Police v Pesa [2018] WSSC 129 (6 December 2018)

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Case name:	Police v Pesa

Citation: Hearing date:	[2018] WSSC 129 2^nd & 8^th November 2018

Decision date:	6^th December 2018

Parties:	POLICE v PEIKA PESA male of Maninoa Siumu
File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- For the foregoing reasons therefore, I find that the prosecution has failed to prove the charges beyond a reasonable doubt and the charges are accordingly dismissed.
Representation:	L Faasii for prosecution Accused self represented

Catchwords:

Words and phrases:	possession narcotics namely cannabis substances; possession of seeds; I find that the prosecution has failed to prove the charges beyond a reasonable doubt and the charges are accordingly dismissed.

Legislation cited:	Narcotics Act 1967

Cases cited:

Summary of decision:

[2] The charges against the accused are brought pursuant to section 6(1)(b), 7 and 18 of the Narcotics Act 1967. Sections 6(1)(b) and 7 relevantly provide:
“6. Unlawful cultivation of prohibited plants – (1) A person who:
(b) has in his or her possession the seed of a prohibited plant, –

commits an offence, and is liable on conviction to imprisonment for a term not exceeding 14 years.”
“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] 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:

“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.”

[4] Prosecution called eleven (11) witnesses. These witnesses were Sgt Lemalu Upumoni, Detective Alapati Moafanua, Corporal Poasa Papalii, Constable Siuseia Tauauvea, Constable Tuitagi Momoe, Constable Siuli Burgess, Constable Marlinda Gasu, PJ Lemalu, Leva Avoki,, Philip Reti, and Semi Semi.

[5] The prosecution evidence is that on the morning of the 26th December 2017, the accused went to Semi Semi’s home at Vailoa sometime after 9.00am. There, he asked Semi Semi to go with him to an abandoned 2 storey house at Tulaele, some 200 metres from Semi Semi’s house. Together with a third person by the name of Tovio, Semi Semi and the accused were taken to that house by a friend’s taxi. According to Semi Semi, others were also present at the house.

[6] According to Semi Semi, the accused had a black bag with him which he described as having two zips. He confirmed the bag as exhibit P2. According to Semi Semi, inside the bag was marijuana which the accused took out in the upstairs of the two storey building.

[7] He described the accused as having 40 ‘pulu marijuana’ which he had placed on the floor. He described there being a large quantity of marijuana, including branches. They were alerted that Police had arrived. The accused then wrapped the marijuana in an Avele ie, put the ie in the bag and the accused took off. Police gave chase. According to Semi Semi, they ran to the back of the house along a river. He and the accused separated with the accused running up river. He described being caught by Police.

[8] In his evidence, PJ Lemalu (PJ) who lives at Lotopa said that he had been informed by his father Sgt Upumoni to go down to the river at Fuluasou to see if they could see a male wearing army pants and a white top carrying a back pack. He was told the male is a prisoner. When they went to the river, they spoke with Leva Avoki (‘Avoki’) and asked him if he had seen a male and he said yes, he had come by the river behind the Faleata School. They then waited to see if he would come back. They saw the man crossing and then followed him.

[9] At Tulaele, there is a property with wrecked cars. They followed him into that property and the male hid behind wrecked cars. They called to him to wait and he reached into the black bag as if to try and scare them. He was told to take his hand out of the bag but he then ran off and they gave chase. He went into a togavao and inside the togavao, the black bag fell. They continued to give chase but he threw rocks at them. The male tried to escape but was then captured by PJ and others. He described the distance between where the bag was dropped to where they captured him as not far. PJ stayed with the male and spoke to Police when they arrived. Avoki went and retrieved the bag. PJ identified the male as the accused.

[10] PJ said that Avoki gave the bag to a police officer on the pickup. They then went to the Faleata Police Station together with Avoki, Toe and Peika. When they arrived at Faleata Police Station, the police officer told Avoki to take the bag to Sgt Upumoni and he then went and took the bag to him.

