Police v Langkilde [2020] WSSC 57 (20 February 2020)

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Case name:	Police v Langkilde

Citation:	[2020] WSSC 57

Decision date:	20 February 2020

Parties:	POLICE v FILIPO LANGKILDE, male of Satapuala.



File number(s):	S1453/18.S1454/18/S1455/18.S1524/18.

Jurisdiction:	CRIMINAL

Place of delivery:	Supreme Court Samoa Mulinuu

Judge(s):	Justice Fepulea’i Ameperosa Roma

On appeal from:

Order:	For the foregoing reasons, I have reached the following conclusions: (i) On the charge of being in possession of narcotics, namely dry marijuana leaves contrary to Section 7 and 18, Narcotics Act 1967 – (Information S1455/18), I find the accused guilty of the charge; (ii) On the charge of being in possession of narcotics, namely Sativa L (20 seeds of marijuana) contrary to Section 6(b) and 18, Narcotics Act 1967 – (Information S1454/18), I find the accused not guilty of the charge; (iii) On the charge of being in possession of 12 gauge ammunition without a permit contrary to Section 7(1)(4), Arms Ordinance 1960 – (Information S1453/18), I find the accused guilty of the charge; (iv) On the charge of being armed with a dangerous weapon, without being so armed for a lawful purpose contrary to s25, Police Offences Ordinance 1960 – (Information S1453/18), I find the accused guilty of the charge. The accused is remanded on the same bail conditions to Monday 9 March 2020 at 12.30pm for a pre-sentence report and sentencing on the 3 charges which I have found proven.

Representation:	Q. Sauaga for Prosecution T L Lealiifano for Accused,

Catchwords:

Words and phrases:	Possession of Narcotics of dry marijuana leaves Possession of Narcotics of 20 seeds of marijuana. Possession of ammunition without a permit and Being Armed with a Dangerous Weapon.

Legislation cited:	Narcotics Act 1967 s.7 & 18. & s.6(b) & 18(2)(a), Arms Ordinance 1960 s. 7(1)(4), and Police Offences Ordinance 1961 s 25

Cases cited:

Summary of decision:

(i) S1455/18 - Knowingly being in possession of narcotics, namely dry marijuana leaves (s7 & 18), Narcotics Act 1967)

(ii) S1454/18 - Knowingly being in possession of narcotics, namely Sativa L (20 seeds of marijuana) s6(b) & 18(2)(a), Narcotics Act 1967)

(iii) S1524/18 - Possession of 12 gauge ammunition without police authorization (s7(1)(4), Arms Ordinance 1960);

(iv) S1453/18 - Being armed with a dangerous weapon namely a kitchen knife, not being so armed for a lawful purpose (s25, Police Offences Ordinance 1961)

[2] The 2 narcotic related charges are brought under sections 6(1)(b) and 7(a) Narcotics Act 1967. Section 6(1)(b) states:

[3] Section 7(a) states that “No person shall (a) knowingly be in possession of or attempt to obtain possession of a narcotics.”

[4] The elements of “possession of narcotics” was explained in R v Cox [1890] NZLR 275 where Hardie Boys, J, in delivering the judgment of the Court of Appeal said: -

[6] Therefore to sustain the charge of possession of narcotics under s7(a) prosecution must prove beyond reasonable doubt the following 2 elements:

[7] Correspondingly in respect of the charge of possession of seeds of a prohibited plant under s6(1)(b), prosecution must prove beyond reasonable doubt:

[9] Subsection (3) states – “A permit under this section may be issued by the Arms Officer on payment of the fee prescribed in Schedule 1.

[10] And subsection (4) states – “A person who breaches or attempts to breach this section commits an offence and is liable to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 2 years or both, and the burden of proving the existence and terms of any such permit lies on the defendant.”

[11] To prove the charge under this section, prosecution must satisfy the Court beyond reasonable doubt of the following –

[12] In relation to the second element, the burden of proving the existence and terms of any such permit lies on the accused.

[14] To prove the charge under this section, prosecution must satisfy the Court beyond reasonable doubt that:

[15] In relation to the second element, the onus is on the accused to prove that the purpose he was so armed was lawful.

