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Police v Barlow [2017] WSSC 168 (3 November 2017)

THE SUPREME COURT OF SAMOA
Police v Barlow [2017] WSSC 168

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SCOTT BARLOW male of Ululoloa and FATU VAGANA male of Salelavalu and Nuuuli, American Samoa
Accused

Counsel:
O Tagaloa and A Matalasi for Prosecution
S Leung Wai for the First-Named Accused
J Brunt for the Second-Named Accused

Sentence: 3 November 2017

RESERVED DECISION OF TUALA-WARREN J

The Charge

1. The accused are charged with one joint charge of knowingly have (ving) in their possession Narcotics namely methamphetamine (three(3) small plastic bags containing methamphetamine weighing at 5.9 grams), pursuant to section 7(1)(a) and 18(a) of the Narcotics Act 1967 (the ‘Act’).
2. The first named accused is charged with knowingly has (having) in his possession a utensil, namely, one(1) glass pipe for the purpose to commit an offence against this Act, pursuant to section 13(b) of the Narcotics Act 1967(the ‘Act’).
3. Both accused pleaded not guilty.
4. The charges arose out of an incident on 28 June 2017 whereby the first named accused Scott and the second named accused Fatu went in a taxi to Fagalii airport. Scott went inside the airport to allegedly uplift an envelope addressed to a ‘Penina Setu’ arriving on a Talofa Airways flight from American Samoa. Fatu waited in the taxi with the taxi driver in the car park of the airport. As it turns out, what had arrived from American Samoa was a bag for ‘Penina Setu’. Upon the bag being searched by a Customs officer, 3 packets of methamphetamine were discovered. The taxi was searched by Police and a glass pipe was found in the taxi.
5. At the end of the Prosecution evidence, Mr Brunt made a submission that there was no case to answer in respect of the charge against the second-named accused. I dismissed that application.
6. Both accused elected to give evidence.
7. This is my reserved decision.

Law

Possession of narcotics

8. Section 7(1)(a) of the Narcotics Act 1967(the Act) provides that no person shall knowingly be in possession of, or attempt to obtain possession of, a narcotic.
9. Section 18(a)(a) of the Act provides that a person who deals in or has possession of any narcotic commits an offence and is liable to imprisonment for life where a Class A narcotic was the narcotic in relation to which the offence was committed. Methamphetamine is a Class A narcotic according to the First Schedule of the Act.
10. Possession has two elements. This was referred to in the case of Police v Chan Chui-Judgment [2007] WSSC (25 September 2007) in which Sapolu CJ used the explanation by Hardie Boys J in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275. The first is the physical element and it is actual or potential physical custody or control. The second is the mental element or the element of mens rea which is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that substance is in his possession (often inferred or presumed) and the intention to exercise possession.
11. Hardie Boys J went onto say “A charge of possession of a controlled drug also requires proof of knowledge by the accused that what was in his possession is a controlled drug, although he need not know its exact nature.
12. In Attorney General v Fuaifale [2016] WSCA 3(19 February 2016), the Samoa Court of Appeal referred to the above passage in R v Cox with approval. The Court of Appeal said;

We regard the phrase “potential physical control” as relevant where a person does not have immediate actual physical possession of an item, but nonetheless the item is in his or her possession.

For example, possessions left in a home, a car or in someone’s desk at work are within their “potential physical custody”. Provided they are aware of the item, and also intend to exercise control over it, then they are in possession of the item because both the physical and mental elements of the definition is satisfied.