[11] In his evidence, Avoki recounted meeting with PJ and giving chase to the accused. His account is similar to that of PJ’s. Relevantly, he said that the male went behind Manuia’s fence, dropped the bag under a lemon tree and he went inside the togavao. He described the bag as a black back pack bag, ripped. They gave chase inside the togavao, did not catch the male and then came back outside. The male was then later seen next to the house, chased again and he was then captured by Lusi and his brother.

[12] The male was then taken to the road front and he (Avoki) went and retrieved the bag. Avoki described the bag as being open. There was an avele ie aoga with marijuana inside it, he could see branches protruding from the ie. He then brought the bag and gave it to a police officer whose name he didn’t know. It was the police officer he gave the bag to that told Avoki that it was marijuana. They then climbed on to the vehicle and went directly to the police station at Faleata. At the Faleata police station, he then gave the bag to another police officer saying:

“Pros e mafai mai ona e toe faamanino tasi mai lava ina ua tou taunuu i Faleata, o le a la le mea ga tupu?

Wit na matou o atu a i le ofisa o leoleo i Faleata ou oso i lalo ave le ato i lima o le alii leoleo matou toe omai oso i luga o le taavale matou omai loa momoli mai matou i le fale.”

[13] When they arrived at Faleata police station, he gave the black bag to a police officer who was inside the police station. He did not know the police officer he gave the bag to and he did not sign any papers on the handing over of the bag.

[14] In his evidence, Sgt Upumoni relevantly says that he was on duty that day and was involved in the arrest of the accused. After receiving a call from his son PJ, he and other officers attended at Tulaele. There were a number of people there including the accused. In terms of the bag, Sgt Upumoni’s evidence was that Avoki had given him the bag at the Faleata police station.

“Wit e faatasi lava na valaau atu loa matou omai loa ma avatu loa Peika. O le mea foi lea e fesili mai ai Peika oute lei taua na matou o atu ma le ato i le taimi lea, ona ua tuu Peika i o ae ou toe savali mai e saili le ato lea e taua ae oso atu loa ma le tamaititi lea oute taua ma tuu atu ia au. O totonu la o le ofisa lea na tuu atu ai le ato ia te au ina ua ou fesili i le ato lea o loo fesiligia lau afioga.”

“Sa faapena loa ona tuuina atu i le taitai o le tiute i le aso lea sa iai foi Maotaalii lea ua fai i lagi le folauga ma faamatala iai lenei mataupu ma sa faapena ona gafa ai loa mo le sailiiliina o le ato
...

Pros le ato uliuli lea sa avatu ia te oe o fea poo ai se tagata e te manatua sa e tago toe pasi agai iai?

Wit o Maota ona o le tiute lea o Poasa Papalii sa taitai tiute i le aso lea ae tupu le mataupu lenei o loo iai ma le taitai o le matou pou i Faleata sa iai uma a i le taimi lea.”

[17] In his evidence, Constable Tuitagi Momoe said he was on duty with Sgt Upumoni on the morning of 26th December with Fagaloia Fiso. Constable Momoe said that he went to the two storey abandoned house at Tulaele and he was involved in capturing Semi Semi. As he captured Semi Semi by the river, he said he saw the accused looking behind as he fled and saw that it was the accused with the black back pack running off. He said that after the accused was later caught, they took the bag with the untitled men who had retrieved the bag. These untitled men kept the bag and when they reached the police station, the bag was opened on a desk in the presence of the officer in charge, Maota’ali’i Kaioneta (Kaioneta) and put on the desk. He says that marijuana was found inside an Avele ie lavalava.

[18] In her evidence, Constable Marlinda Gasu said that she was also working on the 26th December. She had heard a lot of noise in the office. She walked there and noticed there were police officers from Apia also there with others. She saw on the table an open bag with marijuana on the table and a suspect seated next to the table. She was directed by Kaioneta to get a seat and to come to the table to help them to sort out the seeds.There were four of them there with Kaioneta, being also Poasa Papali’i, Siuseia Tauauve’a and herself. She said this took a long time and they finished at about 6.30pm. The whole time, she said that the suspect was seated there facing them and watching what they were doing. She identified the accused as that person.

