Police v Keli [2017] WSSC 85 (29 May 2017)

SUPREME COURT OF SAMOA
Police v Keli [2017] WSSC 85

Case name:	Police v Keli
Citation:	[2017] WSSC 85
Decision date:	29 May 2017
Parties:	POLICE (NPO) v BIRD MANU FAGAIA KELI male of Matautu Apia
Hearing date(s):	11 May 2017
File number(s):	S2981/16, S2892/16, S2913/16
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	Defendant is found guilty on both the charges of intentional damage and possession of a narcotic.
Representation:	F Ioane for Prosecution (NPO) Defendant in person
Catchwords:
Words and phrases:	Drunkenness in public place – possession of narcotics – intentional damage
Legislation cited:	Crimes Act 2013 s.184(2) Narcotics Act 1967 s.7 & 18, Police Offence Ordinance 1961 s.16(a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE (NPO)
Prosecution

A N D

BIRD MANU FAGAIA KELI male of Matautu Apia
Defendant

Counsels: F Ioane for Prosecution (NPO)

Defendant in person

Hearing: 11 May 2017
Decision: 29 May 2017

DECISION OF THE COURT

Charges:

• The defendant has pleaded guilty to the charge of drunkenness in a public place (S2891/16). He pleaded not guilty to the charges of being in possession of a cannabis substance - a half (1/2) marijuana joint weighing at 0.2 grams at the Apia police station on the 19^th of November 2016 (S2892/16), and intentionally damaging a plastic glass cell door at the Apia Police Watch House on the 19^th of November 2016, the property of the Ministry of Police (S2913/16).

Background

• D was arrested by police from Matautu-uta in the early hours (about 3.00am) of Saturday morning (19/11/16) to the Apia Station. He was very drunk and equally difficult when officers tried to put him in police car. At the police station, he was searched at the watch house by const. Andrew Fuimaono while hand cuffed. Marijuana rolled or wrapped in a piece of foil was found in D’s right trouser pocket and put on a nearby table by Fuimaono. A half smoked marijuana joint rolled in white paper was also found in D’s left trouser pocket. Both items found on D were shown to him before being put on the table nearby. Another officer senior to Const. Fuimaono came to the watch house and ordered the police officers present during the search with Fuimaono (Const. S. Tuilagi, and Const. D. Bartley) to remove the handcuffs. Const. Tuilagi removed the handcuffs from D. Once removed, D reached out to the nearby table, grabbed the foil-wrapped item, put it his mouth, chewed and swallowed it. D admitted the foil wrapped item he grabbed from the table and swallowed when his hands were free was in fact marijuana. The reason he did it, is obvious. He denied that the ½ smoked joint he is charged with was found on him that morning. After, D was put in cell 4 where 2 other men (one of them being Fareti Fiti Fata) were sleeping. Once inside cell 4, D started kicking the cell door which awoke Fata from his slumber. Eventually the hard plastic lower portion of the cell door broke. D and the two men in cell 4 including Fata were taken to a different cell.

Discussion:

Possession of Narcotics Charge.

