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Police v Smith [2024] WSSC 61 (24 June 2024)

IN THE SUPREME COURT OF SAMOA
Police v Smith & Ors [2024] WSSC 61 (24 June 2024)


Case name:
Police v Smith & Ors


Citation:


Decision date:
24 June 2024


Parties:
POLICE (Informant) and VINCENT PATELESIO SMITH, male of Toamua-Uta, VICTORIA KALAPU, female of Matautu-Tai and Vaimoso-
Tai, LAKI JUNIOR SILVA, male of Vaimoso and Fugalei, and SHARLENE FIDOW, female of Aleisa and Utualii (Accused)


Hearing date(s):
9th, 10th, 11th & 12th April 2024
10th May (Closing submissions)


File number(s):



Jurisdiction:
Supreme Court – CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Leiataualesa Daryl Clarke


On appeal from:


Order:
For the foregoing reasons, I am satisfied that charge 1460/23 # 9 possession of methamphetamine; charge 1460/23 # possession of an unlawful weapon; Charging Document dated 05/06/2023 charge #3 possession of two clear glass pipes; and Charging Document charge #5 possession of marijuana have been proven beyond a reasonable doubt against Vincent.

Charge of possession of narcotics Charging Document dated 05/06/2023 charge # 6 possession of loose marijuana leaves and marijuana branches (batches 1 and 2 above) has been proven beyond a reasonable doubt against Laki.

All other charges as against Vincent and Laki are dismissed.

All charges against Victoria and Sharleen are dismissed.


Representation:
T. Fesili for Prosecution
A. Lesa for First and Second Accused
Third and Fourth Accused unrepresented.


Catchwords:
Police raid – methamphetamine – marijuana leaves – marijuana branches – utensils – firearm – possession of narcotics – possession of an unlawful weapon – possession of utensils.


Words and phrases:


Legislation cited:
Arms Ordinance 1960, ss. 2; 19;
Crimes Act 2013, ss. 33; 33(1); 33(2);
Criminal Procedure Act 2016, s. 93;
Narcotics Act 1967, ss. 7; 13(b); 18.


Cases cited:
Attorney General v Fuaifale [2016] WSCA 3;
Attorney General v Vai [2008] WSCA 10;
Police v Emirali [1976] 2 NZLR 476;
R v Cox [1990] NZCA 13; [1990] 2 NZLR 275.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Prosecution


A N D:


VINCENT PATELESIO SMITH, male of Toamua-Uta, VICTORIA KALAPU, female of Matautu-Tai and Vaimoso-Tai, LAKI JUNIOR SILVA, male of Vaimoso and Fugalei, and SHARLENE FIDOW, female of Aleisa and Utualii.


Accused


Counsel: T. Fesili for Prosecution

  1. Lesa for First and Second Accused

Third and Fourth Accused unrepresented.


Hearing: 9th, 10th,, 11th and 12th April 2024.
10th May 2024 (Closing Submissions)


Judgment: 24th June 2024


RESERVED JUDGMENT

  1. At around 5.00am on the 6th May 2023, Inspector Paul Tauaa briefed officers of a police search warrant to be executed at a Toamua-uta property said to belong to Vincent Smith. Present were officers from the Criminal Investigations Division (“CID”), Tactical Operations Squad (TOS) and Forensics Unit. Police then executed the search warrant and allegedly found methamphetamine, marijuana leaves, marijuana branches, various utensils and a firearm. Vincent Smith, Victoria Kalapu, Laki Junior Silva, Sharleen Fidow and Michael Silva were present on the property and were charged with offences under the Narcotics Act 1967 and the Arms Ordinance 1960. Michael Silva pleaded guilty. Vincent, Victoria, Laki and Sharleen pleaded not guilty and proceeded to hearing before me.
  2. Vincent is charged with:
  3. Vincent and Victoria are jointly charged with:
  4. Vincent, Victoria, Laki and Sharleen are all jointly charged with:
  5. While the prosecution evidence concerned the alleged possession of narcotics, prosecution did not lead evidence as to the alleged weight of the narcotics. The issues I must therefore determine are:

The law

Possession of Narcotics

  1. The charges for possession of narcotics are brought pursuant to sections 7 and 18 of the Narcotics Act 1967. The charges for possession of utensil are brought pursuant to section 13(b) of the Narcotics Act 1967.
  2. The meaning of possession was addressed by the Court of Appeal in Attorney General v Fuaifale [2016] WSCA 3. The Court of Appeal adopted the principles from the New Zealand Court of Appeal in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 at 278 that possession involves two elements:
  3. The New Zealand Court of Appeal also noted that where a charge involves a controlled drug, it “also requires proof of knowledge by the accused that what was in his possession is a controlled drug; although he need not know its precise nature.”

Possession of Utensils

  1. The charges of possession of utensil are brought pursuant to section 13(b) of the Narcotics Act 1967. Section 13(b) provides”:
  2. In Attorney General v Vai [2008] WSCA 10, the Court of Appeal explained that the offence must be broken down to two steps. First, proof that the accused was in possession of a pipe. Second is the accused’s state of mind at the time of possession. This requires determining the purpose for which the pipe was possessed. If attaining the purpose would entail the commission of another offence, “the primary offence of possession for a prohibited purpose under s 13(b) must have been committed.”[1]
  3. The joint charges are brought as principals and parties pursuant to section 33 of the Crimes Act 2013. These charges appear to be as persons aiding, abetting, inciting, counseling, or procuring a person to commit the offence pursuant to section 33(1); and/or as a party to the offence by forming a common intention with the others to carry into effect an unlawful purpose and to assist each other in that object pursuant to section 33(2).
  4. The onus of proof is on the prosecution to prove each element of the charges beyond a reasonable doubt.

Can defendants be found guilty of narcotics offending in absence of evidence as to weight?

  1. By prosecution oversight, despite reference by the court to the absence of evidence as to the weight, prosecution did not lead evidence on the quantity of alleged narcotics seized by police. Both prosecution and defence counsel agree that possession of narcotics does not require evidence of weight.
  2. I agree with counsel. The failure to lead evidence as to weight is not fatal to a narcotics charge. In Police v Emirali [1976] 2 NZLR 476, the New Zealand Court of Appeal affirmed the lower Court’s view that the possession of a narcotic, to constitute an offence, must be of a useable quantity. While the charges refer to the alleged quantity of narcotics, I agree that it is sufficient to find a charge proven if I am satisfied that an accused was in possession of a “useable quantity” of the narcotic alleged. The precise quantity is not an element of the offence and the charge may be amended pursuant to section 93 of the Criminal Procedure Act 2016. Accordingly, pursuant to section 93, charges are amended as follows:

Charge (i): Car Search – Vincent possession of 0.14 grams methamphetamine

  1. I now turn to the 7 charges in the order above, paragraphs 2 – 4 above.
  2. The TOS were first to arrive at the Toamua-Uta property. On their arrival, a Toyota driven by Vincent and with Michael passenger was stopped exiting the property. When CID arrived, Vincent was searched by Constable Aisoli Kitiona. According to Constable Kitiona, he found a clear bag in Vincent’s left pants pocket. He suspected this to be methamphetamine. Inspector Taua’a said that when the item was found, Constable Kitiona informed him. Similar evidence was given by Senior Sergeant Alapati Moafanua, though he said Constable Kitiona had said the methamphetamine was found in Vincent’s wallet.
  3. Vincent claims that he had no knowledge of the methamphetamine found in his pocket. He claims he was tired and he pointed to discrepancies in the prosecution evidence as to where the methamphetamine was found.[2]
  4. Although there were discrepancies in prosecution evidence and Senior Sergeant Moafanua said that the methamphetamine was found in Vincent’s wallet, he was mistaken. I accept Constable Kitiona’s evidence that he found the methamphetamine in Vincent’s pants pocket.
  5. I also reject Vincent’s claim he had no knowledge of the methamphetamine in his pocket. After it was found, Inspector Tauaa’s evidence was that he asked Vincent what was in the clear plastic bag and “... sa tali manino le alii o le aisa.” Vincent did not challenge this evidence. Even had Vincent not identified the methamphetamine to Inspector Tau’a’a, possession by Vincent of the narcotics is prima facie evidence of knowledge. This constitutes the mens rea element of the charge.[3] It would then be for Vincent to rebut the inference I would draw that he knowingly had in his possession the methamphetamine.[4] Vincent’s evidence was insincere, not at all credible and he gave no account of how the “aisa” may have found its way into his pants.
  6. I am also satisfied that the methamphetamine found by Constable Kitiona was later confirmed by the SROS. The exhibits officer Senior Sergeant Moafanua’s evidence was that the suspected methamphetamine was labelled Exhds/2023-52 and given the exhibit reference number 2023/62. These correlate with exhibit P6.
  7. I am satisfied that the quantity of methamphetamine in Vincent’s possession was a useable quantity, seen in photos 3, 5 and 6 of exhibit P1. I am satisfied that the charge is proven beyond a reasonable doubt.