“Wit i le taimi o le faavasegaina o fatu sa faapea mai ai lo’u taitai ia te au Marlinda, Siuseia tuu eseese lau, pefu ma fatu ona o ia vaega e maioio i totonu o le tulafono e pei o le mafuaaga foi lea na matou faavasegaina ai lea tulaga ae lei tuua i teutusi mo le aumaia i le vaega o loo faapitoa mo le siakiina o mariuana
Pros o le a la le galuega sa fai le faavasegaina o mariuana ia ete taua?

Wit na maea ona faitauina mariuana ona faatonuina lea o a’u e le taitai oute agai e aumai manila file e stapler ma tuuina iai mea sa maua i totonu o lea ato ma tusia ai le suafa o lē o loo masalomia i lenei mataupu
Pros ete maitauina mea ia sa tou faavasegaina?
Wit ia sao lelei
Pros oa la na mea?

Wit o laulaau ma fatu ae oute leiloa poo le a le aofai ae o lo’u iloa e tele fatu o le pefu faatasi ai ma ni laau sa iai i lea vaega faatasi ai ma se ie lavalava o le aoga a Avele College

Pros o lea foi sa e taua sa iai ma le ato sa iai i luga o le laulau sa matala, e lanu a lea ato?
Wit e lanu uliuli le ato sai luga o le laulau.”

[20] She identified the bag as exhibit P2. In her evidence however, she said that the exhibits were placed in two manila folders saying in evidence:

“Pros o lea foi e taua i lau mau o oe sa faapipiiina le manila file oa mea sa e tuua ai i totonu?

Wit o fatu mariuana e pei ona ou taua, o pefu na tuu eseese ma lau laau ma oga laau o le mariuana
Pros e fia manila file sa tuu ai i totonu?
Wit oute iloa e lua, e lua manila file na tuu ai totonu mea.

Pros e mafai ona faailoa mai poo a mea na tuu i totonu o lea manila file ma le isi manila file?

Wit e pei ona ou taua muamua o le manila file sa ou tuua ai fatu ma pefu ma le oga laau faatasi ai ma le ie aoga Avele lea na avatu faatasi i le ato e pei na faatino ai le matou galuega
HH o fatu ma a isi mea?
Wit lau laau ma oga laau
HH ma le ie?
Wit ia
HH sa tuu foi i totonu o le manila file?
Wit ia manila ia e lua ua uma ona stapler

Wit sa faatonuina a’u e le taitai e tusi ai le suafa o le o loo masalomia i lenei mataupu ma tuuina atu i le taailua ia Poasa Papalii ma faamau loa i totonu o le api o faamaumauga a Faleata ma tuuina atu i tai i le vaega a le nakoti.”

[21] In her evidence, Marlinda confirmed that the procedure at Faleata Police post is that when marijuana seeds are seized, they count the marijuana seeds. She was asked to explain why the seeds were not counted this day but they only sorted. She explained that they were very busy with Semi Semi who had been brought in earlier that day.

[22] Constable Gasu explained that the manila folder and the bag was then given to Corporal Papali’i and Constable Burgess. She explained that the reason the marijuana was placed in manila folders was that they did not have any large envelopes at the time and it was she that folded the sides of the manila folders and stapled those sides.

[23] In his evidence Corporal Poasa Papali’i also said he was working on the 26th December. His evidence was that:

“Wit oute manatuaina o le aso lea sa ou faigaluega ai ma o le taeao ua ou le manatua le taimi poo se mea o le 10 agai i le 11 na saisai atu ai e leoleo ni taulelea se toalua ua maua ai ni laau ma ni fualaau faasaina faapea ma fatu. Oute talitonu o lo’u piitaga lena i lenei mataupu ona sa faatonuina a’u e le matou alii taitai sa iai i lena taimi matou te faavasegaina mariuana na maua i totonu o le ato lanu uliuli ma faapea ona faailoa i le o loo molia i lenei mataupu.”