[16] Prosecution called 7 witnesses, all police officers. They were Sergeant Frederick Titimaea Pupi, Inspector Sione Menefata, Constable Tapumanaia Nofoaiga, Constable Mautofu Aiono, Constable Rudolph Ho Chee, Constable Asomau Seti Leitupo, Oata Leiataua and Constable Fialupe Poutoa. Apart from Constable Rudolph Ho Chee, all were at the Faleolo Post on the evening of 27 September 2018. Some were on duty, others had camped there to assist with security during the Pacific Judicial Meeting held here in Apia.

[17] Prosecution evidence is that sometime that evening, their attention was drawn to a call from outside saying “Leoleo, omai kakou kau.” It seemed to come from the road next to the police compound which leads inland to the hospital and Aana No.1. College. In 2 police vehicles, they drove out to check.

[18] Sergeant Pupi was in charge of duty that evening. His evidence is that when they heard the call, he informed their Senior ranked officer Sergeant Sione Menefata, now an Inspector who instructed that Sergeant Pupi and others take the lead and they would follow as backup. Along with Officers Mautofu, Tapumanaia and Taeao, they drove out to check. They parked a distance from a vehicle that was stationed there with its head lights on and from which he was able to see the accused with 2 knives, one in each hand.

[19] By that time, their Senior had arrived and he spoke to the accused about putting the knives down. He told the accused 3 times to put down the knives or he would instruct police to grab something for their own protection. The accused put the knives down before the officers approached him and brought him in handcuffs to the Faleolo Post. Oata drove the accused’s car to the office. The accused was held in the custody room and when Oata arrived, their Senior was informed and they were instructed to bring the accused so that he was present when the vehicle was searched. The accused was brought out accordingly when the search of the vehicle was conducted.

[20] Sergeant Pupi’s further evidence is that Oata conducted the vehicle search. He found loose marijuana leaves and 20 marijuana seeds, and 2 knives. They also took from the accused a waistbag which they, later the same evening, brought with the accused to the main Police headquarters in Apia. There, the bag was searched in the presence of the accused before he was taken to the watch house, and inside were 12 gauge ammunition.

[21] Sergeant Pupi was also the Investigating Officer. As the accused was intoxicated, he came back the next morning to interview him. The accused’s statement under caution was by consent, admitted in evidence as Exhibit P1.

[22] Under cross examination, Sergeant Pupi denies that they were armed with rocks and sticks when they first attended the call. He maintains that the accused was brought out and stood next to his vehicle when it was searched.

[23] Inspector Menefata’s evidence is that he also heard the call that evening. He instructed Sergeant Pupi and others on duty to take the lead and they would follow. Upon arrival, they were able to see the accused from the lights of his car which was stationary as he kept moving (“fealua’i”) along the road.

[24] He called the accused that they were the police and to come and talk. Instead the accused asked why the youths from Satapuala were being arrested. Inspector Menefata told the accused 3 times to put the knives down or he would instruct police to arm themselves with sticks and stones for their safety. The accused lowered the knives before police approached and apprehended him.

[25] Under cross examination, Inspector Menefata maintains that he saw the accused holding and showing them 2 knives (“la e u’u ma faalālā mai naifi”). When asked if he attempted to strike the accused, he replied that it was when the accused walked towards him with knives that he grabbed a stick for his safety whilst still calling the accused to put his knives down. He had no intention to hit him with the stick.

[26] Constable Nofoaiga was also on duty with Sergeant Pupi. They attended the call together with Officers Taeaomanino and Mautofu in the same vehicle. He confirms that the accused had 2 knives in his hands when they arrived and that it was only after Inspector Menefata asked him 3 times and threatened that police would arm themselves with stones or sticks that he finally threw the knives in the car. The accused tried to resist when police apprehended him.

[27] Constable Aiono was also on night shift and attended the call along with Sergeant Pupi. Inspector Menefata and the others arrived later when the accused still had the knives. When Inspector Menefata told them to arm, the accused threw his knives inside his car before they approached and apprehended him. The accused tried to resist arrest.

[28] Constable Aiono was not present when the accused’s vehicle was searched. As to the bag, his evidence is that it was searched at Faleolo, in which they found ammunition. The bag was brought with the accused to Apia where it was again searched.

