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Police v Feesago [2010] WSSC 19 (23 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

GEORGE FEESAGO
male of Siusega
Defendant

Counsel: Precious Chang and Sarona Rimoni for the prosecution
TS Toailoa for the defendant

Decision: 23 April 2010

DECISION OF THE COURT

1. On the 5th December 2007 the police followed a pick up driven by the defendant to a home at the rear of the Apia Park Stadium. Two officers, Chief Inspector Seiuli and Constable Luuga went inside and found the defendant and Mr Rankin inside one of the rooms. As a result of police search, a plastic bag of what appeared to be marijuana leaves were found inside one of the pocket of the defendant’s pants. What appeared to be methamphetamine (ice) was found on Mr Rankin. Another small plastic bag containing what appeared to be marijuana leaves were found on a table inside the room.

2. When the vehicle driven by the defendant was searched, a much bigger plastic bag containing what appeared to be marijuana branches, leaves and seeds were found in the pocket of the driver’s door.

3. The three plastic bags of suspected marijuana substances were placed in a pillow case by Constable Luuga and taken to Apia Police. On arrival at the Apia police, Constable Luuga placed the two plastic bags found in the car and on the defendant on a table where the defendant was questioned by Sergeant Tiai.

4. At the conclusion of the interview Sergeant Tiai gave the two plastic bags to Senior Sergeant Aati and Constable Moalele for weighing and tagging.

5. The two bags were then sealed in an envelope labeled with the name of the defendant and given exhibit number and locked in exhibit room to await import licence for the samples to be sent to NZ for analysis.

6. On the 21st December 2007 the exhibits were removed by Senior Sergeant Aati, samples from each bag were taken, placed separately in a ESR drug envelope which was sealed and labeled with the defendant’s name and exhibit number. The ESR drug envelope was accompanied by a ESR laboratory form which was endorsed by Inspector Galumalemana as head of the CID.

7. The defendant has been charged with the possession of the two plastic bags. He is aged 31 years from the village of Siusega. He denied the charges.

Elements of the offence of possession of Narcotics

8. It is common knowledge that the offence of possession consists of two elements which the prosecution must prove. The first, often called the physical element, is actual custody or potential physical custody or control. The second element, often referred to as the mental element, is a combination of knowledge and intention.

9. Knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed) and the intention to exercise possession: R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 at 278

Actual custody, control or potential physical custody

10. Counsel for the defence contended that the descriptions of the plastic bag that was found on the body of the accused were contradictory. Two plastic bags were found in the room where the accused and Mr Rankin were discovered by the two police officers. The plastic bag found on the accused was bigger than the one found on the table. And the third plastic bag found in the car was bigger than the two found in the room. Constable Luuga placed the two plastic bags found on the accused and in the car on the table at the Apia Police where the accused was interviewed by Sergeant Tiai. There was no doubt whatsoever that the two plastic bags placed on the table where the accused was interviewed by Sergeant Tiai were the ones found on the accused and inside the car.

11. Description could neither be said to be contradictory nor inadequate. There were only 2 plastic bags of what appeared to be marijuana leaves and a plastic bag of branches, leaves and seeds.

12. The two plastic bags of what appeared to be marijuana leaves found on the body of the accused and in the door pocket of the car he was driving is evidence which goes to prove that the accused was in actual physical custody and control of the two plastic bags.

13. The next day following his arrest, the accused and Mr Rankin were attended by their then counsels. A Deputy Registrar also attended for the remand applications. When the accused was told by the deputy registrar of a third charge of giving ice to Mr Rankin, he in the presence of counsels and others called to Chief Inspector Seiuli words to the effect that only marijuana were found on him.

14. The prosecution has proved the first element of the charge.

Knowledge that the two plastic bags were in his possession

15. My findings in paragraphs 12 and 13 above points to no other conclusion. He was aware and he had an intention to exercise possession. When he drove the vehicle towards the house of Mr Rankin and entered the house, the plastic bag of stalks and leaves was left in the car door and he was aware of the plastic bag in his pants.

16. The second element of the charge has also been proved.

Were the contents of the two plastic bags Narcotics namely cannabis?

17. The main thrust of defence submissions suggests that there is reasonable doubt as to whether the contents of the two plastic bags were the same as those tested by the ESR forensic scientist. The submission is premised on three alternatives.

18. The first limb of the argument is that there has been a break in the chain of custody of the plastic bags after they were handed by Sergeant Tiai to Constable Moalele for labeling and safe keeping. As Constable Moalele did not testify as to the whereabouts of those plastic bags, the prosecution have accordingly failed to prove that the contents of the plastic bags were narcotics. This is based on the police statement of Constable Moalele, the testimony and two police statements by Sergeant Tiai and the conduct of prosecution counsels.

19. Sergeant Tiai told the court that after she interviewed the accused, she gave the two plastic bags to Senior Sergeant Aati and Constable Moalele. Under cross examination she conceded submitting a written report, as required of all police officers involved in an investigation, concerning her involvement in the investigation of the accused. In that written report she stated that she gave the two plastic bags to Constable Moalele.