[24] Four of them were then involved in this task. These were Inspector Kaioneta, Constables Gasu, Tauauve’a and himself. He described the count of marijuana as follows:

“Wit o laa mariuana sa maitauina i le taimi lea e faigofie ona faitau, e 12 lau o laau mariuana faatasi ai ma sikareti ua uma ona taai e 8 ae lei mafai ona faitauina fatu ona e fai si tele ma le isi tulaga sa faatonuina ina ia ave i le ofisa lea e gafa ma mataupu ia i le Drug Squad i Apia ona faitau faatasi ai lea. Ae o la’u tau manatuaina lea o tualaga ia na matou faavasegaina i Faleata.”

[25] After they sorted the marijuana, the marijuana was then placed in a large brown envelope and placed inside the bag which had clothing items in it such as Avele School ie. An entry was also made in their ‘api’ for the matter to be referred to Apia that same day. He went with Constables Tauauvea and Burgess to Apia that day, however, the narcotics officer was not available so they returned to Faleata with the items. They were directed by the ‘taitai’ to place the items in the exhibit room at Faleata. He believes it was Constable Gasu who completed the exhibits book for placing in the exhibit room.

[26] On the 4th of January, Corporal Papalii was involved in the transportation of the suspected marijuana to Apia Police. He said:

“Pros e mafai ona e faailoa mai poo a mea ia na o ma outou lea na tauaao atu ia Alapati?

Wit o laau mariuana faatasi ai ma fatu ma sikareti mariuana ua uma ona taai ma nisi o lavalava e pie ona ou taua sa iai i totonu
Pros sa faafefea la ona ave meafaitino ia ia Alapati?

Wit na matou omai ma le api lea e pei ona taua ua uma ona faamaumauina iai i totonu ia meatotino ia ma tuuina i luma o Alapati. Na tuuina i fafo ma faapea loa ona toe faitau laau ia ma fatu mariuana faatasi ai ma le susuga ia Alapati.”

[27] Constable Tauauvea was also at the Faleata police station and was involved with the sorting out of the suspected marijuana. He could not give any reliable evidence of the quantity of suspected marijuana there was that police examined.

[28] Whilst Constable Tauauvea gave evidence about his role on the 26th December 2017 when that date was led in examination in chief, when he was re-asked the day by the Court, he could not recall when questioned without being led. His evidence was nevertheless:
“Pros oa latou gaioiga lea na e taua poo a mea ia na faitau?

Wit mo le silafia e lau afioga mo fatu o laau faasaina poo fatu mariuana lea
Pros nao le pau lea?

Wit sa ou vaaia ma lala ma laau faasaina sa iai totonu ii ae pau lena o le mea sa faasinotonu iai le matou vaega lea aua le faitauina
Pros o le a la lau matafaioi sa fai i le taimi lea?
Wit mo le silafia e lau afioga nao le faitauina lea o fatu mariuana
Pros e mafai la ona e faalautele mai pe fia ni fatu sa e faitauina?

Wit mo le silafia e lau afioga ua ou le manatuaina le aofai ae o lea oute iloa e ova ma le 100 fatu na faitauina i le aso lea

Wit ona o le tulaga i le taimi na matou faitauina ai e fai sina tele o fatu i le taimi sa matou faitauina i lea aso, e tofu matou ma le pito o le laulau sa faitauina ai fatu e fai sina tele.”

[29] He explained that after the count, the marijuana seeds were given to Kaioneta and it was placed together with other seeds in a single white envelope. There is a significant difference between over 100 suspected marijuana seeds given in his evidence and the 2,105 seeds with which the accused now stands charged. Constable Tauauvea also said that he did not do a report at the time of the count and explained the reasons as follows:

“Wit mo le silafia na maea loa ona faitau fatu mariuana faapea mai loa Kaioneta o ia lea o le a faia le ripoti atoa o le faatinoina o lea vaega.”

