IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SEMEATU SIAOSI @ FOTU SIAOSI,
of Faleatiu and Salua Manono-tai.
Defendant

Counsels: Mr A.Lesa for informant
Mr TK.Enari for defendant

Hearing: 25th & 26th January 2007
Decision: 26th January 2007

DECISION OF NELSON, J

As noted in the decision on the no-case submission, the offence of possession has two ingredients that need to be established beyond reasonable doubt to prove the charge. The first ingredient is the physical element of the charge namely, that actual physical custody or control of the marijuana must be proven to have been with the accused. Secondly, the mental element or ingredient of the charge namely it must be shown that there was an awareness on the part of the accused that the marijuana was in his possession. Such awareness can be manifested by the overt or direct words or actions of the accused or it can be inferred from his behaviour his actions and all the surrounding circumstances. These ingredients have been expressed in these terms in previous decisions of this court in cases such as Police -v- Mariota [2003] WSSC 6 a decision rendered on the 13th March 2003, Police -v- Leuluaialii [2006] WSSC 50 a decision given on 18th September last year; see also the judgment of the New Zealand Court of Appeal in R -v- Cox [1990] 2 NZLR at page 278 where that Court discussed the New Zealand equivalent to our provision, section 7 of the Narcotics Act 1967. 

In relation to the first ingredient, it is not challenged by the accused that the substances found in the blue bag that was carried by him was in fact leafy material from the cannabis plant cannabis sativa L or as it is more commonly known, marijuana. This plant material is of course a prohibited narcotic under the Narcotics Act 1967. There is therefore sufficient evidence to establish the first ingredient of the charge namely that the accused had actual physical control and custody of the marijuana. 

The dispute in this case centres around the second ingredient of the charge, namely, whether or not the accused knew the bag contained marijuana. He claims and stated in his evidence that the bag belonged to a man named Teila who is now deceased. He said he had known this man for about one year and he had been given the bag to carry and because Teila was bigger and stronger than him, he did what he was instructed to do. The accused said that while sitting in front of Eveni’s store opposite the entrance to the Mulifanua Wharf on the 17th November 2005, Teila who had been working on land next to the store came and gave him the bag. He said he did not know what was in the bag neither did he open the bag. It also appears that he did not make any enquiries of Teila as to what was in or what were the contents of the bag. As the two of them were walking home they diverted to a nearby beach to pass water as they had been drinking large quantities of beer. Suddenly Teila grabbed the bag and hid it on the beach before they returned to the main road. It appears from the accuseds evidence that even then he made no enquiry of Teila as to why Teila hid the bag or what was in the bag or who Teila was hiding the bag from.

The prosecution evidence is that on the day in question at approximately 2.00pm in the afternoon, some undercover police officers in civilian clothes attended Mulifanua Wharf on the lookout for any marijuana offending that may be occurring there. Their disguise of civilian clothes was obviously not very convincing because they said that as they passed Eveni’s store, the accused called out to them "malo lava le galulue" or words to that effect. This suggests that the accused at least knew that they were policemen and that they were either still working or had just finished working. The accused is from this area as are the Police officers.

This evidence from the police officers was not challenged by the accused in his testimony or in cross examination by his counsel. It can therefore be taken to be accepted by the accused as correct.

The evidence is critical for two reasons: firstly, it shows that the accused had knowledge there were police officers in the vicinity. Secondly, it is crucial because the testimony of the police officers was that shortly after these comments were made the accused was seen walking towards the beach with Teila with the accused carrying the bag containing the marijuana. The further evidence given by the police officers was that they followed the accused and Teila. They noticed that when the men returned from the beach the accused no longer had the blue bag. Uniformed police officers had by this time arrived on to the scene and quite likely some officers stayed with the accused and Teila while two of the officers went down to the beach to look for the bag. They discovered the bag hidden under a fau tree, retrieved it and returned to the road. They opened the bag in the presence of the two men and discovered the marijuana. Notwithstanding the denials by the accused and Teila they arrested them and took them to the police station at Faleolo. 

The police evidence as to the accused carrying the blue bag is corroborated by one civilian witness called by the prosecution. This is the witness Kolio Ifopo. This witness may or may not have been part of the group comprising the accused and Teila but he was clearly nearby. He stated in his evidence that when Teila and the accused walked along the main road, the accused was carrying the blue bag. There is accordingly no question that the accused was in possession of the blue bag. And that at all material times he was the one carrying the bag not Teila. 

As was noted by the learned Chief Justice in the Mariota case:

"possession by the accused of the marijuana is prima facie evidence of knowledge".

The question then is whether the accuseds evidence and explanations is sufficient to rebut this inference of knowledge or to create a reasonable doubt in relation thereto. As further noted in the Mariota case:

"this does not mean the legal onus of proof has shifted to the accused. The legal onus of proof still remains on the prosecution. However the evidential onus which can shift back and forth between the prosecution and the accused during the course of trial, has shifted to the accused to show that he had no knowledge of the narcotic substance found in his possession." 

I am of the clear view that the accuseds explanations should be rejected. It is not credible, it does not have the ring of truth and his answers under cross examination were evasive and self serving. His answers and explanations made no sense and his actions are more consistent with a man who knew exactly what was in the blue bag and who made an attempt to hide it from the police. 

I am satisfied beyond reasonable doubt Semeatu on the evidence as to your knowledge in this matter, the second ingredient of the charge is proven to the required standard, you are found guilty accordingly. You are remanded in custody to the 12th February 2007 for probation report and sentence.

Defence Counsel seeks bail but his application is denied because of the following reasons:
Firstly, the defendant was remanded in custody to await trial because he failed to appear for his first trial date and had to be arrested . Now that he has been found guilty of a serious criminal charge, the likelihood of flight is in my view even greater.

Secondly, given the current sentencing regime of the Supreme Court, the penalty is most likely an imprisonment term but the court will take into account any "unnecessary" delay that has meant the accused spending time in custody waiting to be dealt with.

SUPREME COURT JUDGE