[29] Constable Asomau was in the group of officers who went out and apprehended the accused. He says the accused was intoxicated. His evidence is consistent with the other officers’ evidence as to the knives the accused had and the exchange between Inspector Menefata and the accused, before he put the knives away and police took him in. As to what happened at the Police post, he says that the accused was interviewed then kept in the cell until he was sober.

[30] Oata appeared under a warrant issued by the Court. He is now studying at Malua Theological College, but had been with the Ministry of Police from 2016 – 2018 as a Constable. Earlier on 27 September 2018, they took in the accused’s son Jonathan and brought him to Apia Police. He was on duty again in the evening and attended the call with the other officers. They found the accused with 2 knives in his hand. He was calling out for them not to approach him. The accused put the knives in his car after 3 warnings from Inspector Menefata and before police moved in to arrest him.

[31] Oata also says in evidence that he was instructed by Inspector Menefata to drive the accused’s vehicle to the Police Post. The drive took about 4 minutes. At the station, the accused was brought out to the garage and stood next to his vehicle as Oata carried out its search. He was told that they were going to search the vehicle before the lights inside were turned and the search began from the dashboard, the small tray where money is usually kept, between the seats to underneath where the driver and passenger’s feet rest. In a box under the steering wheel, a newspaper wrapping was found. It was opened and shown to the accused. Oata says that in it were marijuana branches and leaves. These were handed to Constable Fialupe Poutoa.

[32] Under cross examination, Oata says that nothing happened when he drove the accused’s vehicle from where they found him to the Police Station. He says that no photos were taken of the substances but that they were shown to the accused who just smiled and said “talofa e i si leoleo lapo’a lea.”

[33] Constable Poutoa was also on duty at Faleolo. Her evidence is that after police attended the call and brought the caused to the station, he was brought out when his vehicle was searched. She confirms that Oata carried out the search and when the substances were found, they were handed to her by Oata. She is turn, handed them over to Sergeant Frederick Pupi. When asked what Oata passed onto her, she replied, it was marijuana wrapped in newspaper. She did not say if they were leaves, joints, branches or seeds.

[34] Constable Ho Chee’s involvement was as an Exhibit Officer. His affidavit was admitted as Exhibit P3. He confirms receiving from Sergeant Frederick Pupi on the morning of 28 September 2018 a plastic bag with a newspaper wrapping containing loose dry marijuana leaves and marijuana seeds; and also 2 knives. He separated the marijuana seeds and leaves and packed them in 2 separated zip lock bags. He counted the marijuana seeds and weighed the leaves. The quantity of the marijuana seeds was 20 and the dry leaves weighed 0.5 grams. He then labelled the substances EXHDS/2018-128 as Exhibit number and EXH REF 2018-148 as the Exhibit reference number.

[35] After labelling he stored the Exhibits inside the Exhibit room on the same day. On 6 February 2020, he prepared samples for SROS analysis and delivered them personally to Phillip Reti of SROS on 7 February 2020. Constable Ho Chee also says that he was given 2 knives by Sergeant Pupi which he also stored in the Exhibit room. Both were admitted as Exhibit P4.

[36] Tendered by Consent as Exhibit P2, the report was prepared by SROS scientist Phillip Reti and dated 7 February 2020. He confirms receiving from constable Ho Chee substances with the label Police v EXHDS/2018-128 EXH REF 2018/148. They contained:

[38] In his cautioned statement admitted as Exhibit P1, the accused denies that he called out to police. But he makes the following admissions during the interview:

[39] The accused elected to give evidence. He was the only defence witness. He is now 53 years of age. He has 6 children from a previous relationship. He is well educated and has previously been employed with Pacific Commercial Bank now Westpac Bank, Pesega College, Ministry of Police and most recently with Samoa Airport Authority until this incident. Whilst with Police, he worked with the CID until he was terminated for charges that landed him in jail.

[40] On the day of the incident, he had gone out to check on his plantation after work. On his way he bought 3 cans of Busch Ice beer. He found that someone had stolen from his plantation and came back seaward looking for anyone who might have been responsible.