[30] No such report prepared by Inspector Kaioneta was tendered in these proceedings nor was there any reliable evidence that a full count of the marijuana seeds had been conducted on the 26th December 2017 and if so, what that amounted to.

[31] In her evidence, Constable Burgess was the Investigating Officer when the accused was brought to the Faleata Police Station. Despite being the investigating officer, she could not remember the date he was brought in and was helpfully told by the prosecutor from the bar table.

[32] Present in the station that day when the accused was brought were “Kaioneta, Poasa, Siuseia, Lemalu, (herself) ma Marlinda”. She did not participate in the search of the bag by Police as she was interviewing the accused. She however described the search as involving Kaioneta, Marlinda, Siuseia and Poasa. She described seeing the count being recorded in accordance with the usual police process at Faleata involving counting the narcotics and recording it at the same time on a form. She however did not see a copy of the completed form

[33] She describes being given by Kaioneta one white envelope and a black bag which she identified as exhibit P2. When given to her, she said the ‘marijuana’ had already been put into the large envelope. She took the ‘marijuana’ to Alapati Moefanua but he wasn’t there at the Apia police station as he was involved in the police camp at that time. They returned to the Faleata police post and the bag and envelope was then left in the Exhibits Room with Lagi. A record of entry of the evidence was supposedly kept and the key to the exhibit room held by Kaioneta. That record however was not tendered and I have some doubt about this part of Constable Burgress’ evidence.

[34] On the 4th of January, she says that she and Kaioneta went to the exhibits room and retrieved the bag and envelope. She then went with Corporal Poasa and Constable Siuseia to Apia Police and she gave the envelope and bag to Detective Moafanua. When she looked into exhibit P2 at the hearing, she confirmed that the envelope in the bag was the one she had been given and that its colour was in fact brown, not white as she had earlier said.

[35] Detective Sgt Alapati Moafanua is with the narcotics unit and received a black back pack with blue color on the 4th January 2018 from Constable Burgess. Inside was a stapled manila folder. He described the contents of the manila folder as follows:
“HH e fia fatu mariuana?

Wit 2,105 – sa faapea loa ona faia la’u galuega o le fuaina lea o le mamafa o lau lusi, lala mariuana faatasi ai ma sikareti. O lala mariuana e 18 e tusa le lala pupuu ma le 3 inisi lona umi, o le lala umi e tusa ma le 36 ½ inisi lona umi. O le mamafa o nei lala mariuana sa fuaina e 86.4 kalama. O le vaega o lau lusi o lona mamafa e 53.4 kalama. O le mamafa o sikareti mariuana e 12 e 6.7 kalama. Ina ua maea sa ou faaaogaina loa ni teutusi e teu ai i totonu nei maufaitino e faamauina ai le igoa o le o loo masalomia ma seal ma ou saini ai i luga ma toe tuuina i totonu o le ato ma tuuina loa i le potu o loo faapea ona teumalu ai meafaitino e maua mai i suesuega a leoleo.”

[36] He said that when Constable Burgess came with the items, she had an exhibits register. No such register was tendered.

[37] On the 5th June 2018, on receiving a file note from the Attorney General’s Office, he retrieved the items from the locked room in which it was stored. He opened the bag and said in his evidence:

“Wit ... Sa ou aumaia se vaega mai lala mariuana e pei ona taua e 18, o se veaga o lau lusi, o se vaega o sikareti mariuana e 12 fatasi ai ma se vaega o fatu mariuana e pei ona taua e 2,105. Sa faaaogaina foi ni teutusi e toe tuuina iai i totonu nei maufaitino ma faamauina ai le exhibit number ma le exhibit reference number ma tuuina atu loa nei maufaitino i le ofisa o saienisi aua le faaauauina iai o latou suesuega.”

[38] The items were given the exhibit drug number EXHDS2018/04 and exhibit reference number 2018/04. Sgt Moafanua took the items to SROS and gave it to Luanda Epa and Philip Reti.

