Police v Lilo [2017] WSSC 54 (6 June 2017)

THE SUPREME COURT OF SAMOA
Police v Lilo [2017] WSSC 54

Case name:	Police v Lilo
Citation:	[2017] WSSC 54
Sentence date:	06 June 2017
Parties:	POLICE (Prosecution) v Lilo male of Fasitoo-tai and Olomanu Rehabilitation Centre Accused
Hearing date(s):	06 June 2017
File number(s):	S108/17
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	On the evidence and for the foregoing reasons, I find the Prosecution has proven both the physical and mental elements of the charge of possession and the charge has therefore been proven beyond reasonable doubt. This matter is adjourned to Tuesday 20 June 2017 for Pre-Sentence Report and sentencing. The accused is remanded in custody to re-appear on the 20th June 2017 at 12.30pm for sentence.
Representation:	F. Ioane for Prosecution Defendant – Self represented
Catchwords:	Possession of narcotics -
Words and phrases:
Legislation cited:	section 7 and 18 of the Narcotics Act 1967
Cases cited:	New Zealand Court of Appeal case of R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 and Court of Appeal in Attorney General v Fuaifale [2016] WSCA 3.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LILO male of Fasitoo-tai and Olomanu Rehabilitation Centre
Accused

Counsel:
F. Ioane for Prosecution
Defendant – Self represented

Sentence: 06 June 2017

J U D G M E N T

The Charge:

1. The accused is charged with one charge that on the 4^th January 2017, he knowingly has in his possession narcotics namely cannabis substance (1 cigarette of marijuana leaves wrapped in a white rolling paper) weighing 0.4 grams (S108/17).

The Law:

2. The charge against the accused is brought pursuant to section 7 and 18 of the Narcotics Act 1967. Sections 7 relevantly provides:

“7. Possession and use of narcotics – No person shall:

(a) knowingly be in possession of, or attempt to obtain possession of, a narcotic, or;
(b) knowingly procure, consume, smoke or otherwise use, a narcotic; or

(c) attempt to supply or administer, or supply or administer, a narcotic to or on any other person, or otherwise deal in the narcotic in any other manner, –
unless expressly exempted under subsection (2).”

3. Section 18 relevantly states:

“18. Penalty for unlawful supply or possession of narcotics – A person who contrary to this Act or the regulations:

(a) deals in or has possession of any narcotic;
...

commits an offence and is liable to:

(b) imprisonment for a term not exceeding 14 years where paragraph (a) of this subsection does not apply but a Class B narcotic was the narcotic or one of the narcotics in relation to which the offence was committed; or”

4. The meaning of possession was recently revisited by the Court of Appeal in Attorney General v Fuaifale [2016] WSCA 3 where the Court of Appeal stated as follows:

“[9] The New Zealand Court of Appeal case of R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 contains this discussion at p 278:

“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 p289:

“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).

A charge of possession of a controlled drug also requires proof of knowledge by the accused that what is in his possession is a controlled drug; although he need not know its exact nature.”

The Evidence:

5. The prosecution called six (6) witnesses. These were John Smith (“Smith”), Principal Corrections Officer of the Ministry of Prisons and Corrections, Constable Taeao Manino Ti’a and Constable Siapo Tautalafua of Faleolo Police, Detective Constable Alapati Moefanua of the Narcotics Unit, Apia Police, Phillip Reti, a scientist employed at the Scientific Research Organisation of Samoa (“SROS”) and Dave Sapati (“Sapaiti”), a prisoner at Oloamanu Prison.
6. The prosecution evidence is that the accused was a prisoner held at Oloamanu Prison. At about 10.00am on the 4^th of January 2017, the accused was returning to Oloamanu Prison together with Sapati, a fellow prisoner. Both the accused and Sapati had been released for the Christmas and New Year period. According to Smith, he was driving Prison Service Land Cruiser single cab truck registration SPCS06 with a Constable Eliu Tuliau accompanying him. Two prisoners were in the back tray of the truck, Asuisui Salimo and Mareko Lauano. As they left the prison and were driving along the prison road, the accused and Sapati were walking along the road.
7. Smith said that the accused and Sapati were due back at the prison on 3 January 2017, the previous day. On reaching the prisoners, Smith said that he stopped SPCS 06 and directed Constable Tuliau to search the prisoners before they were to go onto their truck. Smith described the accused’s actions as raising suspicions with him. He then turned off the truck and directed the accused to come to him. Constable Tuliau searched Sapati to the right side of the car. Smith searched the accused at the back of the truck. Both Smith and Sapati said that as Constable Tuliau searched Sapati, Sapati was facing towards the back of the truck.
8. Smith directed the accused who had his hands in his pocket to remove his hands from his pocket. When he did so, he had silver (coins) in his pocket. Smith said as follows:

