Police v Motootua [2018] WSSC 6 (23 January 2018)

SUPREME COURT OF SAMOA
Police v Motootua [2018] WSSC 6

Case name:	Police v Motootua
Citation:	[2018] WSSC 6
Decision date:	23 January 2018
Parties:	POLICE v THEODORE MOTOOTUA male of Poutasi Falealili, Se’ese’e and Brisbane Australia.
Hearing date(s):	16 January 2018
File number(s):	S2059/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Prosecution has not proved the two charges against the accused beyond reasonable doubt. The charges are therefore dismissed.
Representation:	F Ioane for prosecution A Lesa for accused
Catchwords:	elements of the charges – importation of narcotics – possession of narcotics –
Words and phrases:
Legislation cited:	Narcotics Act 1967, s.7 and s 10 (2)
Cases cited:	Attorney General v Fuaifale [2016] WSCA 3; Chea v R [2016] NZCA 207 Police v Chan Chui [2007] WSSC 72; Police v Lilo [2017] WSSC 54. Police Ofoia [2015] WSSC 67; R v Cox [1890] 2 NZLR 275, 278
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

THEODORE MOTOOTUA male of Poutasi Falealili, Se’ese’e and Brisbane Australia.
Accused

Counsel:
F Ioane for prosecution
A Lesa for accused

Hearing: 16 January 2018

Submissions: 19, 22 January 2018

Conclusion: 23 January 2018

Written Judgment With Reasons: 24 January 2018

JUDGMENT WITH REASONS

The charges

1. The accused stood trial on two charges, namely, possession of narcotics pursuant to s.7 of the Narcotics Act 1967 and importation of narcotics pursuant to s.10 (2) of the Act.

The elements of the charges

Possession narcotics

2. The elements of the charge of possession of narcotics was explained in R v Cox [1890] 2 NZLR 275, 278, where Hardie Boys J, in delivering the judgment of the New Zealand Court of Appeal, said:
   • “Possession involves two, not those 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 described as the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of awareness by the accused that the substances are in his possession (which is often inferred or presumed); and an intention to exercise possession.”
3. The above passage from R v Cox [1990] NZCA 13; [1990] 2 NZLR 275, 278, has been cited and applied in a number of Samoan cases, for example, Police v Chan Chui [2007] WSSC 72; Police Ofoia [2015] WSSC 67; Attorney General v Fuaifale [2016] WSCA 3; Police v Lilo [2017] WSSC 54.
4. The two elements of the charge of possession of narcotics that the prosecution has to prove beyond reasonable doubt are therefore:
   • (a) firstly, actual or potential physical custody or control of a narcotic which is the physical element, and
   • (b) secondly, knowledge and intention, that is to say, knowledge in the sense of awareness by the accused that the substances are in his possession (which is often inferred or presumed) and an intention to exercise possession.

Importation of narcotics

5. In terms of s.10 (2) of the Act, it is an offence for any person to import any narcotic described in the First Schedule except pursuant to a licence granted by the chief executive officer of the Ministry of Health.
6. The elements of importation of a drug was explained in the case of Chea v R [2016] NZCA 207 where the New Zealand Court of Appeal said at para [93]:
   • “The act of importing involves arranging for goods to be sent to New Zealand. It extends until the goods reach the delivery address when they were dispatched. In this case, it extends until the goods were delivered either at that New Zealand address, or at an alternative point in response to a request to vary the point of delivery made by or on behalf of the person or persons who had stipulated the original delivery address. Where more than one person is jointly charged with importing, it is not necessary for the Crown to prove that all of those jointly charged were involved in all stages of the importation. Each defendant has to intentionally take some material part in the importation knowing that that is what they were doing”.
7. Further on at para [76], the Court of Appeal said:
   • [The] Judge clearly and correctly stated the three elements the jury needed to find were proved beyond reasonable doubt: that Mr Dao imported a controlled drug, that he knew that it was a controlled drug, and intended to import that controlled drug”.
8. On the basis of Chea v R [2016] NZCA 207, paras [73] and [76] and s.10 (2) of the Act, the four elements of the charge of importation of a narcotic that the prosecution has to prove beyond reasonable doubt are:

(a) the accused imported a narcotic,

(c) the accused knew that it was a narcotic,
(d) the accused intended to import that narcotic, and
(e) the accused had no licence granted by the chief executive officer of the Ministry of Health to import that narcotic.