[39] In his evidence, Philip Reti tendered his report Exh. P1. He is a scientist with the Scientific Research Organisation of Samoa. He said that the items that were examined were given to Luanda Epa. He was present in the room when it was delivered by Detective Moafanua. The items delivered were in envelopes marked Police v EXHDS/2014-04. EXH REF: 2018/04.” In his report, Mr Reti notes:

[40] Envelopes [A], [B] and [C] was confirmed as containing resin and ‘was cannabis plant material’. Envelope [D] contained 131 seeds and were all cannabis seeds.

[41] The accused elected to give evidence. He is 38 years old. He says that on the 26th of December, he met up with Semi Semi at a shop. Semi Semi offered to sell him marijuana and said to go to the 2 story house together. They went to 2 story building and there were many people there. Not long after arriving at that 2 story building, Police arrived. He saw police officer Fagaloia who he knows so he ran. He says he had no bag with him. There were three of them together. He doesn’t know what happened to the others. He went and hid at Faleata School and then went to a house he didn’t know. Some taulealea saw him, captured him and he was taken to the front of the road. Police then arrived and he was taken to the police station and locked in a cell. He says he was shocked when he was taken from the cell and cautioned by Siuli Burgess. He refused to give a statement and in his evidence, he denied that the black bag was his.

[42] The accused does not dispute that on the 26th December 2017, he had met up with Semi Semi and that they went to a 2 storey building. The accused however put to Semi Semi that he did not know who owned the bag. Semi Semi said that the accused had brought the bag with him. In his evidence, the accused said that he had met up with the Semi Semi at a shop and that it was Semi Semi that offered to sell him marijuana.

[43] I accept the evidence that on the 26th December 2017, the accused had met with Semi Semi and they went together to the abandoned 2 storey house. At that house, the accused took out of a black back pack with material that appeared to be marijuana, the back pack identified by Semi Semi as exhibit P2. When alerted that Police were there, I accept that the accused re-packed the bag, placed the material in the bag in an Avele ie and he fled the building. Semi Semi was captured but the accused managed to escape.

[44] I reject the accused evidence that the bag exhibit P2 was not brought by him. If the bag had not been brought by the accused, he would not have fled with the bag. I accept the evidence of Constable Momoe who saw the accused fleeing the 2 story building by the river carrying the black back pack.

[45] I also accept that the accused was later seen and followed to a property said to belong to Manuia. At that property, the accused had possession of a black back pack, hid behind cars and attempted to scare the young men who had followed him there, PJ Lemalu, Avoki and others. He then fled from his hiding spot, went into a togavao dropping the black back pack as he fled.

[46] I accept the evidence of Avoki that he then returned to where the black back pack had been dropped and he retrieved it. He then went with police officers to the Faleata police station and there inside the police station, he gave the bag to a police officer he did not know. I accept that the police officer he gave the bag to was Sgt Upumoni who confirmed in his evidence that it was he who was given the bag inside the police station. In his evidence, PJ also said that Avoki gave the bag to Sgt Upumoni.

[47] I accept Sgt Upumoni’s evidence that he gave the black back pack to the Maotaalii Kaioneta. I accept the prosecution evidence that it was then placed on a table at the police station. Maotaalii Kaioneta was directing officers on the organizing the suspected marijuana, including directing Constable Gasu to assist with the sorting out. I accept the prosecution evidence that present and sorting out the suspected marijuana were Maotaalii Kaioneta, Marlinda Gasu, Siuseia Tauauve’a and Poasa Papali’i.

[48] There then followed in my view serious deficiencies in the prosecution evidence relating to the handling of the suspected marijuana from this point on at Faleata police station. Whilst there were four police officers involved with sorting out the suspected marijuana, there was no written record tendered as evidence detailing accurately the suspected marijuana retrieved and the quantity of suspected marijuana counted or sorted that day at that table in the Faleata police station. In fact, the prosecution evidence also seems to differ with Constable Tauauvea’s evidence indicating that a count of the seeds was carried out (and saying it was over 100 seeds, well short of the 2,105 received at Apia police station) and Corporal Papali’i and Constable Gasu saying that there were too many seeds to count with Constable Gasu explaining that they were too busy that day.