13. The New Zealand Court of Appeal in the recent case of Simon v R [2017] NZCA 277 (3 July 2017) interpreted the meaning of the phrase “potential physical custody and control”. The Court agreed with Tipping J’s analysis in Smith v Police (1994) 11 CRNZ 294(HC), that it is possible that the Court in R v Cox did not intend “potential” to govern the word “control” as well as the word “custody”. They say that it is possible that it was intended that the words be read as though a comma appeared before the words “or control”. They went further to say the word “potential” in everyday use involves the concept of having or showing the capacity to develop something in the future. In the context of the possession of drugs, at its extreme the use of the word “potential” could be seen as including the concept of a defendant having the possible ability to get control of drugs at some time in the future, but not having any actual control at the time of the alleged offence. It would be wrong to convict on that basis. In the case of Simon v R, the accused had actual control and custody of the items.
14. In R v McRae [1993] 10 CRNZ 61, the New Zealand Court of Appeal said that although the accused did not have physical custody of the drugs, the accused had control of them in the sense that someone had imported them on his behalf and that person was obliged to hand them over to the accused on request. In case of R v McRae, the accused had been involved in an arrangement whereby a quantity of drugs was imported from Thailand.

Possession of Utensil

15. Section 13(b) of the Act provides;

13. Miscellaneous offences-A person who:

(a)...

(b) has in his or her possession a needle, syringe, pipe or other utensil for any such purpose of the commission of an offence; or

(c)...

commits an offence and is liable to imprisonment for a term not exceeding 7 years or a fine not exceeding 200 penalty units or both.

16. The Court of Appeal set out in the case of AG v Vai [2008] WSCA 10, the interpretation of s13(b) of the Act. The Court said that an offence of this kind must be broken into two steps. The first requires proof that the defendant was in possession of the utensil. The second step is concerned solely with the defendant’s state of mind at the time of the possession. At this stage it is necessary to determine the purpose for which the utensil was possessed. If attaining that purpose would necessarily entail the commission of another offence under the Act, the primary offence under section 13(b) is complete.
17. In section 7 of the Act, which deals with the possession and use of narcotics, not only is possession or attempting to obtain possession of a narcotic an offence, but in section 7(b) it is now since 2009 an offence to knowingly procure, consume, smoke or otherwise use a narcotic.

Chain of Custody

18. In Dodgson v Police [2011] NZHC 57(16 February 2011), the High Court of New Zealand said this about the chain of custody;

Whether a reasonable doubt has been created as to the elements because of the evidence about the chain of custody is an assessment of the facts.

19. On appeal in Dodgson v Police [2011] NZCA 428(30 August 2011) the New Zealand Court of Appeal said this about the chain of custody;

How that is proved will be a matter for the Prosecution. Whether it is proved will be a factual matter for the trial judge to be assessed individually in each case.

20. In Police v Nauer (Unreported Judgment, 1 May 2007, Samoa Supreme Court), Justice Nelson said “there is no evidence suggesting or from which a reasonable inference can be drawn that anyone interfered or tampered with the yellow vehicle the night of Saturday 29^th January 2006”.
21. In R v Wang (CA 387-04 Jun 14, 2005, Glazebrook, William Young & Chambers JJ) which was an appeal against conviction, a submission was made that chain of custody evidence was insufficient to show that material analysed and found to contain the relevant drug, was the material in respect of which appellant was charged.
    It was held that there was no rule of law which required such a fact to be proved in a particular way. Accordingly, it was open to jury to infer that the capsule analysed came from capsules seized providing there was a proper evidential basis for that inference. In the circumstances there was an adequate evidential basis to support the inference and the appeal was dismissed.
22. In R v P J To [20068 BCL893, the, the High Court accepted this approach. Andrews J in R v PJ Torvald went on to say “I take into account that there is no evidence which would support an altive ence, that that to choo choose bose between them would be to guess”.

Evidence of the Prosecution

23. The prosecution called 12 witnesses.

Luanda Epa

24. Luanda Epa who is an Authorised Qualified Analyst with the Scientific Research Organisation of Samoa (SROS) Narcotics Laboratory did not need to be called as defence did not have any questions for her and her certificates of analysis were tendered by consent. The certificates confirm that all three packets she received from Police contained methamphetamine and the interior of the glass pipe also contained methamphetamine (Exhibits ‘P1’ and ‘P2’).