The evidence

9. To prove the charges again the accused, the prosecution called four witnesses, namely, constable Maimoana Kreieg the police photographer who took the photographs for this case, Hugo Tauauve’a (Hugo) a customs officer, Teueli Masoe (Teueli) an assistant customs officer, and corporal Aasa Afoa the police investigating officer in this matter. The prosecution relied mainly on the evidence of the witnesses Hugo and Teueli.
10. As defence counsel indicated at the start of the trial that the accused does not dispute that the substances found in the container in question were marijuana, there was no real for the prosecution to call evidence to prove that those substances were marijuana.
11. The witness Hugo testified that on Monday 11 December 2017, he and Teueli inspected a personal effects 20 foot container shipped from Brisbane, Australia, to the accused in Samoa. Teueli was doing the listing of the items in the container while he was inspecting the vehicle, boxes, and other personal effects that were inside the container. He then came across a silver toolbox. When he opened the toolbox, he found, amongst other things, a white plastic bottle that looks like a tablet bottle. When he opened this bottle, he saw a rolling paper (pepa taai). When he pulled out the rolling paper from inside the bottle, he saw what appeared to be marijuana. The accused’s brother Lomia and his cousin Sharlene were present during the customs inspection of the container. Hugo testified that Lomia said to him, that is marijuana. The police K9 unit was then called in to assist with the customs inspection.
12. At the time the marijuana substances were found in the toolbox, the accused was not present as he had gone to the IMEX money transfer to withdraw money to pay for the duty on the container. He was called on the phone by his cousin Sharlene that marijuana had been found by the customs officers in the toolbox inside the container. When the accused returned to the customs yard where the container was being inspected, Hugo asked him if the toolbox was his, he replied yes. When asked whether he is aware of the contents of the toolbox, he said yes. When Hugo showed him the white plastic bottle that was inside the toolbox he said that that had been there for a long time (ua leva ona iai le mea ga). When Hugo further asked who packed the container he replied it was him, his brother Lomia, and Lomia’s friends. When asked what is inside the bottle he said marijuana.
13. The evidence given by the witness Teueli is generally consistent with the evidence of Hugo. Even though there were minor inconsistencies in the evidence of the two witnesses, this is not significant. Often witnesses do not have identical recollections of the same incident.
14. According to the testimony of the accused, he and his brother Lomia reside in Brisbane, Australia. Before they came to Samoa for Christmas last year, they prepared a container to ship a vehicle and other personal effects to Samoa. This was on 10 November 2017. Six people including the accused, his brother Lomia, Dan a friend of Lomia, and some family members. The accused testified that the toolbox in question was used by the various people who packed the container during the packing process. This was to dismantle bedframes amongst other things. He did not put the toolbox in the container but was aware that it had been placed in the container as it was his intention to bring the toolbox to Samoa for his family members use. After the container was packed it was locked and it was removed from his home in Brisbane on 17 November 2017 by the shipping company that shipped the container to Samoa.
15. The accused further testified that on 1 December 2017, prior to travelling to Samoa, he met Dan the friend of his brother Lomia in a shop in Brisbane. He spoke to Dan who said that he (Dan) had put something in the container. He did not pay any serious attention to the comments by Dan as he did not think that Dan was being serious.
16. The accused arrived in Samoa on Sunday 10 December 2017. On Monday 11 December 2017 his brother Lomia and his cousin Sharlene went to the customs yard at Matautu to clear the container whilst he went first to the IMEX money transfer to withdraw money to pay the duty on the container. Whilst he was doing this he received a phone call from Sharlene that the customs officers had found marijuana in the toolbox. It then occurred to him that this might have been what Dan meant when he said to him in a shop in Brisbane that he had put something in the container.
17. The accused also testified that when he returned to customs the prosecution witness Hugo asked him if the container belongs to him and he said yes. When Hugo asked him if he was aware of the contents of the toolbox, he also said yes as he knew that his tools were in the toolbox. When Hugo showed him the plastic bag containing a white plastic bottle he said that the plastic bag has been there for a long time. He explained that he said this because he normally uses the plastic bag to store his vehicle light bulbs. When shown the suspected substances he said it is marijuana. However, he denied any knowledge of the contents of the bottle.
18. The accused also said in his evidence that he informed the witness Hugo as well as corporal Aasa Afoa the police investigating officer about being told in Brisbane by a friend of Lomia that he had put something in the container. The accused further said that the first time he had seen the white plastic bottle containing the marijuana was when it was shown to him by the witness Hugo.

