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Police v Toia [2008] WSSC 77 (27 June 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUPU TOIA,
male of Utualii and Vaitelefou.
Defendant

Counsels: Ms Fuimaono for the prosecution
Defendant unrepresented

Decision: 27th June 2008

DECISION OF NELSON J.

The defendant in this case was originally charged under information S.174/08. He entered a not guilty plea to that charge and the matter was remanded for a hearing date to be set. Subsequently a further charge information S.740/08 was filed by the police changing the alleged date of the offence. That charge is noted to be in substitution of the earlier charge and accordingly the earlier charge is withdrawn and dismissed. The charge remaining against the defendant to which he has pleaded not guilty alleges that at Falelauniu on 13th December 2007 the defendant was knowingly in possession of cannabis substances namely 112 branches of marijuana leaves as well as loose dried marijuana leaves.

In respect of that charge the police have called a number of witnesses as follows: The primary witness was Corporal Sone Taliulu who is a driver for his Excellency the Head of State. His evidence is on the Thursday 13th December 2007 he was driving to Tafaigata Prison to return some workers at around 7.15pm in the evening. He came across the defendants taxi parked on the road side just past an intersection at Falelauniu. He noticed that the bonnet of the engine was raised and he said he saw the defendant and another in front of the vehicle rolling some cigarettes. He stopped his car facing their vehicle and got out. The defendants companion screwed up what he was rolling and threw it at him and then ran off. He said he did not try and pursue this person but went towards the defendant and he did not notice where the defendant threw what he was rolling. He questioned him as to who the other person was and the defendant told him he did not know. He said he did not believe the defendants answer and he got hold of the defendant and looked into the vehicle. The vehicle is a suzuki jeep type vehicle with a taxi license plate T2040. He saw in the back of the vehicle a tarpaulin and saw inside the vehicle some loose branches and leaves. The boot area of such a type of jeep is of course open to view from the exterior of the vehicle.

No doubt the officer suspected that these were prohibited narcotic substances because he then searched the defendant and took away his car keys and $198.00 that the defendant had in cash. He says the defendant asked him to keep the money and the marijuana but to forgive him and let him go. He told the defendant he cannot do that and that he was ringing the police for assistance. He said he rang for help because he was afraid as it was dark the area was remote and he was alone and he did not know where the other man had disappeared to. When it became apparent that he was going to call the police he says the defendant ran off. He says he did not try to pursue him either but elected to stay with the narcotics and the vehicle which was probably a wise move in the circumstances. A number of police vehicles responded to his distress call and the taxi was eventually brought to the main police station in Apia. The tarpaulin was subsequently found to contain 112 branches of marijuana leaves of various sizes up to 1ft in length and weighing in total 367.4 grams. The loose leaves found in the taxi were also weighed and came to 23.6grams. These materials are the subject of the possession charge that has been brought against the defendant.

A number of responding officers also gave evidence essentially confirming receiving the corporals distress call going to the scene and finding the suzuki taxi there with the substances inside. I am satisfied from their evidence and that of the drug analyst of the USP Drug Laboratory at Alafua that the substances found in the tarpaulin and in the taxi were of the plant cannabis sativa L or marijuana as it is more commonly known. That part of the charge is proven beyond reasonable doubt.

The real dispute centers around the element of possession as the defendants defence is that he does not own the marijuana neither did he try and smoke it and that it belonged to his passenger, a passenger that he picked up at the Fugalei market place and drove to Faleatiu firstly Faleatiu-tai and then subsequently to Faleatiu-uta and then back into Apia diverting to the road to Falelauniu at the request of his passenger. The defendant said in his evidence that there he stopped the car got out and opened the bonnet to check the engine because of all the travelling the car had done that day. It was while he was doing that that the police arrived and his passenger took off leaving him with these narcotic substances. He became afraid and he too ran away. How the drugs got into his car is explained in his cautioned statement to the police the day after this incident, a version which he essentially confirmed in his evidence to the court. That evidence is that at Faleatiu-uta the following occurred:

O mea la ia lea sa tutupu ai ile taimi lea i Faleatiu-uta – "o le taimi loa lea na ou tago ai ile fa’afeliiua’i la’u taavale ma fa’afa’asaga mai le afi agai i tai. E fai sina umi o alu ma sa ou tago loa faamoe i lalo le nofoa o la’u taavale ma ou taoto ai loa. Na ou te’i i le fai mai o la’u pasese ia te au poo matala le keli o la’u taavale ma sa ou nofo ae i luga ma ou tali iai i, peitai ou te leiloaina ni mea o loo tuu e le tagata lea i tua ole keli. Na oso mai loa i totonu ma ma toe agai mai loa i Apia. Na taunuu mai le ma taavale i Faleula ma faapea mai loa la’u pasese lea ma te kami atu i Faleula-uta ona o ia e fia alu i Falelauniu ma sa ia tuuina mai loa ia te au le $60 ole totogi o la’u taavale.

Fesili: o fea na e iloa ai mea nei o loo I tua ole keli o lau taavale?

Tali: o gauta I Falelauniu.

Fesili: o a la mea ia e taua o loo I tua ole keli o lau taavale?

Tali: o mariuana.

Fesili: sei e faamatalaina mariuana nei o loo e taua?

Tali: na maua atu e leoleo o loo afifi ile kapoleni lanumoana.

Fesili: o fea sa iai le kapoleni lea o loo iai mariuana I totonu?

Tali: sa I tua ole keli o la’u taavale"

The defendant maintains that he is an innocent victim and that he did not know anything about these drugs despite the fact that it a substantial quantity of drugs and that they were found in his taxi and despite the fact that not all the drugs were contained in the tarpaulin but there were some loose bits of plant material present in the taxi. He also says that he made no enquiry of his passenger between the trip from Fugalei market to Faleatiu and then all the way back to Apia before diverting to Falelauniu as to the nature of the passengers business or as to what the passenger had put in the back of his taxi. I find that a little hard to accept given that the defendant is a taxi driver by occupation.

The defendants story as noted in counsel for the prosecutions cross examination also has many anomalies and inconsistencies that is contrary to my life experience of the inquisitive and alert nature of the average samoan taxi driver. I believe the defendant knew what was in his car. It may not have belonged to him but he became a party to its carriage from Faleatiu-uta onwards. If he is not guilty as a primary party he is certainly guilty as an aider and abettor and the defendant must also understand since he does not have a lawyer representing him that for the offence of possession of marijuana it is irrelevant who owns the marijuana. It only need be established by the prosecution that the defendant was knowingly in possession of the marijuana in order to establish his guilt of possession. I have no doubt that the charge against the defendant is substantiated, it is proven beyond reasonable doubt. The defendant will be remanded to the 1st August for a probation report and for sentence.

O lea ole a faaauau pea lou nofo taofia e faatalitali ai le faaiuga o le mataupu lenei ae mafai ona ou faapea atu o aso ia e te nofo taofia ai e fuafua iai le faaiuga a le faamasinoga e le faapea e le aoga. Ao le aso 1 Aukuso lea o le a tolopo iai le mataupu lenei mo se faaiuga.

JUSTICE NELSON