Tiumalu to questions put to him under cross examination and during re-examination. He did not repeat in any of his answers to the questions put to him during cross examination and re-examination what he had said in his evidence in chief that the accused admitted to sergeant Utumapu that the marijuana seeds found by constable Sefo belonged to him. In fact the answers constable Tiumalu gave under cross examination and re-examination appear to be inconsistent with what he had said in his evidence in chief that the accused admitted to sergeant Utumapu that the marijuana seeds found by constable Sefo belong to him. It would be recalled that sergeant Utumapu himself never said in his evidence that the accused admitted to him that he owns the marijuana seeds. It would also be recalled that constable Papalii who found the backpack and handed it to sergeant Utumapu only testified that when sergeant Utumapu showed the backpack to Sapati he only admitted that the backpack belongs to him. There was no mention in constable Papalii’s evidence that Sapati admitted to sergeant Utumapu that the marijuana seeds which were found in the backpack also belong to him.
20. According to the evidence of sergeant Efo Moalele (sergeant Moalele) who obtained a caution statement from Sapati later the same day, Sapati did admit that the marijuana substances found by the police in his house belonged to him.
21. After the search of the accused’s house at Fasitoo-tai, the police took the accused with them in one of the police vehicles to Tanumalala where the other police search party was conducting a different search for marijuana plants.