[49] The only vaguely detailed prosecution evidence about the amount of suspected marijuana said to have been retrieved and counted on the 26th December 2017 was given by Corporal Papali’i. He said that “o laau mariuana sa maitauina i le taimi lea e faigofie ona faitau e 12 lau o laau mariuana faatasi ai ma sikareti ua uma ona taai e 8 ae lei mafai ona faitauina fatu ona e fai si tele...” (emphasis added)

[50] Seriously problematic for the prosecution’s evidence is that Corporal Papali’i’s count on the 26th December 2017 is then quite different to the count taken by Detective Moafanua at Apia police station 9 days later on the 4th of January 2018. What was received at Apia Police Station and counted by police there was 18 marijuana branches with leaves, a long branch, 12 cigarettes and 2,105 seeds. There was no explanation why there was such a difference between these two pieces of evidence in terms of the quantity and type of marijuana between Faleata police station and the Apia police station.

[51] A further problem with the prosecution evidence was the differing and unclear police evidence in terms of what the suspected marijuana was then placed in after it had been organized at the table. In her evidence, Constable Gasu says she obtained two manila folders and stapled the folders in which the suspected marijuana and the Avele ie was placed in. Corporal Papali’i and Constable Tauauvea however only refer to one envelope. Critically, whilst Constable Gasu refers to two manila folders in which the evidence was placed, Detective Alapati refers in his evidence to only one being provided to him when the suspected material was handed over on the 4th of January 2018.

[52] In terms of Constable Burgess who was the Investigating Officer, I found her evidence and what appears to be the conduct of the investigation quite unsatisfactory and unreliable. This is perhaps best demonstrated by her clear and certain evidence that the envelope that the suspected marijuana was placed in was white then changing that evidence to brown when asked to look into exhibit P2 and the envelope in P2 being brown. That she also could not recall the date on which the accused had been brought into the police station, being the investigating officer, is also of some concern more generally in terms of how this matter was investigated and the reliability of Prosecution evidence.

[53] Given the state of the prosecution evidence and the differences between the suspected material organized at Faleata police station and what it was placed in and what was then received at Apia police station 9 days later, I cannot be certain that the integrity of the material or indeed that the material that was received at Apia police on the 4th January 2018 was the same as what was retrieved and organized and counted on the 26th of December. Though Constable Burgess referred in her evidence to a sort of exhibits register having been purportedly signed by a person by the name of Lagi when the evidence was taken to the Faleata police exhibits room for safekeeping, Lagi did not give evidence nor was the signed document referred to by Constable Burgess as signed by Lagi tendered. That’s if it existed, may have been helpful. As I have said however, I have concerns over the reliability of Constable Burgess’ evidence. I also view the 9 day delay in transfer of the suspected marijuana to Apia as relevant in light of the fact that the ‘count’ by Corporal Papali’i was materially different to that which was conducted at Apia Police. This raises doubts in terms of the integrity of the Faleata exhibits room during that intervening period.

[54] Whilst I accept that the material in the possession of the accused on the 26th December 2017 was suspected by police to be marijuana substances in the form of cannabis and the prohibited plant sativa L, it has not been proven beyond reasonable doubt that it was in fact cannabis substances and the seed of the prohibited plant sativa L. This is because I am not satisfied beyond reasonable doubt that what was received at Apia Police and then subsequently analysed by SROS was that material recovered from the accused on the 26th December 2017. The way in which the police investigation was carried out at Faleata, the recording of the evidence, the chain of custody and the safekeeping of the evidence in the exhibits room at Faleata raise these doubts in my mind.

[55] According, I am left in reasonable doubt that on the evidence before this Court, that the material that was in the possession of the accused was cannabis substances or seeds of prohibited plant namely sativa L as charged.

[56] For the foregoing reasons therefore, I find that the prosecution has failed to prove the charges beyond a reasonable doubt and the charges are accordingly dismissed.

Supreme Court of Samoa

Police v Pesa [2018] WSSC 129 (6 December 2018)