Police v Amosa [2017] WSSC 69 (19 May 2017)

THE SUPREME COURT OF SAMOA
Police v Amosa [2017] WSSC 69

Case name:	Police v Amosa
Citation:	[2017] WSSC 69
Decision date:	19 May 2017
Parties:	POLICE (Prosecution) v FOTUOTAUSAGA AMOSA male of Satupaitea Accused
Hearing date(s):	27 April 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	For the foregoing reasons, I am satisfied beyond reasonable doubt that the accused was in actual physical custody and control of the 6 marijuana cigarettes; and I am satisfied beyond reasonable doubt that the accused had the knowledge in the sense of an awareness by the accused that the 6 marijuana cigarettes were in his possession and an intention to exercise possession. The charge of possession of narcotics is therefore proven against the accused. The accused will be sentenced on 23 June 2017 at 12.30pm. A pre-sentence Report is ordered.
Representation:	O Tagaloa for Prosecution T Leavai for the accused
Catchwords:	Possession
Words and phrases:
Legislation cited:	Narcotics Act 1967 s.7 and 18
Cases cited:	Police v Chan Chui [2007] WSSC 73(25 September 2007) Police v Ofoia [2015] WSSC 67
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FOTUOTAUSAGA AMOSA male of Satupaitea
Accused

Counsel:
O Tagaloa for Prosecution
T Leavai for the accused

Decision: 19 May 2017

RESERVED DECISION

The Charges

1. The accused is charged with one charge of possession pursuant to sections 7 and 18 of the Narcotics Act 1967. He pleaded not guilty to the charge through Counsel on 12 December 2016.
2. The Prosecution alleges that “at Tuasivi on 19 November 2016, the abovenamed defendant of Satufia Satupaitea and Faleatiu, knowingly has in his possession narcotics, namely six(6) rolled cigarettes of dried marijuana leaves”.
3. At trial, the Prosecution called six witnesses. There is no burden on the Accused to prove his innocence by giving evidence on oath. However he chose to give evidence.

Relevant Law

4. The onus is on the Prosecution to prove a Defendant’s guilt through establishing each element of the offence, beyond reasonable doubt.

Possession

5. The elements of the charge of possession of narcotics are found in Police v Chan Chui [2007] WSSC 73(25 September 2007) and Police v Ofoia [2015] WSSC 67, per Sapolu CJ;

The offence of possession of narcotics consists of two elemehis which the prosecution must prove beyond reasonable doubt. These two elements were explained in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 where Hardie Boys J in delivering the judgment of the New Zealand Court of Appeal said at p.278:

" 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 the intention to exercise possession".

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

6. Therefore the 2 elements in this case are:
   • (a) actual or potential physical custody or control of the 6 marijuana cigarettes; and
   • (b) knowledge in the sense of an awareness by the accused that the 6 marijuana cigarettes were in his possession and an intention to exercise possession.

The Evidence of the Prosecution

7. All 6 Prosecution witnesses are Police Officers involved in either executing the warrant of arrest on the accused, searching his body and car, processing him or being in control of the marijuana.
8. The SROS report was tendered by consent, therefore it is undisputed that the cigarettes found in the car were marijuana. It is also undisputed that the accused drove the taxi within which the marijuana cigarettes were found, and he was the only one who drove the taxi that day, prior to the Police officer driving it from Salelologa Wharf to the Police Station at Tuasivi.
9. The Police gave evidence that they went to Salelologa wharf on 19 November 2016 at around 12.30pm -1pm to execute a warrant of arrest on the accused. Constables Lemamea, Lelei and Seia were part of a team who went to execute the warrant. They found the accused at the wharf with his taxi. The accused was then brought by Police to Tuasivi Police Station in a Police vehicle while Constable Lemamea drove the taxi to the Police Station. The taxi was in the middle of a convoy of three cars, with police cars in front and at the back.
10. The only uncertainty surrounding this convoy was in the testimony of Constable Lelei who said there was a wait for the taxi to arrive after he arrived at Tuasivi, but he was certain that it was not a long wait.
11. When the accused arrived at the Police Station he was body searched and nothing was found. He was then taken outside and the taxi was searched. Police found 6 marijuana cigarettes under the floor mat of the driver’s seat, and a lighter and tobacco rolling paper inside the driver’s door. When questioned as to the cigarettes, the accused said they were marijuana cigarettes. He also mentioned a name to Police as he said “pau a le mea kei ua kuu e Anesi gi mea i kokogu o lau kaavale”.
    12. Photographs were taken by Corporal Papu at around 3-4pm that afternoon.
13. The investigating officer Constable Regan Ame then gave the marijuana cigarettes to Constable Misi Iosefa, the exhibit officer who brought the cigarettes to the Narcotics Unit at the Apia Police Station and gave it to Constable Alapati.

