Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Nauer [2007] WSSC 39 (1 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

THE POLICE
Informant

AND:

LAKI "LUCKY" CONRADE NAUER,
male of Lotopa, Laloanea and Satapuala.
Defendant

Counsels: A Lesa for prosecution
RS Toailoa for defendant

Hearing: 19, 20 February, 26 & 27 March and 30 April 2007
Decision: 1 May 2007

DECISION

The defendant faces two charges. The first is that on the 29th January 2006 at Apia, he was knowingly in possession of narcotics namely, cocaine substances weighing 3 grams. The second is that on the 29th January 2006 at Apia, the defendant was again knowingly in possession of narcotics namely, cocaine substances weighing 1 gram.

The ingredients of these particular charges that the prosecution needs to establish are accordingly as follows:

Firstly, that the defendant was in possession of the narcotics. This is referred to in previous decisions of this court as the physical element of the charge namely, that it must be shown the defendant had actual physical custody or control of the narcotics. See the authorities cited in Police v Semeatu Siaosi, unreported decision of this court dated 26th January 2007.

The second ingredient is that the defendant must be shown to have been knowingly in possession, this is often referred to as the mental element of the charge and it requires that it be proved that the defendant knew he had possession of the narcotic substances in question. And if it is shown that the defendant had physical possession of the narcotic substances, this is prima facie evidence of knowledge on his part. But there can of course be other indicators of such knowledge. Again see Police v Semeatu Siaosi and the Chief Justices decision in Police v Mariota [2003] WSSC 6.

Thirdly, it must be shown that the defendant knowingly had possession of the narcotic substances at Apia on the 29th day of January 2006 as alleged by the informations.

Fourthly, it must be shown that the substances in the defendants possession were in fact a narcotic substances within the terms of the Narcotics Act 1967. Here it is alleged that the narcotic substances in question are cocaine which is a prohibited substance pursuant to the First Schedule to that Act.

Fifthly and finally as alleged in the charges it must be shown that the weight of the narcotic substances in the defendants knowing possession are 1 gram and 3 grams respectively.

In support of these charges, the prosecution called 10 witnesses all police officers of one sort or another. Their evidence essentially is that on Saturday, 28th January 2006, around 6pm in the evening, police were alerted to a high speed car chase occurring on the main west coast road to the airport. The chase involved a yellow sports type vehicle. A team was dispatched from central police headquarters to check out the report and this team drove west to investigate. The team comprised Corporal Junior Tofilau and two other officers.

Patrolling the west coast road at this time was Senior Sergeant Keti Toleafoa and a fellow police officer. They were also advised to be on the lookout for the vehicles involved in the high speed chase.

When the team from central headquarters reached Vaiusu-tai, they received a report on their radio of a traffic accident at Vaitele inland of the Yazaki complex. They rushed to the scene and found a yellow vehicle overturned and on its side. A number of people were standing around and a man was lying on the ground near the yellow vehicle with a white sheet covering his face. Photos of the yellow vehicle have been produced and the vehicle was identified by the police officers as the 4 door sports utility type vehicle registration number 12909 shown in the photographs.

Corporal Tofilau and his team immediately secured the scene of the accident and told everyone there to leave. Neither he nor any member of his team took any further action in relation to the yellow vehicle. At some stage Senior Sergeant Toleafoa and his co-officer arrived and assisted the other officers in securing the scene. The matter was reported to central police headquarters.

I am satisfied on the evidence I have heard that the officers properly secured the scene and there is no evidence to suggest anyone tampered or interfered with the yellow vehicle or attempted to approach the yellow vehicle after police officers arrived on the scene.

Shortly after, a second police team arrived under the leadership of Senior Sergeant Pa’ipa’i Pa’ipa’i. They noted the area had been sealed off from the public by the officers who had arrived earlier. There was no one near the yellow vehicle but there were tools and foodstuffs scattered outside of the vehicle. These materials were gathered up and placed in a chilly bin described by some of the witnesses as a "paelo" and this was put into the back of the yellow vehicle. The car was righted onto its wheels by the police officers and Senior Sergeant Pa’ipa’i drove it to the police station and parked it inside the Commissioners garage. The car was then covered by a special tarpaulin obtained from the Emergency Operations Section of the police. This tarpaulin stretched across the vehicle and down to its tyres and was tied off at the bottom with ropes.

Again I am satisfied on the evidence that I have heard that the yellow vehicle was properly secured and covered while in the Commissioners garage and arrangements were made for the Emergency Operations officers whose office is at the rear of the Commissioners garage to guard the vehicle overnight. There is no evidence suggesting or from which a reasonable inference can be drawn that anyone interfered or tampered with the yellow vehicle the night of Saturday 28th January 2006.