Constable Thor Tafunai

25. Constable Thor Tafunai took photographs of the bag sent from ‘Sera Apineru’ to ‘Penina Setu’ at Fagalii airport. He took photographs of the bag and contents of the bag which included 3 little plastic bags containing white crystal like substances. He took photographs of the taxi and the driver’s side door within which a tissue containing a glass pipe was found. He took photographs of the glass pipe. (Exhibit ‘P3’).

Piitati Tavita

26. Pilitati Tavita was the Prosecution’s main witness being the driver of the taxi in which Fatu travelled from the wharf to Scott’s home and then both accused travelled from Scott’s home to Fagalii airport. He used to work for Scott and is regularly used by Scott and his family as their taxi driver. On the day in question Scott asked Pilitati to drop his wife and daughter off and to be back at his house by 10am. When Pilitati arrived at Scott’s home, Scott asked him to pick up one of his friends from Mulifanua Wharf. Pilitati took the friend’s number so that he could locate him at the wharf. The friend was Fatu. On the way back from Mulifanua, Pilitati says Fatu asked him for a pen. Fatu then wrote down on the back of Pilitati’s cash power receipt the name ‘Penina Setu’. Fatu put the receipt in his pocket and gave the pen back to Pilitati. Pilitati said he next heard this name ‘Penina Setu’ when they arrived at the airport. He heard Fatu tell Scott “o Penina Setu lea e aumai ai le ato lea”.
27. When Pilitati and Fatu arrived at Scott’s home, they had a meal of pisupo. They then left for the airport in Pilitati’s taxi. En route to the airport, they dropped off one of Scott’s workers to Scott’s shop in town. When they arrived at the airport, they sat in the taxi for a while. Scott walked into the airport and came back out and they sat in the taxi again. Pilitati says whilst they were sitting in the taxi, he heard Fatu say “fia miti lava”. Scott replied ‘ia tutusa uma lava taua”. When the plane landed Scott walked back into the airport.
28. About 30 minutes after Scott went into airport the second time, Police arrived and searched the car. Pilitati told them what was inside the tissue. He explains how the pipe came to be in the taxi. He says that before he, Fatu, Scott and one of Scott’s workers left Scott’s home, he had asked Scott if he could use an underarm spray. Scott told him to go look in his van. Scott also asked him to bring out of the van the tissue on the driver’s side which had the pipe inside. Scott told him to be careful in case the pipe falls out. Pilitati brought the tissue and pipe, got into the taxi and put the tissue with the pipe in the driver’s door.
29. Under cross-examination by Mr Leung Wai, Pilitati said the pipe was in the door on the driver’s side of Scott’s van. He said he brought it out of Scott’s car as per Scott’s instructions. He says he has known Scott for 3 years and Scott uses the pipe to smoke his ice. Pilitati admits that he smokes ice as well but denies that the pipe belongs to him.
30. Pilitati remained adamant that it was a bag not an envelope that was discussed between Scott and Fatu. Pilitati was not charged by Police in relation to this matter.
31. When questioned by Mr Brunt about what Fatu had written in the car and that he had written down a phone number, Pilitati denied it was a phone number. He said Fatu put the receipt into his pants pocket.

Harry Samau

32. Harry Samau works for Talofa Airways at Fagalii Airport. He says he was working on 28 June 2017. He recalls a man of small statute who looked like a palagi but could speak Samoan who asked him about an envelope he was expecting on their plane. When the flight arrived, Harry says one envelope was brought. It was not the man’s envelope. Harry suggested they check envelopes which had been brought on earlier flights. Harry and Scott went into the Talofa Airways office. Harry checked the envelopes and Harry’s evidence is that when he turned around, the man was holding a bag like holding a baby. Harry took the bag off him and looked for the air waybill. The man said that was his bag to which Harry replied that he told him he was expecting an envelope. The air waybill had the same names as those which the man told him. He recalls the name Sera Apineru but cannot recall the other name. After sighting the air waybill he explained that the sender is Sera Apineru and the receiver is Penina Setu. The cargo contained dry goods according to the air waybill. Harry took the bag and headed to customs and quarantine and the man followed him. Harry left the bag with Ierome and Charles. Harry described the bag as a colourful ‘ato taga’. He identified the man he had spoken to as Scott.
33. Under cross-examination, Harry said that Scott never told him there was money in the envelope. He confirmed that their supervisor Joseph Maiava was also in the office when he and Scott went into the office but he cannot recall anyone else. When put to him that Scott did not touch the bag, he maintained that Scott was holding the bag. He denies being given $50 by Scott. He says he released the bag to Scott because although Scott did not have identification, Scott knew the sender’s name.

