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Police v Selau [2008] WSSC 25 (1 May 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

PALOLO SELAU
male of Taufusi, Lotopa and Satupaitea.
Accused in Person

Presiding Judge: Justice Vaai

Counsel: Ms Titi and Mr Unasa for prosecution
Accused in person

Hearing Date: 01 May 2008

ORAL DECISION BY JUSTICE VAAI

The accused is charged on the 26th November 2007 he had in his possession narcotics namely cannabis substance; there were 11 plastic packets, each containing dried leaves of marijuana plants. On the afternoon of the 26th November 2007, police officer Onosai Fetuiai was on duty at the market at Fugalei. Just after mid-day he saw the defendant who was personally known to him standing between the shops at the market. The conduct of the accused raised suspicions of the police officer as the accused was shaking hands with youths who walked by that afternoon; and the spot where the accused was standing was where the police officers usually apprehended those who sell marijuana at the market. The police officer then walked away and obtained the assistance of another police officer. Constable Onosai Fetuiai and police officer Alesana Aleka went and apprehended the accused. At that time the accused had his mobile phone to his ear and appeared being talking on the phone. As they walked away with the accused Constable Onosai Fetuiai had his hand to the back of the shorts of the accused as they walked towards the police office at the market. The accused was still talking on the mobile phone while his other hand was inside his shorts pocket. As they approached the police office at the market the accused attempted to run away, he took his left hand out of the pocket and at that time a plastic bag fell onto the ground. Constable Onosai Fetuiai was still holding onto the accused’s shorts as he picked up the plastic bag and went with the accused and police officer Alesana Aleka into the police office. Constable Onosai Fetuiai bodily searched the accused and found nothing inside his pocket. Constable then counted the contents of the plastic bag that fell onto the ground; there were 11 small plastic bags of what appeared to be marijuana leaves. Constable Onosai questioned the accused about the contents of the plastic bag and the accused said indeed they were his. Constable Onosai then requested a police car to take the accused to the police station. Two officers came in the car and together with Onosai they took the accused to the Apia office. At the Apia office, Constable Onosai Fetuiai handed the accused and the plastic bag to Detective Constable Ituau Ale Junior who told the accused at that time that he would be charged with possession of the 11 plastic bags of marijuana leaves. The accused was then kept in custody and the following morning Detective Constable Ituau Ale formally cautioned the accused who refused to make a statement. When the accused and the plastic bag were given to Detective Constable Ituau Ale, Ituau Ale then handed the plastic bag to Constable Efo Moalele who labelled the plastic bags and placed them in the exhibit room. On the 15th April Constable Moalele prepared samples and hand delivered those samples to Alafua where there were received by Faumuina Falaniko Amosa a local scientist who together with his colleague took the micro identification of the samples as well as the chemical analysis and prepared a report, which has been produced to this court as P1. The report confirmed that the samples delivered to Alafua by Constable Efo Moalele were indeed cannabis. The accused in his sworn testimony denied any involvement with the plastic bag that was found at the market on the 26th November 2007. He told the court he went to do the shopping that morning when he was approached by the police officer as he was talking to his mother on the telephone. When he was taken away he was still talking to his mother on the telephone and he did not try to run away. He denied throwing away any plastic bag or that any plastic bag fell from his shorts pocket. He was bodily searched by three police officers in the police office at the market and no plastic bag was found on him. But the $70.00 he had in his pocket was taken by the police and has never been returned. Now I have before me statements by the police officer Onosai Fetuiai as well as another police officer Alesana Aleka who accompanied Onosai Fetuiai when they took the accused to the police office at the market. Alesana Aleka was not called by the prosecution as a witness but the accused was quite entitled to cross-examine Constable Fetuiai on that statement made by Alesana Aleka. His failure to cross-examine Onosai Fetuiai on the statement by Alesana Aleka can be explained of course by the fact he had no formal legal training. In his statement Alesana Aleka said the accused was searched inside the police office and that is where the plastic bag was found which contradicts the evidence of Onosai Fetuiai. Alesana Aleka never mentioned anything about the accused trying to run away when he was escorted to the police office. I cannot help but read the evidence of Constable Fetuiai with some suspect. However despite the apparent discrepancy I am satisfied that the plastic bag that was found was found on the body of the accused whether it was outside the office or inside the office. I am therefore satisfied that the charged has been proved against the accused. The defendant is convicted and remanded on same bail conditions to the 19th May 2008 at 10 o’clock in the morning for a probation report and sentence.

JUSTICE VAAI