The next day Sunday 29th January 2006 in the morning, the tarpaulin was removed and the car taken out of the Commissioners garage. A search of the vehicle was conducted by Constable Lotu Tulaga and two other officers. Inside the left rear panel of the boot of the vehicle where car tools are normally kept, the officers discovered a small blue bag with yellow borders or stripes. Inside this blue bag were two small plastic bags containing white powdery substances which the officers suspected were drugs or narcotics. Photos of what was discovered were taken and in particular I refer to photographs numbered 3 and 4 of Exhibit "P1" for the prosecution. The two small packets were handed to Detective Sergeant Iosefo Pati who took it to the Exhibits Room of the police station a room that is accessible only by the incharge of the Criminal Investigation Division and the exhibits officer Sergeant Herbert Aati.

Detective Sergeant Pati was assigned to be the investigating officer of this case. His evidence was the yellow vehicle was kept by the police for the rest of Sunday, 29th January and on Monday 30th January it was released to the defendant. His further evidence was that as investigating officer he conducted interviews of witnesses for this case. And also that on Monday 30th January 2006, he was present with Senior Sergeant Frost at an interview involving the defendant. The contents of that interview have already been ruled inadmissible and are therefore of no further evidentiary value in this matter.

I have reviewed my notes of evidence carefully and what I have just mentioned are the only references in the prosecution evidence to the defendant in this matter. Certainly counsel for the prosecution could not point to any other part of the evidence that involved the defendant.

The remainder of the prosecution witnesses were witnesses relating to the chain of custody of the alleged narcotic substances and these were the following: Sergeant Herbert Aati who is the exhibits officer and who received the two small plastic bags from Sergeant Pati on 1st February 2006 who recorded and labeled them and locked them away in the exhibits room pending disposition overseas for analysis. His evidence was he took out the packets one week later on 8th February 2006, took them to the National Hospital at Motootua for weighing on the hospitals digital scale and found them to weigh 3 grams for one packet and 1 gram for the other packet. He prepared and labeled samples from each of the packets and testified that these samples used up only a small part of the material, the rest of the material was placed back into the main plastic bag and all bags were then returned and locked in the exhibits room. On 22nd February 2006 he removed the two sample packets and handed them to Senior Sergeant Viliamu Viliamu.

Senior Sergeant Viliamu Viliamu gave evidence of receiving the packets together with a number of other packets from the exhibits officer for taking overseas for analysis. He locked them away in the office safe and he opened it up the next day 23rd February 2006, put the packets into his brief case, travelled with them to Sydney Australia where he handed them over to the officers of the Australian Federal Police.

Agents Sheryl Ward and Gladys Yu of the Australian Federal Police gave evidence of analysis of these and the other packets that were sent over from Samoa and their findings as to which packets contained the narcotic substance cocaine and which did not were made and duly reported on. These reports were exhibited "P2, P3 & P 4" for the prosecution. In respect of the two packets involved in this particular matter, these had been marked Exhibit "DS/2006 36AA-1" and Exhibit "DS/2006 36BB-1". These were so labeled and marked by Sergeant Aati and the analysis of what was contained in the packets is contained in the report of Federal Agent Sheryl Ward where it is noted that these two packets contained the prohibited narcotic cocaine.

I am generally satisfied as to the evidence that the substances received by Sergeant Aati on 1st February 2006 and which were subsequently transported and tested in Australia according to the approved testing methods of the Australian Federal Police are in fact cocaine.and that they did in fact form part of the 3 gram and 1 gram plastic bags received by Sergeant Aati from Sergeant Pati.

Except for two aspects of the evidence which have been made the subject of a submission by counsel for the defendant of no case to answer at the conclusion of the prosecution case. The first of these two aspects is that the evidence of the prosecution witnesses is quite clear: what Constable Lotu discovered and removed from the back of the yellow vehicle was according to the evidence of that constable small plastic packets containing "white powder", which he described in his evidence as "like washing powder". In cross examination, he called it a "powdery substance" and specifically said it was "not tooth paste or in gel form".

The evidence of the investigating officer, Sergeant Pati who has since left the police service, is that what he received was "powders in the bag" and the "bags of powder" and this is what he gave to Sergeant Aati. He confirmed this in cross examination yesterday when he referred to the substances as "white powder". He feebly tried to alter that at the end of his cross examination but I am satisfied that part of his evidence, given the circumstances under which this case has unfolded, can be safely ignored as an attempt to plug an obvious inconsistency in the prosecution case.