• The first requirement for the prosecution to prove this charge is the fact of physical possession of the half smoked joint, and the half smoked joint was in fact a prohibited substance being marijuana. The defendant did not deny that constable Fuimaono showed him the half smoke joint during the body search of him. What he denies is it was his. The half smoked joint constable Fuimaono showed the defendant is the police evidence of the first requirement the police need to prove.
• The second element the police must prove is that the defendant knew the half smoked joint the defendant denies as being found on him was in fact marijuana. These are the court’s findings from the evidence heard. The collective evidence of constables Tuilagi, Bartley and Fuimaono established that the half smoked joint was found inside defendant’s left trouser pocket. Even though the defendant denied any knowledge of where the half smoked joint shown him came from there is no evidence other than his denial to rebut the evidence of constable Fuimaono about the half smoked joint he found and where he found it. Furthermore, the evidence of constables Bartley and Tuilagi is convincing regarding what they saw during the body search of the defendant and what constable Fuimaono found and where he found it. It is also an established fact that the half joint shown to the defendant that morning by constable Fuimaono was given by the police forensics officer to and analysed by the Scientific Research Office (SROS). The certificate of analysis provided by the witness from SROS and tendered in her evidence proves beyond any doubt that the contents of the half smoked joint given them by the police was the prohibited narcotic, marijuana. The forensic evidence of the police case is unrebutted because the defendant did not ask any question to any of the witnesses who gave evidence in relation to the scientific analysis of the half smoked joint.
• In further support of the police case is the fact the defendant openly admitted another item wrapped in a piece of foil also found on him during the same body search which was subsequently snatched and swallowed by the defendant was marijuana. The court concludes that the defendant’s denial of any knowledge of the half smoked joint shown him by constable Fuimaono in the presence of constables Tuilagi and Bartley is rejected as fanciful. The veracity or the truthfulness of defendant’s evidence on the issue of his knowledge is highly questionable in the courts mind. On the charge of possession of a half smoked joint of marijuana the court is satisfied both the fact of physical possession by the defendant and the knowledge the half smoked joint shown him by constable Fuimaono was marijuana are proven beyond a reasonable doubt. The defendant is found guilty of this charge.

Intentional Damage Charge.

• There are two elements of the charge the police are required to prove. The first element is the fact of physical damage to the cell door. The police evidence on this element is overwhelming. The defendant does not deny kicking the cell door on the morning in question. He however denies causing the damage. He claims to other men he was put in custody with also kicked the door the same time he was. He does not know the names of the other two men who alongside him were also kicking the cell door but thinks they were men arrested from the same location and incident he was arrested earlier the same morning. He said there were five instead of three men including him inside the same cell when the cell door was damaged. The three men kicking the door with and alongside him and two other men who were already in the cell when he was put in it. This claim is inconsistent with the police evidence of what happened and how many men were in the same cell as the defendant that morning. According to the police evidence there were only three men in cell 4 when the door was damaged. They were Fata Fareti, Simeauli Fata and the defendant. According to Fata Fareti there were only three of them in cell four that morning including the defendant, not five. Fata’s evidence on this point is supported by constable Bartley who said only Fata Fareti and Simeauli Fata were in cell 4 with the defendant before the cell door broke. The prosecution evidence is preferred. The defendant it must be remembered was according to the police who arrested him that morning was very drunk. So the first element that is the evidence before the court, in other words that is the evidence in relation to the physical damage to the door.
• The second element is one of knowledge or intention. In this case the question is whether or not you had the necessary intent to cause damage to the cell door at the time it was damaged. Fata’s evidence is you were the only one kicking the door that morning, that evidence is supported by the evidence of constable Tuilagi and constable Bartley who both saw you from outside the cell kicking the cell door from inside. Findings of fact on this charge. There were only three men in cell 4 that morning, not five. The defendant admits kicking the cell door. It follows the defendant’s intention at the time he was kicking the cell door and the consequences of his actions do not pose a problem for the prosecution or this court. The defendant’s claim that two other men were kicking the door the same time he was is rejected as fanciful and untrue. I find the evidence against the defendant on the issue of intention is overwhelming. Consequently I find the defendant guilty of the charge of intentionally damaging the cell door the property of the police on the morning of the 19^th of November 2016.

Findings:

• Defendant is found guilty on both the charges of intentional damage and possession of a narcotic.
• O lea o le a toe tolopo i le aso 16 o Iuni, mo se lipoti mai le vaega o le nofo vaavaaia, faapena ma se lipoti mai leoleo i le faitotoa o le cell ma le lauina o le faaiuga i moliaga e tolu lea ua faamaonia. O le a faaauau le tatalaina o oe i tua, ae e le gata i aso Gafua, ae o le a faaopoopo ma le aso Faraile e te saini ai i le ofisa o Leoleo i Apia, tuutuuga na o le tatalaina o oe i tua I le asō ma vaiaso ia o totoe.

JUSTICE VAEPULE VAEMOA VAAI