20. This written report dated 8th December 2007 was not disclosed to the defence. It’s existence was exposed under cross examination. The witness told the court it was only a summary. Prosecution counsel explained the court the report was an internal document between the police and the office of the Attorney General.

21. Explanation by the prosecution counsel tantamounts to saying that whilst the reports by the Chief Inspector, who headed the investigation, and other senior police officers, written on the same letter heads concerning the same investigation were not regarded as privileged, and were therefore made available to defence counsel, the written report by Sergeant Tiai, was on the other hand regarded as an internal memorandum and therefore privileged.

22. A few days before the trial, Sergeant Tiai wrote another report, on the same letter head and with the same format as her first report. But this time, she wrote, she gave the plastic bags to Senior Sergeant Aati and Constable Moalele. The privilege accorded to the first report was not granted to this second one. All the reports submitted were to the officer in charge of the investigation. Both Sergeant Tiai and prosecution counsels deliberately misled the court. Police file on the investigation has not been compiled.

23. Constable Moalele was not in the country to give evidence and defence counsel suggested that Sergeant Tiai’s report and consequently her testimony were deliberately tailored to provide for the missing link in the chain of custody of the plastic bags.

24. Whilst I agree with defence counsel that the conduct of both Sergeant Tiai and of prosecution counsels deserve appropriate sanctioning, I am firmly of the view Sergeant Tiai did not compile the so called second report of her own volition.

25. Indeed she did not need to make a second report. She did not state in her first report of the 8th December 2007 that Sergeant Aati was not present when she gave the exhibits to Constable Moalele. Logically only one person physically receive the exhibits.

26. In fact Senior Sergeant Aati submitted two reports on the 5th December 2007, the very day the accused was arrested, interviewed and the exhibits were weighed and labeled. One report covered the operations of the K9 Unit which involved the search of the car of the accused and the room occupied by Mr Rankin and the second report concerned the receipt by him and Constable Efo Moalele of the exhibits for weighing and labeling.

27. He also told the court that at the relevant time he was training Constable Moalele to be an exhibit officer. When the exhibits were received from Sergeant Tiai, he was there all the time supervising Constable Moalele. He has held the position of exhibit officer for over eight years and he was training and supervising Constable Moalele to take over.

28. I accept Constable Moalele submitted a report in which she stated she received the exhibits from Sergeant Tiai, which she attended to weigh and labeled and gave it exhibit number EXHDS/2007-162. That report is dated 8th December 2007. The same exhibit number is stated by Sergeant Aati in his report dated 5th December 2007.

Samples made by Sergeant Aati and sent to the ESR

29. The second limb of the defence argument is that one of the samples sent by Sergeant Aati for testing did not come from one of the plastic bag. This argument is based on the evidence of Sergeant Aati. He stated that from the plastic bag of loose leaf found on the accused, he took as samples small amounts of loose leafs. The second sample was from the plastic bag found in the car.

30. Defence counsel contended that the samples taken from the plastic bag found on the accused was not the same sample tested by the ESR scientist because the scientist testified that the samples she examined were mainly flowering heads.

31. I have dealt with this submission in my written ruling giving rejecting submissions by the defence of a No Case to Answer application. The scientist did explain that the marijuana leaf and flower are not distinctive in colour, so that under the naked eye the flower looks very much like the leaf. Accordingly the submission fails.

Samples received and tested by ESR, Auckland, NZ

32. The third limb relates to the reliability of the evidence concerning the receipt of the so called samples by the ESR. It was submitted there is reasonable doubt that what was tested may not have been the samples prepared by Senior Sergeant Aati and sent by registered mail to ESR office.

33. The submission is premised on the evidence of the scientist who tested the samples that two other officers of ESR had received and stored the sample before she retrieved it from the security safe for testing. As the two officers of ESR did not testify, the defence contended the prosecution did not eliminate the possibility of an error and the scientist may have tested the wrong sample.

34. In my respective view there is no substance in the submission. The registered envelope containing the samples was received and stored by ESR personnel in accordance with ESR procedure. When the envelope was retrieved for testing it had the same label and exhibit number assigned to it in Samoa by Senior Sergeant Aati.

35. The defence also questioned the nature of the scientist’s report particularly the omission by the scientist to describe the method used to test the samples. Again I have dealt with this aspect of the submission in my ruling on the No Case to answer submission. Suffice to say that the scientist came to court with her file to respond to any queries relating to her findings.

36. Finally the defence questions the place of the alleged incident which the information states to be Apia Park whilst the evidence suggests to be at Levili. It is not an element of the offence which the prosecution must prove beyond reasonable doubt as argued. What is certain however is that the house in which the accused and Mr Rankin were arrested was at the rear of the Apia Park stadium.

Conclusions

1. The accused is guilty of the two counts of possession

2. He is remanded on the same bail conditions to the 28th May 2010 for a Probation Report and Sentence.

JUSTICE VAAI