[41] He does not dispute that later in the evening, police came to where he was and apprehended him. He does not also dispute that he had a knife in his hand but says it was just one; and the reason why he reached for it was because someone whom he later says was Sione Menefata had struck him first with a stick while he was talking on his phone. It was after he saw uniformed officers behind Inspector Menefata that he put his knife down.

[42] The accused’s further evidence is that when police brought him to the station, he was held for about 1 hour and 20 minutes before he was brought to the main Apia Office. As to the vehicle search, he denies that he was brought out and stood beside the vehicle when it was searched. He says that only when he was brought out to be taken to the Apia headquarters did police show him a plastic bag and said “o mea ia na maua i totonu o lau taavale”.

[43] Regarding his waist bag, the accused says that it was always with him and it was him that gave it to police before he was held at the Apia headquarters. He was aware of the ammunition inside and says that they were used in his job at Airport Authority to frighten birds before planes landed; that he had them when he went to his plantation and was not able to give it to someone before he was taken in by police.

[44] Asked about the marijuana, he disputes the accuracy of what is stated in the cautioned statement and says that he told police that he did not understand but had just returned from the plantation. Asked if there were any marijuana seeds in the vehicle, his reply was ‘no’.

[45] Under cross examination, the accused maintains that he was not present when his vehicle was searched and he did not know about the substances that were found inside. He accepts that the ammunition was found in his possession. He also accepts that he held one knife but it was only after the first person that got to him struck him with a stick. On the minor inconsistencies between his testimony and cautioned statement, he says that all he told police was he had just come from the plantation and did not understand the rest. He let the police continue with their work, he signed the statement when asked to but thought to tell his side of what happened when the allegations came before the Court.

[46] Prosecution evidence is that the vehicle was searched by Oata in the presence of the accused. Oata’s evidence is that in a box under the steering wheel, he found a wrapped newspaper which contained marijuana branches and leaves. The substances were handed to Constable Fialupe who in turned handed them to Sergeant Pupi. There is no evidence by Sergeant Pupi that he was handed anything but there is evidence of Constable Ho Chee that he received from him the substances which he then separated between dry leaves and seeds before they were personally delivered to SROS for testing. The dry leaves weighed 0.5 grams and the 0.28 grams of samples were confirmed by SROS to be of marijuana leaves.

[47] Despite the accused’s denials, I accept prosecution evidence that the vehicle was searched in his presence. I also accept that the substances were found in his vehicle. When asked in his cautioned statement where he got the marijuana substances found in his vehicle, he reply was “E aumai i uta i lou maumaga, lea e feoai mai ai le tupulaga o le matou nuu. E oo atu ma avatu ia te a’u e su’e ai sa’u tupe ae avatu se sikaleti pall mall ma latou, peitai la ou te faaaogaina ae ou te aveina i tamaiti ia e faia a’u galuega.” That detailed explanation could only have come from the accused.

[48] I also do not accept his version that when he was interviewed, he just let the police do their work and thought to give his version when the allegations against him came before the Court. The accused has a history of previous offending that were investigated by police and brought before the Courts. Prior, he had been a Police officer himself and worked in the CID. He was well aware of the process and the rights accorded to an accused. Against that background, he would not have given the statement under caution and made admissions therein had it not been on his own free will.

[49] On the evidence I am satisfied beyond reasonable doubt that the accused had actual custody of the dry marijuana leaves that was wrapped with a newspaper found in his vehicle. I find therefore proven this element of the charge.

[50] I am also satisfied that the accused knew about the dry marijuana leaves found in his vehicle. Despite suggestion by Counsel for the accused in cross examination that police could have placed the substances in the vehicle, I am satisfied that no one else but the accused knew about the substances that were found in his vehicle.

[51] Again his explanation in his cautioned statement when asked about the marijuana found in his car which I accept, is strong evidence that he knew about the dry marijuana in his possession and intended to exercise possession over the substances. I also find proven this element of the charge.

[52] I am satisfied that prosecution has proven this charge beyond reasonable doubt.

Possession of Narcotics, namely Sativa L(20 seeds of marijuana) under Section 6(b), Narcotics Act 1967.