Charge (ii): Possession by Vincent of 9mm semi-automatic pistol

  1. After the search of Vincent’s car, police accompanied Vincent to his house. Police then carried out a search of “potu 1” (“room 1”). Vincent and Victoria confirmed this as their bedroom. Constable Alesana Makisi searched the top shelf of the cupboard and found a pistol. Senior Sergeant Junior Afereti who examined the pistol in photo 14 and marked “A” in photo 13 confirmed it as a 9mm semi-automatic. He however noted that the pistol doesn’t work as it didn’t have a firing pin.
  2. Vincent denies knowledge of the gun or as to how it got into his room. He however explained that someone brought the gun, but couldn’t recall who. In his evidence, he stated: “I le faamatalaga i le pistol pe o le faga lea sa maua i totonu o le sefe lea e teu ai a’u faga...” He went on “...Oute le manatua la pe faafefea ona oo le pistol lea i totonu o la’u sefe lea e teu ai a’u fana...”[5]
  3. In her evidence, Victoria said that “Pau a lea o le sefe e le mafai ona ou tago e lote”, but then goes on to try qualify her response.[6]
  4. Section 19 of the Arms Ordinance 1960 deems any person in occupation of any land or building on which any firearms, ammunition or explosives are found to be taken to be in possession of that firearm “unless the person proves that they were in the possession of some other person or satisfies the Court that he or she had no reasonable grounds for believing that they were on such land or building.”
  5. Vincent was the occupier of the land and building. The pistol, an unlawful weapon as defined by section 2 of the Arms ordinance 1960, was found in his gun safe in his room next to his bed. I do not at all find credible Vincent’s denial of knowledge of the pistol. As I have said, I found him not to be credible or sincere. This charge has been proven beyond a reasonable doubt.

Charge (iii): Vincent and Victoria Possession of Utensils – Two Clear Glass Pipes and Two Pieces of Straw