Evidence applied to the elements of the charges

(a) Possession of narcotics

19. In relation to the first element of the charge of possession of narcotics, namely, that the accused must have had actual or potential physical custody or control of the marijuana substances, the evidence adduced by the prosecution shows that the marijuana substances were found in the accused’s container. This was not disputed by the accused in his evidence. So the accused was in physical custody of those substances. I am therefore satisfied that the prosecution has proved the first element of the charge of possession of narcotics.
20. In relation to the second element of the charge, namely, knowledge in the sense of awareness by the accused that the marijuana substances were in his possession (which is often to be inferred or presumed) and an intention to exercise possession, the prosecution relies primarily on circumstantial evidence. The prosecution submits that the accused was one of the six people who packed the container in Brisbane; the accused is the owner of the container shipment; and the accused is the owner of the toolbox in which the marijuana substances were found.
21. The accused, on the other hand, said in his evidence that the toolbox in which the marijuana substances were found was used by the various people who packed the container in Brisbane to dismantle bedframes amongst other things. He was aware of the contents of the toolbox as he normally put his tools in this toolbox. He was also aware of the plastic bag which contained the white plastic bottle in which the marijuana substances were found as he normally uses the plastic bag to store his tools. However, he was not aware of the white plastic bottle that contained the marijuana as he only saw for the first time when it was shown to him by the witness Hugo at the customs yard here in Apia.
22. The accused also said that he did not put the toolbox in the container but he was aware that it had been placed in the container as it was his intention to bring the toolbox to Samoa for his family members in Samoa to use. He also said that after the shipping company had removed the container from his home in Brisbane for shipment to Samoa, he met Dan the friend of his brother Lomia in a shop in Brisbane and Dan said to him he had put something in the container but he did not pay any serious attention to Dan’s comment.
23. It appears from the evidence of the accused that he did not put the marijuana substances in the container and he was not aware of any marijuana substances in the container until they were found by the customs officers in Apia in a white plastic bottle that was in a plastic bag inside the toolbox. He had never seen this plastic bottle before until it was shown to him by the witness Hugo.
24. After giving careful consideration to the evidence given by the accused, I am left with a reasonable doubt whether the accused had any knowledge of the marijuana substances that were found in the container or had any intention to exercise possession of those substances. The prosecution has therefore not proved the second element of the charge of possession of narcotics.

(b) Importation of narcotics

25. In relation to the first element of the charge of importation of narcotics, namely, that the accused must have imported a narcotic, the Court in Chea v R [2016] NZCA 207, para [73], said, insofar as relevant:
    • “The act of importing involves arranging for goods to be sent to New Zealand. It extends until the goods reach the delivery address when they were dispatched”.
26. In this case, there is no evidence to show that the accused was involved in arranging for the marijuana substance to be shipped from Brisbane to Samoa. The evidence by the prosecution is that the container shipment belonged to the accused; the toolbox found inside the container belonged to the accused; the plastic bag which contained the white plastic bottle in which the marijuana were found belonged to the accused. The prosecution evidence is also that six people, including the accused, were involved in packing the container in Brisbane before it was shipped to Samoa. There is no direct evidence that the accused was actually involved in arranging for the marijuana substances to be shipped in the container to Samoa.
27. The evidence given by the accused is that six people including himself, his brother Lomia, Lomia’s friend by the name of Dan, and some of his relatives in Brisbane were involved in packing the container. The toolbox in which the marijuana substances were found were used by various people who packed the container to dismantle bedframes amongst other things. He did not put the toolbox into the container but he was aware that it had been placed in the container as it was his intention to bring the toolbox to Samoa and leave it in Samoa for the use of his family members. On 1 December 2017 before he left Brisbane for Samoa, he met Dan, who was one of the six people involved in packing the container, in a shop in Brisbane. Dan said to him that he had put something in the container but he did not pay any serious attention to what Dan said. It was only when the marijuana substances were found by the customs officers in Apia that his mind went back to what Dan had said to him in Brisbane.
28. On all of this evidence, I am not satisfied that the prosecution has proved the first element of the charge of importation of narcotics.
29. As to the second element of the charge, namely, that the accused knew that the substances were narcotics, the evidence given by the accused shows that he did not put the marijuana substances into the container or was aware that marijuana substances were in the container until the container was opened and inspected by the customs officers in Apia. The prosecution submits that the accused knew that marijuana were put in the container in Brisbane and shipped to Samoa and I should disbelieve the accused’s evidence. However, there is insufficient reason for me to do so.
30. I am therefore not satisfied that the prosecution has proved the second element of the charge of importation of narcotics.
31. As to the third element of the charge, namely, that the accused intended to import the narcotics into Samoa, there is no evidence of such an intention on the part of the accused. So I am also not satisfied that the prosecution has proved the third element of the charge.
32. In relation to the fourth element of the charge, namely, that the accused had no licence granted by the chief executive officer of the Ministry of Health to import narcotics, there is no evidence whatsoever adduced by the prosecution on this point. I am therefore also not satisfied that the prosecution has proved this element of the charge of importation of narcotics.

Conclusion

33. The prosecution has not proved the two charges against the accused beyond reasonable doubt. The charges are therefore dismissed.

CHIEF JUSTICE