The police search at Tanumalala according to the police witnesses

22. Before the police search parties left Apia in the early hours of Thursday morning 10 July 2014 for the accused’s house at Fasitoo-tai and for Tanumalala where marijuana was reported to be grown, an advanced team of police officers armed with rifles had already left for Tanumalala to ensure that the scene of the suspected offending at Tanumalala was safe for the search party that will follow. This is now permissible police procedure because of the dangers that the police had often encountered in similar searches in the past where cultivators of large numbers of marijuana plants were often armed with firearms.
23. For clarity and ease of understanding, the police search party that went to Tanumalala appears from the evidence of constable Malaitai Lilomaiava (constable Lilomaiava) to have consisted of three groups of police officers. The first group of police officers was the advanced team of police officers armed with rifles who left first to secure the scene of the suspected offending before the second and third groups of officers arrived. This advanced team of officers included sergeant Esau Poe (sergeant Esau) who was mentioned in the evidence of some of the prosecution witnesses and other police officers. None of the police officers who was in the advanced team was called as a witness by the prosecution.
24. The second group of police officers as it appears from the evidence of constable Lilomaiava included senior constable Viane Faletoese (constable Faletoese), constable Maauga, and constable Lilomaiava himself. This second group of officers arrived at the scene of the suspected offending after the advanced team of officers had arrived but before the third group of officers arrived. The third group of officers included inspector Leiataua Samuelu Afamasaga (inspector Afamasaga) who was the leader of this whole police operation and other police officers. This third group of officers were the last group of the Tanumalala police search party to arrive at the scene.
25. As none of the police officers who were in the first group making up the advanced team of officers was called as a witness by the prosecution, I will start with the evidence of the police officers who were in the second group. According to the evidence of constable Faletoese, when he and the second group of officers arrived at Tanumalala in the early hours of Thursday morning 10 July 2014, they found a man with a bad eye (mataivi) mentioned in the evidence of other officers as the defence witness Iuliano Titi (Iuliano) and two men with shaved heads (ulupoo) being held by some of the other police officers. These other police officers appear to have been members of the first group of police officers led by sergeant Esau who were armed. The man with the bad eye and the two men with shaved heads showed the police the first block of marijuana plants. Small and large marijuana plants were growing in that block. It appears from the evidence of constable Faletoese that there were six blocks of marijuana plants. This seems inconsistent with the evidence of inspector Afamasaga that there was only one marijuana plantation and there was not a first or a second block of marijuana but only one block of marijuana.
26. Constable Faletoese said that it was sergeant Esau who first asked the man with the bad eye who owns these marijuana plants and the man with the bad eye replied it is him and the man in the dock. Constable Faletoese , however,could not remember the name of the man in the dock. It is unusual for a police officer called as a witness not to remember the name of an accused. Constable Faletoese also said that at that time when sergeant Esau asked the man with a bad eye, inspector Afamasaga and other officers with him had not arrived on the scene. The evidence by constable Faletoese that it was sergeant Esau who first asked the man with the bad eye as to who owns the marijuana plants is inconsistent with the evidence given by inspector Afamasaga that he was the first police officer who asked Iuliano, the man with the bad eye, who owns the marijuana plants.
27. Constable Faletoese further said that when inspector Afamasaga and the man from Fasitoo-tai later arrived, inspector Afamasaga asked the man from Fasitoo-tai as to who owns the marijuana plants, this man from Fasitoo-tai replied that it was him and the man with the bad eye who own the marijuana plants but it is the man with the bad eye who looks after the plants.
28. Constable Faletoese also said that he uprooted twenty four plants from the first block and four moderate plants from the second block together with a large number of small plants. This second block appeared to be a nursery. In total, constable Faletoese said he uprooted twenty eight large plants. These were noted down by corporal Edmund Masoe who was the exhibits officer.
29. According to the evidence of constable Lilomaiava, when he arrived at Tanumalala with other police officers, he saw Iuliano, the man with a bad eye, being held by sergeant Esau and other police officers. He and another police officer were then assigned to look after Iuliano. The police were then shown by Iuliano to the back of land where marijuana plants were grown. Constable Lilomaiava said he saw two blocks where marijuana plants were grown. Plants of about three to four feet were growing in one block (the first block) while very small marijuana plants were growing on another block (the second block). When they stopped at the first block with the large marijuana plants, sergeant Esau asked Iuliano as to who owns these plants and Iuliano replied it is him. When sergeant Esau asked what about Sapati (the accused), Iuliano replied it is their plantation of marijuana plants with Sapati. At that time, inspector Afamsaga and other police officers had not arrived. When inspector Afamasaga arrived, he also asked Iuliano as to who owns the marijuana plants. Iuliano replied they were his and Sapati’s marijuana. At the same time, there were five or six police officers armed with rifles present for the protection of the police search party.