  1. In room 1, Constable Makisi also found a glass pipe in the top drawer marked “J” in exhibit P1, photos 9 and 10. Underneath the bed, Constable Faigalotu Slade also found the bag shown in photo 11, exhibit P1. In the bag was suspected “aisa” in clear plastic marked “C” and a glass pipe marked “D” in photo 12. In his evidence, Constable Slade also said he found a straw in the room. Senior Sergeant Moafanua, confirmed that the straw found in room 1 was given to him by Constable Slade.[7]
  2. Both Vincent and Victoria claim that they had not seen the bag containing the glass pipe.[8] Vincent however confirmed that the dresser shown in photo 9 is in their bedroom but says:[9]
  3. Victoria said that she had not seen the pipes found in their bedroom before.[10] However, in her evidence, she said that the side of the bed shown in photo 9 exhibit P1 is Vincent’s side of the bed.
  4. Although prosecution counsel submitted that only one utensil was found as Constable Makisi said in his evidence, this does not take into account the second pipe found under the bed by Constable Slade. I am satisfied that two glass pipes were found in room 1. One pipe was found by Constable Slade in the bag shown in photo 11 exhibit P1. The second was in the top drawer next to the bed shown in exhibit P1 photos 9 and 10 found by Constable Makisi.
  5. I am also satisfied that (a) both glass pipes were in Vincent’s possession in that they were in his potential physical control or custody; and (b) for a purpose prohibited by the Narcotics Act 1967, namely, the possession of methamphetamine. One pipe was found in the top drawer of the bed side table on Vincent’s side of the bed. The other was found under his bed. Vincent is an ice user. As he said, ice can be ingested using a pipe. He was also found with ice in his pants pocket that morning.
  6. Although Mr Lesa takes issue with the chain of custody, Sergeant Moafanua said that the items located in room 1 were identified as EXHDS2023-54 and given Exhibit Reference number 2023/54.[11] He identifies and marks each exhibit from room 1 with the letters “A” – “F” and said that items “C” and “D” were pipes. These pipes were “PYREX” pipes.[12] His evidence is consistent with exhibit P8, although I accept he incorrectly referred in his oral evidence to the “Exh Ref:” number being 2023/54 when the correct number is “2023/64”. The SROS Certificate of Analysis exhibit P8 refers to items “C” and “D” as confirmed to have contained “methamphetamine”. I am satisfied that exhibit P8 items “C” and “D” refers to the pipes found in room 1. Accordingly, I am satisfied that prosecution has proven Vincent’s possession of the two glass pipes beyond a reasonable doubt.
  7. I am however not at all satisfied that Vincent possessed the two straws. First, there are no pictures of any straws shown in exhibit P1. I also accept and agree with prosecution’s submission that marked “D” in photos 11 and 12 is not a straw but a glass pipe. Second, the evidence of the straw allegedly found in room 1 as well as the kitchen was brief and lacked any cogency. Third, in terms of the kitchen, the evidence was that a number of people would come to Vincent’s home. Even if a straw was found in the kitchen area, I am left in reasonable doubt that this straw was in Vincent's possession.
  8. On the evidence, I am not satisfied that Vincent was in possession of the two straws.
  9. In terms of Victoria, prosecution accepted the paucity of evidence against her. I accept Victoria’s evidence that she had no knowledge of the two pipes found in their bedroom. One pipe was found in a bag under the bed and the other in a drawer on Vincent’s side of the bed. These were not in the open. Victoria’s evidence was credible and largely unshaken raising a reasonable doubt in my mind. This charge against Victoria will be dismissed.

Charge (iv): Vincent and Victoria - Possession of Methamphetamine weighing 0.03 grams

  1. In room 1, Constable Slade allegedly found methamphetamine under the bed in the same bag as the pipe was found. This was confirmed by Inspector Tauaa[13] and Sergeant Moafanua[14] and photographed. Sergeant Moafanua placed the suspected methamphetamine in an envelope and marked the envelope.[15] Together with the utensils found in room 1, the suspected methamphetamine was marked EXHDS2023-54 and Exhibit reference number 2023/54. A sample of the suspected methamphetamine was sent to and confirmed by SROS as methamphetamine (exhibit P8).
  2. Although I am satisfied that what was found in the clear plastic bag by police was methamphetamine and this was in Vincent’s possession for the same reasons as I gave in relation to the glass pipe in the same bag, I am not satisfied that the methamphetamine was a useable quantity. There is no evidence as to weight and photograph 12 of exhibit P1 as well as the prosecution evidence generally does not establish a useable quantity.
  3. This charge has not been proven beyond a reasonable doubt against either Vincent or Victoria and will be dismissed. In Victoria’s case, for the same reasons as also discussed earlier.