[53] Again prosecution rely on the evidence of the newspaper wrapping found in the vehicle, the contents of which were passed onto Constable Fialupe and Sergeant Pupi, and which Constable Ho Chee received from Sergeant Pupi and made samples that were tested and confirmed by SROS to be seeds of a marijuana plant.

[54] Whilst I accept that the newspaper wrapping contained dry marijuana leaves, I am not satisfied that it also contained marijuana seeds. The clear evidence of Oata is that the newspaper contained marijuana leaves and branches. He maintained that also under cross examination. The evidence of Constable Fialupe who received the substances from Oata was general. When asked what the substances were, she replied marijuana. She did not say if they were leaves, branches, joints or seeds.

[55] Whilst there is evidence from Sergeant Pupi that 20 marijuana seeds were amongst the substances found in the vehicle and Constable Ho Chee confirms having received from him the seeds, Oata who conducted the search was clear and maintained that the contents of the newspaper wrapping were dry marijuana leaves and branches. Even Constable Fialupe who received the substances from Oata and who according to the evidence, gave them to Sergeant Pupi did not say if the substances included seeds. The accused when asked in his evidence in chief if there were any marijuana seeds in his vehicle replied “No.” In his cautioned statement, he was asked to explain in general the marijuana found in the vehicle. He was never asked specifically about “marijuana seeds.”

[56] In my view, there is a major gap in the evidence relating to whether the substances found in the vehicle also contained marijuana seeds. The fact that no photos were taken of the substances immediately after they were discovered, has not helped the prosecution’s case.

[57] I am not satisfied beyond reasonable doubt that the accused had actual or potential custody of 20 marijuana seeds. I find that the prosecution has not proven this element of the charge.

[58] Having found that prosecution has not proven the first element of the charge, it follows that it is not necessary that I consider this second element.

[59] I am not satisfied that prosecution has proven this charge beyond reasonable doubt.

[60] Whether or not the accused’s waist bag was taken off him or given by him to police and whether it was searched at Faleolo or Apia, it is not disputed that it contained ammunition. The evidence is unclear as to the quantity of ammunition but clearly, the accused knew that he had them. He acknowledges that in his testimony and cautioned statement and tries to explain the use that they were intended for. I find therefore proven this element of the charge.

[61] I also have no difficulty finding that the accused had not been issued with a permit to be in possession of the ammunition. His testimony is that he was given the ammunition by his employer as it was required in his duties as a security officer to clear the skies and ensure safe flight landing. In his cautioned statement, when asked about the ammunition he says that he had just come from the plantation and they were used to scare and chase pigs from his plantation. The accused under Section 7(4), Arms Ordinance 1960 bears the burden of proving the existence of required permit. Whatever his explanation, there is no evidence that a permit for his possession of the ammunition had been issued. The accused has not discharged the burden and accordingly I find proven this element of the charge.

[62] I am satisfied that prosecution has proven this charge beyond reasonable doubt.

[63] It is not disputed that the accused had in his hand a small knife. The only dispute is that prosecution claims there were 2 but the accused says he had one. He identified one of the knives tendered as Exhibit P4 as the one he had. The circumstances surrounding his use of the knife involved officers who had attended a call for officers to come out and fight. I am satisfied that in those circumstances the knife he had was a dangerous weapon.

[64] The accused’s evidence is that he only grabbed the knife when the person who got to where he was first struck him with a stick and whilst he got hold of the knife, he did not use it but put it away when he saw uniformed officers.

[65] I do not prefer his evidence but that of prosecution witnesses who say that when they attended the call, the accused was seen with 2 knives, one in each hand. He seemed to be waving them and it was only after he was told 3 times to put them away and warned the officers would arm themselves if he did not, that he finally complied.

[66] The onus is on the accused to show that he had the weapon for a lawful purpose. I do not accept his explanation and he has therefore not discharged the onus. I find that prosecution has proven this element of the charge.

[67] Accordingly, I am also satisfied that prosecution has proven this charge beyond reasonable doubt.

[69] The accused is remanded on the same bail conditions to Monday 9 March 2020 at 12.30pm for a pre-sentence report and sentencing on the 3 charges which I have found proven.

Supreme Court of Samoa

Police v Langkilde [2020] WSSC 57 (20 February 2020)