30. Constable Lilomaiava and other police officers then uprooted the marijuana plants. There were about one hundred fifty to two hundred plants. Constable Lilomaiava could not recall whether there were any police exhibits officers who recorded and kept the marijuana plants as exhibits.
31. According to the evidence of corporal Edmund Masoe (corporal Masoe) who was in the same group as inspector Afamasaga, when they arrived at the small hut at the scene at Tanumalala, they found a man with a bad eye and two men with shaved heads. The man with the bad eye was later identified as the defence witness Iuliano. Corporal Masoe said that inspector Afamasaga then showed the search warrant to the three men at the hut and explained to them the purpose of the police search.
32. Corporal Masoe further said that the police received information from Iuliano about a plantation of marijuana at the back of the land and the police then accompanied Iuliano to where the marijuana plants were growing. This seems to be inconsistent with the evidence of constable Faletoese and constable Lilomaiava in the second group of police officers that it was sergeant Esau and them who accompanied Iuliano to point out where the marijuana plants were growing.
33. When the police and Iuliano arrived at where the marijuana plants were growing, corporal Masoe saw twenty four large marijuana plants and a large number of small marijuana plants. When these plants were counted, there were twenty four large plants and one hundred and sixty one small plants. Corporal Masoe then said that when the accused Sapati arrived with other police officers, inspector Afamasaga asked Sapati as to who owns the marijuana plants and Sapati admitted to the plants.
34. Constable Kalolo Mulitalo (constable Mulitalo) testified that when the group of police officers he was with arrived at Tanumalala they came across a small hut where there were three men. When the police searched the hut, they found, amongst other things, a red cigarette packet containing seeks and a pistol. When the police returned to the station, they brought with them one hundred and eighty five marijuana plants. Some of these plants were growing inside small paper cups and small saimin bowls.
35. According to the evidence of inspector Afamasaga, when he arrived at Tanumalala with other police officers, the hut where Iuliano and two other men were was pointed out to him by other police officers who had already arrived at the scene. Inspector Afamasaga then showed and explained to Iuliano the search warrant the police had before searching the hut. The police found three or four marijuana joints inside a knapsack. They also found a pistol. Inspector Afamasaga then asked Iuliano whether there were any other marijuana and Iuliano pointed out where the marijuana plants were growing. When the police and Iuliano got to the marijuana plants, inspector Afamasaga asked Iuliano about the plants and Iuliano replied the marijuana plants belong to him and the accused Sapati. Inspector Afamasaga said he then called the police search party at Fasitoo-tai whether they have found Sapati and the reply from the police search party at Fasitoo-tai was that they have. The police search at Tanumalala was then stopped to await the arrival of the police search party at Fasitoo-tai with Sapati. When Sapati arrived with the police team that was at Fasitoo-tai, inspector Afamasaga said he informed Sapati that Iuliano has admitted that the marijuana plants growing at Tanumalala belong to him and Iuliano and Sapati’s response was that it is correct that the plants belong to him and Iuliano. These were the large and small plants.
36. Under cross-examination by defence counsel, inspector Afamasaga said that when he asked the accused Sapati as to who owns the marijuana plants Sapati replied he owns the marijuana. This is different from what the police inspector said in his evidence in chief that Sapati replied to him that it is correct that the marijuana plants belong to him and Iuliano.
37. Inspector Afamasaga also repeatedly referred under cross-examination to a second plantation of marijuana plants where Sapati admitted to him that the plants belong to him. When asked by defence counsel about the first plantation of marijuana plants, the police inspector replied that there was no first plantation of marijuana plants but only one plantation. After that, inspector Afamasaga again later referred under cross-examination to a second plantation of marijuana plants. As earlier pointed out, this appears to be inconsistent with the evidence of constable Faletoese that there were six blocks of marijuana plants. The evidence of constable Lilomaiava was that he observed two blocks where marijuana plants were growing.
38. As also pointed out earlier, the evidence given by inspector Afamasaga that he was the first police officer who asked Iuliano who owns the marijuana plants appears to be inconsistent with the evidence given by constable Faletoese and constable Lilomaiava. According to constable Faletoese, it was sergeant Esau who led the advanced team of police officers that first arrived at Tanumalala that first asked Iuliano as to who owns the marijuana plants. Constable Lilomaiava gave evidence that when sergeant Esau asked Iuliano as to who owns the marijuana plants, inspector Afamasaga had not arrived at the scene. So it appears from the evidence of constable Faletoese and constable Lilomaiava that sergeant Esau was the first police officer to ask Iuliano about who owns the marijuana plants.
39. In the cautioned statement given by the accused Sapati to sergeant Moalele on 10 July 2014, he admitted that the hundred and eighty five marijuana plants which the police found at Tanumalala were his plants and he knew that these marijuana plants were growing on the land where he has his taro patch.