.Charge (v): Vincent and Victoria - Possession of Marijuana Leaves Weighing 3.01 grams

  1. Constable Makisi described finding a clear plastic bag in a cupboard that appeared to contain marijuana in room 1. This was confirmed by Sergeant Moafanua[16] and Inspector Tauaa. The suspected marijuana was uplifted by Sergeant Moafanua and sent to SROS for testing in October 2023.[17]
  2. I am satisfied that this charge as against Vincent has been proven beyond a reasonable doubt. First, the marijuana was found in same cupboard as the pistol and marked “K” in exhibit P1 photo 13. That cupboard was described by Vincent as his safe, stating:
  3. Found in Vincent’s “safe” where he stores his gun in his bedroom, there was no evidence that the safe would be generally used or accessed by others. As Victoria said, “[p]au a lea o le sefe e le mafai ona ou tago e lote”.[18] Despite sharing the room with Vincent, even she could not touch the safe. I am satisfied that Vincent had both custody and control as well as the knowledge and intention to exercise possession over the marijuana. Although there is no evidence of the weight of the marijuana nor a photograph of it, the sample received by SROS weighed 1.10 grams.[19] In contrast to the quantities involved in Police v Emirali constituting trace amounts in the milligrams, I am satisfied this is a useable quantity.
  4. For the same reasons as the 2 glass pipes found in room 1, I am satisfied that the suspected marijuana found in room 1 was later confirmed by SROS to be marijuana (exhibit P4).
  5. I am accordingly satisfied that Vincent was in possession of 1.10 grams of marijuana leaves. As against Vincent, the charge is proven beyond a reasonable doubt, weight being 1.10 grams.
  6. The charge as against Victoria for the reasons I have earlier canvassed has not been proven beyond a reasonable doubt and will therefore be dismissed.

Charge (vi): All Defendants - Marijuana Branch 0.48 grams and Leaves 0.57 grams

  1. Inside the house, police also searched room 2 which was a bedroom that Laki and Sharleen were staying in. The search located alleged marijuana in 3 locations. The first was from a body search of Laki carried out by Constable Bartley. The constable found a packet of cigarettes in his possession, exhibit P1 photo 17. When the cigarette packet was opened by Sergeant Moafanua, he saw crumpled white paper which he opened and found loose marijuana leaves.[20]
  2. The second quantity of marijuana was allegedly found by Constable Lealofi Leavasa. He said that he entered room 2 and saw a clear plastic bag on the floor next to the mattress. Constable Lealofi asked Laki what it was and he replied, marijuana. Constable Lealofi marked this with the letter “F” in photo 16 exhibit P1. Inspector Solomona Aimaasu in his evidence said he found marijuana marked “L” in photo 15 of exhibit P1. He identified this marijuana as marijuana branches.[21] Prosecution submit that the clear plastic bag marked “F” by Constable Leavasa and “G” by Inspector Aimaasu is the same plastic bag.[22] This is consistent with Inspector Aimaasu’s evidence.[23]
  3. The third lot marijuana was said to have been found by Constable Makisi under a box of clothing shown in photos 19 and 20.
  4. First, I deal with this charge as it relates to Vincent and Victoria. Vincent and Victoria’s room was room 1. Room 2 on the morning of the raid was occupied by Laki and Sharleen. In his evidence under cross-examination, Vincent said he rarely goes to this bedroom.[24] In her evidence, Victoria also said she doesn’t clean this room and many of Vincent’s friends come to their home on weekends to play pool.[25] Room 2 is often used by Laki.
  5. There is no evidence nor any reasonable inferences from the facts I accept to remotely establish beyond reasonable doubt that Vincent or Victoria were in possession of alleged narcotics found in room 2, either as principals or parties. This charge against Vincent and Victoria will be dismissed.
  6. I now turn to the marijuana allegedly found on Laki. I am satisfied beyond a reasonable doubt that Laki was in possession of the loose marijuana leaves shown in photo 18. The prosecution evidence on the location of this marijuana in the packet of cigarettes found on Laki was cogent, credible and convincing. In contrast, I did not find Laki’s evidence on this point credible nor the existence of a second packet of cigarettes to be convincing or supported by any other evidence.
  7. In relation to the second quantity of marijuana found by Constable Leavasa on the floor at the foot of the mattress (photos 15 and 16, exhibit P1), it was found unconcealed at the foot of the mattress he and Sharleen were using and in the bedroom they were both sleeping. Laki readily identified the item as marijuana when asked my Constable Leavasa. I am satisfied that Laki knew of the presence of the marijuana in room 2 and he had physical custody of it. I am also satisfied from the circumstances and his possession of other marijuana on his person that he had an intention to exercise possession over this second quantity of marijuana. The quantity, as seen in photo 15 and 16 in exhibit P1 is obviously a useable quantity.
  8. I am not however satisfied beyond a reasonable doubt that the third quantity of marijuana found under the clothes drawer was in Laki’s possession. The marijuana was hidden under the clothes drawer. The house has many visitors and Laki only visits from time to time. The fact that another person could have surreptitiously hidden the marijuana there cannot at all be discounted giving rise to a reasonable doubt.
  9. In terms of Sharleen, no marijuana was found on her nor did she identify any marijuana in the room. She was an in frequent guest in room 2, only staying there from time to time. The evidence was that there were many visitors to Vincent’s home. Prosecution has failed to prove this charge against her beyond a reasonable doubt.

