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Police v Meaalofa [2011] WSSC 68 (6 April 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MUA MEAALOFA
male of Toamua-uta.

FOE FOLASA
male of Toamua-uta and Puipaa.

ASIAGOGO GALI
female of Vaitele fou and Toamua.
Defendants

Counsels: Mr G Patu for prosecution
Defendants unrepresented

Hearing: 05 April 2011
Judgment: 06 April 2011

ORAL DECISION OF NELSON J

The defendants are charged that at Toamua-uta on 5 February 2011 they knowingly had in their possession the following narcotics substances: 8 small plastic packets containing dried marijuana leaves, 13 branches of marijuana without leaves and 4 marijuana seeds.

The police evidence is that a few days before 5 February 2011 they arrested a male of Vaitele-fou on the road, one Vili Pio for being in possession of 3 packets of dried marijuana leaves. When questioned as to the source of his drugs Vili told the police he usually buys it from the house of one Pati Meaalofa of the neighbouring village of Toamua-uta. Alternatively he would buy them from the house of Mr Misipati located further down the road from Patis house. Vili described to the police where these houses could be found.

As a result the police obtained search warrants and raided both houses in the early morning hours of Saturday 5 February 2011. At Patis house they discovered Pati and his girl friend the fourth named defendant Asiagogo Gali asleep in the living room of the house. The officers showed Pati the search warrant, explained the purpose of their visit and conducted a search of the property.

They discovered bits of loose marijuana leaves and a few seeds where Pati and his girl friend had been sleeping. And 8 small plastic coffee size packets of dried marijuana leaves in a black back-pack in a chest draw in the adjoining bedroom of the house. At the back of the house adjacent to an exterior bathroom they discovered in a container 13 branches of marijuana and some further seeds. The evidence established that the only occupants of the house were Pati and the fourth defendant and that the house was owned by Pati. The Police however also took in custody Patis younger brother Mua Meaalofa the second defendant and his friend Foe Folasa the third defendant who were found sleeping in Muas faleoo next to Patis house. At the entrance to the faleoo were discovered drug smoking paraphernalia which the police photographed and produced as part of the photographic evidence they tendered in this matter as Exhibit "P-1" for the police.

As a result of this raid the police charged Pati, Mua, Foe and Asiagogo with possession of the marijuana referred to earlier. The first named defendant Pati Meaalofa pleaded guilty to the charge and on the 7 March this year was sentenced to 18 months imprisonment. The second, third and fourth defendants pleaded not guilty and the matter proceeded to trial before me yesterday.

The police case against Mua the second defendant and Patis girl friend Asiagogo the fourth defendant rests essentially on the testimony of Vili Pio who said that he usually buys his marijuana from this house. Vili said he buys it from Pati but if Pati is not home then from his brother but if neither of the brothers are home then from the fourth defendant Asiagogo. He did not mention any other person as being a seller of marijuana from this premises and he also said he does not know the third defendant Foe. Vili identified the second and fourth defendants as well as Patis house from the police photos.

The evidence shows that a further member of this family was also resident on the family property namely the elderly gentlemen Toalepai Afe. But no one has implicated him in relation to these drugs although being the grandfather of the family, its hard to believe he was ignorant of the operation being run from the family property.

It is sufficient from the evidence of Vili who I have no reason to doubt to establish that the house at Toamua-uta was a house being used to sell illicit narcotics. From which marijuana was being sold by the two brothers. And according to Vili with the assistance of the fourth defendant Asiagogo. I note the first defendant Pati was called by the prosecution as a witness and he denied the involvement of either Mua or his girl friend Asiagogo. Patis evidence was that the drugs were solely his. Well I hardly find that evidence surprising since it is only natural that he would try and protect his younger brother and girl friend from being implicated in this matter. But Mua and Asiagogo were clearly implicated by Vili who is independent of the parties in this matter and who is a customer of the brothers that happened to be caught by the police. The presence of drug paraphernalia in the doorway of Muas faleoo and the bits of marijuana leaves and seeds retrieved from where the fourth defendant was sleeping reinforces that evidence.

Taking all matters into consideration I am prepared to draw the necessary inference that the marijuana found by the police on the premises was known to the second and fourth defendants to be on the premises and that they were therefore in constructive if not in actual possession thereof. In relation therefore to you Mua and Asiagogo I am satisfied beyond reasonable doubt the charge has been established by the prosecution, you are convicted accordingly.

As for the third defendant Foe Folasa the evidence shows that he is a friend of Muas who sometime accompanied him on visits to the property. He is an infrequent visitor and only appears at the property in Muas company. In the present case he spent the night prior to the police raid sleeping with Mua in his faleoo. He probably smokes marijuana regularly with his mate but he is not on trial for smoking marijuana. There is very little evidence linking him to the drugs that were discovered in Patis house. And when shown the narcotics by the police he did not admit that they were his or that he had any knowledge of them. I find that there is insufficient evidence establishing beyond reasonable doubt that he had knowledge of the marijuana found in Patis house sufficient to draw the inference of possession on his part. He receives the benefit of the courts doubt as to this matter as is required by law, the charge against you Foe Folasa is dismissed for lack of evidence, you are free to go.

............................
JUSTICE NELSON