The evidence of the accused and the witnesses Iuliano and Falaniko Hunt

40. The prosecution witness Falaniko Hunt (Falaniko) said in his evidence that he, Sika, Iuliano, and Sapati have plantations on the same land at Tanumalala. It is a very large area of land. Falaniko and Sika have their taro patch at the front and Iuliano and Sapati have their taro patch at the back. Falaniko also said that Sapati very seldom comes to Tanumalala except on Fridays to get taros for his family’s Sunday brunch (toonai).
41. Falaniko further said that on the morning of the police search, he, Sika, and Iuliano were sleeping in the hut that belongs to him and Sika. A police officer pointed a gun at him and asked where are the marijuana and he replied he does not know any marijuana. Guns were also pointed at Sika and Iuliano who were also pulled out of the hut. Apparently, they were then taken by the police to where the marijuana plants were growing. Falaniko said that the police then asked Iuliano as to who owns the marijuana plants and Iuliano replied they were his marijuana plants. The police again asked Iuliano whether the marijuana plants belong to him and Falaniko and Iuliano replied no.
42. The defence witness Iuliano was jointly charged with Sapati with cultivation of narcotics. He pleaded guilty to that charge and was sentenced to imprisonment. He testified that when the police arrived at the hut in which he was sleeping, he was still in bed. The police then told him to ‘hands up’ and put a gun to his head. He was then made to lie down facing downwards and a pistol was put to the back of his head and he was told to tell the truth or his head would be scattered. He was also punched several times. As a result, Iuliano sustained significant injuries. He was also under apprehension from fear. It would appear that it is the advanced team of police officers who were armed that Iuliano was referring to here. However, none of those police officers was called as a witness by the prosecution even though during the cross-examination of some of the police officers called as prosecution witnesses, defence counsel put to them what Iuliano was going to say in evidence when called as a witness by the defence.
43. So Iuliano said that when he was taken by the police to point out the marijuana plants, his mind was hazy and blank. After he had pointed out the marijuana plants to the police officers, he was told to sit down and a gun was again aimed at him and he was asked whether those were the only plants. A photo taken by the police of Iuliano at this time showed Iuliano kneeling down and was in handcuffs with his hands behind his back.
44. According to Iuliano, the distance between Sapati’s hut and plantation and where the marijuana plants were found by the police is about the distance from the Courthouse to the bus depot at Savalalo.
45. When defence counsel put to Iuliano the evidence given by inspector Afamasaga that when he was asked by inspector Afamasaga about the marijuana plants he replied that the plants belong to him and Sapati, Iuliano said he does not know whether the police asked him such a question as he was in pain and his mind was hazy and blurred. He also denied having given such an answer to the police.
46. Iuliano further said in his evidence in chief that all the marijuana plants belonged to him and he had grown those plants without making it known to Sapati. He also said that Sapati had told him not to plant any marijuana because Sapati knows that he consumes marijuana.
47. Iuliano also said that when Sapati was brought by the police to Tanumalala he walked over and whispered to Sapati that he was injured and was suffering from his injuries. At that time his mind was blurred and he did not know any questions asked by the police to Sapati or any answers given by Sapati.
48. In relation to the marijuana joint that was found in an empty packet of pall mall cigarettes placed between the thatches of Sapati’s house and the marijuana seeds found inside a backpack that was hanging inside Sapati’s house, Iuliano testified that he and Sapati are cousins and he lives with Sapati’s family at Fasitoo-tai in the same house. During the week from Monday to Friday, he stays at Tanumalala working on their plantation and looking after their plantation. Then on Fridays he would go to Fasitoo-tai and spent the weekend with Sapati and their family and return to Tanumalala on Monday.
49. Iuliano testified that he had a backpack which he usually took to Tanumalala to carry cabbage seeds, cucumber seeds, fertilizers, pesticides and other items. On the Monday of the week in which the police came to Tanumalala, Iuliano said he left Sapati’s house in a hurry when the vehicle arrived to take him to Tanumalala. When the vehicle reached the part of the road inland of Leulumoega that goes uphill, he remembered that he had forgotten his backpack which also contained his marijuana seeds at Sapati’s house at Fasitoo-tai. He asked the driver of the vehicle if they could go back to Fasitoo-tai for his backpack but the driver refused as it was too far to go back to Fasitoo-tai. This is the same backpack which the police found hanging inside Sapati’s house containing marijuana seeds.
50. Iuliano further said that when he goes to Fasitoo-tai for the weekends, he would smoke marijuana joints under the bananas behind Sapati’s house. He put those marijuana joints in empty packets of pall mall cigarettes which he and Sapati had used. When he is high from the marijuana, he would insert the pall mall packets between the thatches of Sapati’s house. Iuliano also said that he tried to hide the fact that he was smoking marijuana from Sapati and his wife.
51. The accused Sapati testified that when the police came to his house at Fasitoo-tai in the early morning of Thursday 10 July 2014 he was in his house watching TV. Sergeant Utumapu explained to him the purpose for the police coming to his house and gave him the search warrant. He replied it was alright and for the police to proceed with their work. The police then searched his house while he was sitting at the front door.
52. Sapati said that during the search of his house he heard a police officer calling out that he has found a marijuana joint up in the thatches of his house. The marijuana joint was then shown to him and he said it is alright (ua lelei) and the police continued with their search. The police then found in the thatches of his house a piece of newspaper in which a very small quantity of loose marijuana leaves were wrapped. This small quantity of marijuana was insufficient for a joint. This was also shown to him by the police and he said it is alright. The police search was still continuing and the police found the backpack containing marijuana seeds. This was also shown to Sapati and he simply nodded his head. Sapati denied that the police asked him as to who owns the backpack. This denial by Sapati is in conflict with the evidence of constable Papalii that when sergeant Utumapu showed the accused the backpack containing marijuana seeds Sapati replied the backpack belongs to him and it is his working backpack.
53. Sapati said in his evidence that he did not know of any marijuana substances that were in his house. When the police found the marijuana substances he thought that they must belong to Iuliano because Iuliano is a heavy consumer of marijuana. The backpack found by the police also belonged to Iuliano and Iuliano used to take the backpack with him when he goes to their plantation at Tanumalala. Sapati also said that Iuliano usually goes to the plantation on Mondays but sometimes Tuesdays and returns home at Fasitoo-tai for the weekends.
54. In relation to the marijuana plants found at Tanumalala, Sapati testified that where he has his plantation at Tanumalala is some distance from where the police found the marijuana plants. His hut which is at where he has his plantation is also some distance from where the marijuana plants were found. The distance from where the marijuana plants were found to his plantation is about the distance from the Courthouse to the bus depot at Savalalo. He also did not know that Iuliano was growing any marijuana at Tanumalala.
55. Sapati said when he arrived at Tanumalala, Iuliano who was in handcuffs walked over to him and whispered to him that he had been assaulted by the police. It then occurred to him that if does not admit to the marijuana plants he would also be assaulted. So when the police inspector asked him as to who owns the marijuana plants, he replied that it is him but he was thinking that he will give his correct statement in Court.
56. After the police search at Tanumalala, Sapati and Iuliano were brought the same day to the Apia CID where Sapati was interviewed by sergeant Moalele. Sapati admitted to questions from sergeant Moalele that the marijuana substances found by the police in his house at Fasitoo-tai and the marijuana plants found at Tanumalala belonged to him. He wanted to get away from the police so he readily admitted to sergeant Moalele. But he was thinking he would give his correct statement before the Court.
57. Under cross-examination, Sapati substantially repeated what he said in his evidence in chief as set out in paras 49-54 above. He added in response to questions from counsel for the prosecution that he did not tell the police at his house at Fasitoo-tai that the backpack found in his house belonged to Iuliano because the police only showed him the backpack but did not ask him who owns the backpack. He also added in response to questions from counsel for the prosecution that the reason why he admitted to the police interviewing officer was because he was afraid and worried but he was thinking of giving his correct statement to the Court. He also did not want to sign his cautioned statement but the interviewing officer wanted him to sign. He was also told by the interviewing officer that one could admit now but deny the matter in Court or one could deny now but admit in Court.