Charge vii - one (1) clear glass pipe room 2

  1. The prosecution evidence was that Constable Bartley found a glass pipe on the top of a drawers table containing clothes.[26] Exhibit P1 photos 15 – 20 purportedly show the items seized from the search of room 2. The police process, as it was explained in the evidence, is that when suspected illegal items are found, the suspect is informed, cautioned, forensics called and photos taken and the item then uplifted by the exhibits officer.[27]
  2. The photographic evidence does not support the oral testimony of the police witnesses. No glass pipe is shown in exhibit P1 photos 15 – 20. I am not satisfied beyond a reasonable doubt that a glass pipe was found in room 2 as alleged. Further, even if I was satisfied beyond a reasonable doubt that a glass pipe was found, I am not satisfied that it was in the possession of any of the accused. For Vincent and Victoria, for the same reasons as I have set out in relation to room 2 and the items in it. In terms of Laki and Sharleen, many people are said to come to Vincent’s home and spend time there. Laki and Sharleen only stay in that room from time to time, mainly Laki on weekends. The circumstances raise a reasonable doubt in my mind that they had the knowledge or intention to possess the pipe. This charge must also fail.

Result

  1. For the foregoing reasons, I am satisfied that charge 1460/23 # 9 possession of methamphetamine; charge 1460/23 # possession of an unlawful weapon; Charging Document dated 05/06/2023 charge #3 possession of two clear glass pipes; and Charging Document charge #5 possession of marijuana have been proven beyond a reasonable doubt against Vincent.
  2. Charge of possession of narcotics Charging Document dated 05/06/2023 charge # 6 possession of loose marijuana leaves and marijuana branches (batches 1 and 2 above) has been proven beyond a reasonable doubt against Laki.
  3. All other charges as against Vincent and Laki are dismissed.
  4. All charges against Victoria and Sharleen are dismissed.

JUSTICE CLARKE


[1] At [19].
[2] NOE, 12 April 2024 at p.2.
[3] Police v Mariota [2003] WSSC 6.
[4] Police v Mariota [2003] WSSC 6
[5] NOE, 12 April 2024 at p.3.
[6] NOE, 12 April 2024 at p.13.
[7] NOE, 11 April 2024 at p.5
[8] NOE, 12 April 2024. pp 2, 11, 13 and 14.
[9] NOE, 12 April 2024 at p.5.
[10] NOPE, 12 April 2024 at p.14.
[11] NOE, 11 April 2024 at p. 11.
[12] NOE, 11 April 2024 at p 5
[13] NOE, 9 April 2024 at p.5.
[14] NOE, 11 April 2024 at pp 4 - 5.
[15] NOE 9 April 2024 at p.5.
[16] NOE, 11 April 2024 at p.5.
[17] NOE, 11 April 2023 at pp 8 – 11.
[18] NOE, 12 April 2024 at p.13.
[19] Exhibits P3 and P4.
[20] NOE, 11 April 2024 at p.6
[21] NOE, 10/04/2024 at pp 9 and 10.
[22] Prosecution submissions, p. 17.
[23] NOE 10/04/2024 at p.9.
[24] NOE 12/04/2024 at p.6.
[25] NOE 12/04/2024 at p.14.
[26] NOE 10/04/2024 at pp. 4, 10.
[27] NOE 09/04/2024 at p. 5.

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