“Na ou taamilo mai loa e faafetaui Lilo ae ou vaaia e tau le mafai ona savali Lilo ona o loo tuu lona lima i totonu o lana taga ma uu lana ato, na oo mai loa ia te au ou fai loa iai e aveese lana ato ma tago e aveese uma mai mea la ei totonu o lana taga aua oa la ei totonu lona lima taumatau. Na sei mai lona lima e tusa e lei uma mai i fafo lona lima ae pei e faamamulu faapea ma na ou vaaia o tupe siliva na toulu mai le lima o Lilo ma na iai le mea pa’epa’e na ou iloaina na fiti i lalo o le taavale. A ou fuaina le umi o le mea na fiti iai le mea paepae lea e tusa toeitiiti lava ogatotonu o le spare aua o le spare o le taavale e vili i lalo i le pito i tua o le taavale ona fai lea o au faatonuga e tusa ai o le sueina o le masalomiaga o le alii o Lilo.

9. John Smith confirmed that the prisoners on the Prison truck had been searched before leaving the prison and nothing was found on them.
10. In his evidence, Sapati confirmed that Smith retrieved a cigarette from under the truck.
11. Smith then took the accused to Faleolo Police with the other prisoners. The cigarette was given to a Police Officer Taeao Manino Ti’a at Faleolo Police. Constable Ti’a gave possession of the cigarette to Constable Siapo Tautalafua who then gave possession of the cigarette to Detective Constable Alapati Moefanua on the same day, 4 January 2017. The cigarette was kept in evidence and on the 17^th May 2017, a cigarette sample was then given to SROS for examination under reference EXHDS 2017/15 and exhibit reference 2017/07. This sample was tested by Phillip Reti and determined to be cannabis plant material (exhibit P1).
12. The accused elected to give evidence. He said that Smith hates him, that he did not have any marijuana on him and that he never flicked any marijuana as alleged by Smith. He said that when searched, he gave the money to John Smith but the money fell.. He does not deny that at the scene, a cigarette was found by Smith but simply, it wasn’t his. The cigarette was either planted by Smith, belonged to another of the prisoners or as suggested in cross-examination, the cigarette just happened to be there.

Discussion:

13. There is no question on the evidence that on the morning of the 4^th January 2017, the accused and Sapati were returning to Oloamanu Prison after having spent time on release over the Christmas and New Year period out of prison. They were returning one day later than they were due back in custody and were therefore apparently unlawfully out of Prison. When they were stopped on their return to the prison on the road going towards the prison, the accused was asked to present material in his pockets. A marijuana cigarette was found under the prison vehicle, SPCS 06, between the rear bumper and spare tyre under the truck. That cigarette was found by Smith.
14. What is in dispute is whether the cigarette was in the possession of the accused and he had surreptitiously thrown the cigarette there while he was removing the coins from his pocket as alleged by Smith or whether the cigarette was either planted there by John Smith, as suggested by the accused, belonged to another of the prisoners or just happened to be found there by chance.
15. I do not accept that by chance, a marijuana cigarette was found under the truck. The odds are extraordinarily minimal and as John Smith said in his evidence, that cigarette was fresh or new. I also do not accept the suggestion that the cigarette belonged to a prisoner on the back of the truck. First, they were searched before they were taken on the truck, evidence that I accept. Second, from their position on the truck, it would have been very difficult for them to secretly throw the cigarette under the truck in the location it was then found by Smith. I also do not accept the suggestion by the accused that the marijuana was planted there by Smith because he dislikes the accused. The reasons why I do not accept this are:
    • (i) Smith had no idea that he would meet with the accused on the way out of the prison as the accused entered. He could not have planned for this circumstance;
    • (ii) I find it highly implausible that Smith, while on Prison duties and then subsequently transporting prisoners to Faleolo Police with Constable Tuliau in his vehicle would have in his possession marijuana. This would be very risky for Smith himself; and
    • (iii) His planting of the marijuana in very close proximity to Constable Tuliau and in view of Sapati is also highly implausible. Sapati certainly did not see Smith plant the marijuana and his general account supports that of Smith.
16. I accept the evidence of Smith that he observed the accused flick the white material subsequently confirmed as a marijuana cigarette that was retrieved by Smith. There is no reason for me to doubt his evidence and I found Smith to be credible on this point.

Decision:

17. On the evidence and for the foregoing reasons, I find the Prosecution has proven both the physical and mental elements of the charge of possession and the charge has therefore been proven beyond reasonable doubt.
18. This matter is adjourned to Tuesday 20 June 2017 for Pre-Sentence Report and sentencing.
19. The accused is remanded in custody to re-appear on the 20^th June 2017 at 12.30pm for sentence.

JUSTICE LEIATAUALESA DARYL CLARKE