This inconsistency arises because contrary to what Constable Lotu and Sergeant Pati testified, the evidence of two of the drug analysis witnesses is equally clear. The evidence of Sergeant Aati is that he received and labeled the two white packets received from Sergeant Pati and that they contained "white waxy substances". He refers to it as waxy substances in both examination-in-chief and cross examination. He says he did not physically touch the substances because he was wearing gloves but by pushing the sides of the plastic bags together he noted that the substances were sticky and squashy and felt waxy. Along similar lines is the evidence of Federal Agent Ward who actually analysed the substances in question in Australia. Her report Exhibit "P2" for the prosecution refers to Exhibit DS/2006 36AA-1 and Exhibit DS/2006 36BB-1 as both containing "an off white gel/paste". She clarified this in her oral evidence as a "gel or paste, not as thick as toothpaste, more like a hand lotion but not a powder, it was a paste".

To these inconsistencies must be added what is a clear break in the chain of custody of the substances in issue in these proceedings. Sergeant Pati and Constable Lotus evidence is the search uncovering the substances was conducted on the morning of Sunday, 29 January 2006. Constable Lotu handed the plastic packets to Sergeant Pati and Sergeant Pati says he in turn took the plastic packets to the exhibits room. This suggests that this occurred as one would normally expect it to occur, immediately after the substances were discovered on Sunday 29 January 2006. There is certainly no reason emerging from the evidence as to why the investigating officer would have waited until some other time to put away these materials into the safety of the exhibits room. But Sergeant Aati’s report which he confirmed in cross examination and his oral evidence before this court was that he received the two small plastic bags from Sergeant Pati not on Sunday 29 January 2006 but on 1 February 2006 which was a Wednesday, some two days later. The evidence does not disclose or address the issue of what happened and perhaps more significantly where were these two small plastic bags during the two days between their discovery on Sunday 29 January and being handed to Sergeant Aati on Wednesday 1 February.

Given the disparity in the testimony of the witnesses as to the nature of the alleged narcotic substances and given that it is clear from the prosecution evidence that there were substances from other drug seizures that accompanied the samples in this case to Australia, a serious question is raised as to the accuracy and reliability of the chain of custody evidence.

A further difficulty arises in relation to the evidence led by the prosecution as raised by counsel for the defendant in his no-case submission. His submission was there has been no evidence adduced that the blue bag discovered in the yellow vehicle belonged or was in the possession of the defendant whether by way of finger print evidence establishing handling of the blue bag or the relevant two small plastic packets, or otherwise. Likewise there was no evidence led by the prosecution as to the ownership of the yellow vehicle such as for example production of an ownership certificate establishing that the defendant owned the vehicle.

Prosecution counsel accepts there is no direct evidence linking the defendant to the yellow vehicle other than the fact that the vehicle was released by the police on Monday 30 January into the custody of the defendant. It is argued that the release of the vehicle to the defendant sufficiently establishes some connection or ownership in respect of the vehicle. Counsel also argues that the court should use the evidence that the defendant was interviewed by the police as some sort of evidence from which it can be construed that he has a linkage to the vehicle and/or this matter.

With due respect to counsel I am unable to agree. The fact that the defendant was interviewed is equivocal. He could have been interviewed as a witness, as a source of information, as a suspect or for a host of other possible reasons as part of the police investigation and inquiry. The fact of the interview establishes nothing. And defendants counsel is correct there is no evidence in the prosecution case linking the defendant directly or indirectly to the blue bag which contained the two small packets. There is certainly no finger print evidence adduced and the unavailability of such expertise in this jurisdiction is not a reason justifying anything. Neither is there any evidence that the defendant was in physical possession of the white powdery substance or the blue bag they were in, or that he had any connection whatsoever with the contents of the yellow vehicle. The fact that the vehicle was released to him is again equivocal. It could mean any number of things. It could mean the vehicle belongs to him, it could belong to his wife, he could be picking it up for a friend, he could be picking it up for a relative, many possibilities exist. That fact is insufficient by itself to draw the inference that the vehicle and all its contents belong to the defendant. At best it is evidence of such a weak, vague and tenuous character that a reasonable jury properly directed could not find it to be evidence of the defendant being in possession, let alone knowingly being in possession, let alone knowingly being in possession at Apia, on Sunday 29 January 2006 as alleged by the charges. This of course is the R v Galbraith [1981] 2 All ER 1060 type test but even applying the Police v Lucan Sione (unreported 14 March 2001) test of a mature examination of the evidence by a judge sitting alone, I am unable to find the evidence is such that there is here a case for this defendant to answer.

There were other basis for defence counsels submission but I find nothing of substance therein. The two main difficulties are those that I have referred to about the chain of evidence and the lack of evidence connecting the defendant to possession of the yellow vehicle and/or the blue bag in question and/or its contents. On the evidence that is before me there is no case for this defendant to answer, the charges against him are accordingly dismissed.

NELSON, J.