Discussion

58. In spite of the fact that a marijuana joint and marijuana seeds were found in Sapati’s house, the principal evidence that the prosecution relied upon to prove the two charges of possession against Sapati is his admission to sergeant Moalele. Sapati has retracted that admission and he explained why he admitted to sergeant Moalele. So at this point there is only the admission by Sapati and his retraction of that admission. But there is then the evidence of Iuliano that the backpack and the marijuana seeds it contained belonged to him. He is also a consumer of marijuana and he inserted the empty packets of pall mall cigarettes which he used for his joint up in the thatches of Sapati’s house. Sapati said he was not aware of any marijuana substances in his house and they must belong to Iuliano who is a heavy smoker of marijuana. On this state of the evidence I am not prepared to find the charges of possession of narcotics against Sapati proved beyond reasonable doubt.
59. As to the charge of cultivation of narcotics against Sapati, the principal evidence upon which the prosecution relied to prove that charge are the admissions by Sapati to inspector Afamasaga at Tanumalala and to sergeant Moalele at the Apia CID. Sapati has retracted those admissions and gave his reasons for the retraction. So we have the admissions by Sapati and his retractions. Iuliano said in his evidence that the marijuana plants found by the police at Tanumalala belonged to him and he grew and cultivated those plants contrary to instructions from Sapati not to grow any marijuana. Sapati had also said that he was not aware of Iuliano growing any marijuana plants at Tanumalala and the distance between the area where Iuliano was found to be growing his marijuana and Sapati’s hut and plantation is about from the Courthouse to the bus depot at Savalalo. Again, on this state of the evidence I am not prepared to find the charge of cultivation proved beyond reasonable doubt.

Conclusion

60. For the foregoing reasons, the two charges of possession and the one charge of cultivation against Sapati are dismissed.
    

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CHIEF JUSTICE