The Evidence of the Accused

14. The accused gave evidence that around 1pm on 19 November 2016, he was at the Salelologa Wharf, waiting for passengers. He drove a taxi which belongs to someone else. He says he parked behind buses and a man named Anesi walked up to him and offered him rolled marijuana cigarettes in his palm to take them in his taxi to the shop. The accused says he refused to take him and told him that he was there to wait for boat passengers. Then he walked into the wharf to find passengers. His taxi was left unlocked with the windows down.
15. His evidence is that someone from the buses called out to him that there were some people standing next to his taxi so the accused returned to his taxi. When he did, he saw Anesi and others walk away from his taxi. When he called out to them, Anesi asked “pe kalepe lou kaavale”. The accused said he just stood there. The Police then arrived and informed him about the warrant of arrest. He cooperated with Police and was taken to Tuasivi in a police car. There were two police cars and he was in the second Police car with the taxi driven by Felauai behind them. When they arrived at Tuasivi, they waited for his taxi for over 30 minutes. During that time, he says he was body searched.
16. When the taxi arrived, police searched the taxi while he was present. Police found the cigarettes under the floor mat, and a lighter and tobacco rolling paper in the driver’s door.
17. He says of the cigarettes that these were the same cigarettes that Anesi offered him. He says he does not smoke so has no knowledge about the lighter and the tobacco rolling paper. He says that he does not own the marijuana cigarettes nor did he put them into his taxi. His evidence is that it has been 3 years and he has not smoked marijuana because he goes to church now.
18. He confirmed that he was the only one who had driven the taxi that day, before the Police found him at the wharf.
19. When asked why Anesi would set him up, the accused replied that that this is not the first time Anesi has done this and that he has witnessed Anesi do this before.

Discussion

Actual or potential physical custody or control

20. There is no doubt that the marijuana cigarettes were found under a floor mat of a taxi driven by the accused on 19 November 2016. He was the only one who had driven the taxi that morning according to his own evidence. He knew the cigarettes were marijuana cigarettes according to his own evidence.
21. He denied that the marijuana cigarettes were his. However he was in actual physical custody and control of the marijuana cigarettes as they were well hidden, under his feet, underneath the floor mat on his side of the taxi.

Knowledge

22. This is evidence which also gives rise to the inference that the accused was aware of the marijuana cigarettes in the taxi and had an intention to exercise control. He knew they were marijuana cigarettes.
23. His denial therefore of the marijuana cigarettes being his, is not acceptable evidence to the contrary which can displace the inference.

Defence

24. The evidence of the accused that someone by the name of Anesi may have placed the marijuana cigarettes in his car, underneath his floor mats, and also put in the taxi a lighter and tobacco rolling paper in the door of the driver’s side, is implausible. There is no evidence to the contrary to displace the inference as to mental element of possession. No one saw this Anesi person, and there is no seemingly convincing motive for this person Anesi to put the marijuana cigarettes into the taxi driven by the accused. It is implausible that this person alleged to have set up the accused hid the marijuana cigarettes under a floor mat, rather than in plain sight
25. The accused also seems to put forward a delay in the arrival of the taxi driven by Constable Lemamea on the way to Tuasivi, as a possible opportunity for someone to set him up. The accused says that they waited for more than 30 minutes for the taxi to arrive, inviting the Court to make the inference that perhaps the Police set up the accused.
26. The evidence of the Prosecution is largely consistent as to the convoy to Tuasivi. All say that the taxi was driven by a Police officer and was the second car in between two police cars. The only slight inconsistency is that Constable Lelei said there was a short wait for the taxi to arrive. This is not particularly significant.
27. I do not accept that there was a 30 minutes delay in the arrival of the taxi driven by Constable Lemamea to Tuasivi. I am convinced of the reliability of Prosecution witnesses. Their evidence is significantly consistent in their recollection of the events of that day. They were sincere and forthcoming in their evidence and I have no reason to doubt their truthfulness. Their evidence on the whole says that the accused was at the wharf with his taxi. He was brought in under an outstanding warrant of arrest in a police car. Another Police officer drove his car and was the second car in a convoy of three cars heading from Salelologa to Tuasivi. During a search of the taxi, 6 marijuana cigarettes were found underneath the floor mat on the driver’s side. A lighter and tobacco rolling paper were also found in the driver’s door.
28. I am satisfied that the accused placed the marijuana cigarettes under the floor mat at his feet in an effort to hide them.
29. The other items found strengthen the Prosecution case that the rolled marijuana cigarettes belong to the accused and I am satisfied that these also belong to the accused despite his denials.
30. The accused on the other hand has given an unlikely explanation for the marijuana cigarettes being found in his taxi, which he alone drove on the day in question. I am not convinced by his version of events. He has invited the Court to accept that a person by the name of Anesi set him up for no apparent reason.

Result

31. For the foregoing reasons, I am satisfied beyond reasonable doubt that the accused was in actual physical custody and control of the 6 marijuana cigarettes; and
32. I am satisfied beyond reasonable doubt that the accused had the knowledge in the sense of an awareness by the accused that the 6 marijuana cigarettes were in his possession and an intention to exercise possession.
33. The charge of possession of narcotics is therefore proven against the accused.
34. The accused will be sentenced on 23 June 2017 at 12.30pm. A pre-sentence Report is ordered.
    

JUSTICE TAFAOIMALO TUALA WARREN