Police v Manuleleua [2018] WSSC 87 (20 June 2018)

IN THE SUPREME COURT OF SAMOA
Police v Manuleleua [2018] WSSC 87

Case name:	Police v Manuleleua
Citation:	[2018] WSSC 87
Decision date:	20 June 2018
Parties:	POLICE (Informant) and UILI SALKELEUA MANULELEUA, male of Vaimoso & Tafaigata Prison (Accused)
File number(s):	S701/18 & S769/18
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael 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. - You are remanded in custody to Wednesday 4 July 2018 at 12.30pm for Pre-Sentence Report, Summary of Facts in terms of your guilty plea to escape and for sentencing.
Representation:	F Ioane for Prosecution Accused self-represented
Catchwords:
Words and phrases:	possession narcotics namely cannabis substances, loose leaves of marijuana, accused was brought to the Traffic Section at the Apia Police Station by a taxi driver.
Legislation cited:	Narcotics Act 1967,
Cases cited:	Court of Appeal in Attorney General v Fuaifale [2016] WSCA 3, New Zealand Court of Appeal case of R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 and R v Warner [1969] 2 AC 256, Lord Morris of Borth-y-Gest.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

UILI SALKELEUA MANULELEUA, male of Vaimoso & Tafaigata Prison
Accused

Counsel:
F Ioane for Prosecution
Accused self-represented

Sentence: 20 June 2018

JUDGMENT

The Charge:

1. The accused is charged that at Apia Police Station on the 8th April 2018, he knowingly has in his possession narcotics namely cannabis substances, loose leaves of marijuana weighing at 11.5 grams contrary to section 7 and 18 of the Narcotics Act 1967.

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...

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:

“[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 Onus of Proof:

4. The onus of proof is on the prosecution to prove each element of the charge beyond a reasonable doubt.

The Prosecution Case:

5. The prosecution case is that on the 8th April 2018 at Apia Police Station, the accused had in his possession marijuana leaves. Prosecution called seven (7) witnesses. These were Philip Reti of the Scientific Research Organisation of Samoa (“SROS”), Constable Vaimoana Krieg, Constable Ioakimo Yandall, Constable Siusei’a Tauauve’a, Constable Elohi Stanley, Detective Constable Alapati Moafanua and Constable Evile Ekueni.
6. The prosecution evidence is that on the 8th April 2018, the accused was brought to the Traffic Section at the Apia Police Station by a taxi driver. According to Constable Ioakimo Yandall, this was between 2.00am and 3.00am. Constable Ioakimo Yandall was directed to take the accused to what Constable Yandall described as the Sergeant’s room. He was accompanied by Constable Tauauve’a from Faleata Police Station.
7. There in the Sergeant’s room, the accused was asked to empty his belongings and he took out Samoan tobacco (tipi) and money. The tipi was marked A and B in exhibit P2. He was then asked to take off his clothes which he did. He first took off his t-shirt and he placed it beside himself on his left side. He was then asked to take off his shorts, which he did and also placed it to his left on top of his t-shirt. Prosecution evidence described that the clothes were not folded but placed on the ground, the shorts on top of the t-shirt.
8. Constable Evile Ekueni then entered the room and Constable Yandall who was called to assist with attending on a breathalyser evidential machine left the room. When he entered the room and after Constable Yandall left, Constable Tauauve’a said the accused was suspected of burglaries at the Faleata area including CCK. He also described in cross-examination peculiar movements with the accused left hand as he took off his clothes and his demeanor or movements that raised suspicions for him. After Constable Ioakimo left, he then went to the accused clothes, searched the shorts including the pockets and then as he picked up the t-shirt, felt an item in the t-shirt. He asked the accused what it was and the accused said he didn’t know. He then took out of the t-shirt an item wrapped in newspaper which he opened and suspected was marijuana. According to Constable Ekueni, the accused then denied any knowledge of the newspaper or its contents. The items alleged to have been in the possession of the accused were identified as those shown in exhibit P2.
9. Constable Yandall returned approximately 5 minutes later at which point the accused was being led out of the room and now clothed.
10. Constable Tauauve’a said that he gave possession of the items to Elohi Stanley. Constable Elohi Stanley in his evidence said that he was the Investigating Officer for this matter and he was involved with the caution interview of the accused. He confirmed in his evidence that he took possession of the material and on the 8th April 2018 which he identified as shown in exhibit P2. It was then stored in the Police Exhibits Room which only he and the Exhibits Room leader can access. On the 9th April 2018, he then gave the exhibits to Detective Constable Alapati Moafanua.
11. In his evidence, Constable Moafanua said that on the 9th April 2018, Constable Stanley handed possession to him of material wrapped in newspaper suspected to be marijuana, a plastic bag, black comb and $29.50. He then packed and labelled the exhibits writing the name of the accused and labelling it with reference numbers EXHDS/2018-63 and EXHREF-2018/70. The exhibits were then placed in the Exhibits Room. On the 25th May 2018, he then delivered the exhibit to Philip Reti of SROS.
12. Philip Reti tendered the Certificate of Analysis Exhibit P1. He said that on the 25th May 2018, he personally received from Police Constable Moafanua one sealed white envelope marked “POLICE v EXHDS/2018-63. EXHDS REF: 2018/70.” The contents of the item were analysed on the 26th May 2018 and the results showed:
    

“White envelope marked “POLICE v EXHDS/2018-63. EXHDS REF:2018/70. Representative sample(s) from suspected loose leaf marijuana leaves weighing at 11.5 grams.”-contained loose leaf fragments with seeds attached to it, weight of 0.49 gram, contained resin was cannabis plant material.”

13. The accused elected not to give evidence or call evidence.

Discussion:

14. The prosecution must prove two elements beyond a reasonable doubt, namely, one, the accused is in actual or potential physical custody or control and two, the mental element, and which may be called the element of mens rea which 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.
15. I accept the prosecution evidence of Constables Tauauve’a and Ekueni that the accused was in actual possession of the cannabis plant material. I accept as credible and reliable their evidence that the cannabis material was found in the accused t-shirt as it lay on the ground. I also find that it was the accused himself that placed the cannabis plant material in his t-shirt as he removed his items of clothing. There is no other reasonable or rationale explanation for the presence of that material contained in the newspaper being found in his clothing which the accused himself removed and placed on the floor. There was no cross-examination alleging that the newspaper or its contents were placed there by any of the Police Officers and it was only they that were in that room that early morning when the newspaper and its contents were found after the removal of his clothing.
16. In relation to the second element, I am also satisfied that the accused had the relevant mens rea or knowledge. When asked to empty his pockets by Constable Yandall, the accused took out only the Samoan kipi and other items but not the cannabis plant material that was later found. I also accept the evidence of Constable Tauauve’a that his suspicions were raised by the actions, movement and demeanor of the accused as he took off his clothes. I infer from his actions his intention to conceal the cannabis plant material knowing that the material was unlawful cannabis material and he was continuing to exert and assert his control over the cannabis material. I am satisfied also that the second element has been established.
17. In terms of the suspected material being cannabis plant material, I am satisfied on the Prosecution chain of custody evidence that the material that was seized from the accused following his arrest was that material subsequently analysed by Philip Reti and found to be cannabis plant material as set out in exhibit P1 and that it weighed 11.5 grams.
    

Result:

18. 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.
19. You are remanded in custody to Wednesday 4 July 2018 at 12.30pm for Pre-Sentence Report, Summary of Facts in terms of your guilty plea to escape and for sentencing.

JUSTICE CLARKE