Charles Bell

34. Charles Bell has worked for Customs for 6 years. On the day in question he was on duty at Fagalii Airport checking bags and cargo. At about 3pm that day, Harry and Scott came to bring a bag to be checked. Charles was sitting with Ierome, a Quarantine officer. Harry gave the bag to Ierome. Ierome looked inside the bag and said there were twisties and an ie at the bottom. Charles asked for the air waybill and it had the names ‘Penina Setu’ and ‘Sera Apineru’. Neither had contact details. Charles said he started to get suspicious as he knew Scott had been charged with importing ice in 2013. He searched the bag and he felt an ie. The corner of the ie had a thick knot. Charles says before he brought the ie out, he stood up and walked to Scott and Scott said to him “uso faamolemole I can give you whatever you want I can give you $5000 each I cannot go back to that place I love my children and wife”. That is when he said he knew there was something hidden in the ie. He started to untie the ie while Scott was still pleading with him, offering to do anything he wants. Charles opened the ie and found packets of ice. Scott looked very worried, he was slapping his head and pleading. Charles then asked Ierome to hold Scott as Scott was moving very close and Charles was getting concerned about his own safety.
35. Charles called his principal officer Henry. Charles found 3 packets of ice in total. He confirms that Scott told him he had come to uplift an envelope with money from the airport. He maintains that Scott started pleading with him before he discovered the ice.

Ierome Luteru

36. Ierome is a Quarantine officer. He was working on the day in question with Charles. He was the first to search the bag and told Charles what was inside the bag. After he searched the bag, Charles searched through its contents again. Charles found the ie and found 2 plastic packets with white substances inside the ie. He says when Charles found these packets, Scott starting pleading with them, in particular Charles, that he can do anything he wants, but he does not want to go back as he loves his wife and children. When asked about the time Scott started to plead, he said it was when Charles was beginning to open the knot in the ie.

Joseph Maiava

37. During the material time, Joseph was supervisor for Talofa Airways at Fagalii Airport. The cargo on 28 June 2017 consisted of two bags and envelopes and were brought into the Talofa office and put on the ground. He had people in the office making inquiries but he does recall Harry say he was going with Scott to clear his bag from customs. He does not recall anyone else apart from himself and two customers inside the office when Harry and Scott came inside the office but does concede he might not have seen anyone else. He said the process for releasing cargo is that the person uplifting the cargo should provide identification otherwise the cargo will not be released even if the person gives the name of the sender.

Nanai Su’a

38. Nanai is ACEO of the Border Operation Division of the Ministry of Revenue. He received a call from Henry Taefu McCarthy to go to Fagalii airport where someone was being held for bringing prohibited goods into the country. He went to the airport and Charles opened the bag and showed him the ice. He asked Scott what they were and Scott replied it was ice. Scott also said he does not want to go to Tafaigata. Police officer Sue was then given the bag with the ice inside. Nanai saw three packets of ice.

Constable Eloi Stanley

39. Constable Eloi works in the Narcotics Section of the Ministry of Police. On 28 June 2017 they were informed about drugs at Fagalii Airport. He, Sergeant Toddi, Constables Sue and Ioane Tavai attended the callout. They had also been told about a taxi in the car park. Their team was divided and he and one other police officer went out to the taxi and informed the occupants of the taxi about the reason for them being there. The canine unit came through but the dogs did not find any drugs in the taxi. When Police searched the taxi, a tissue with a glass pipe was found in the door of the seat behind the driver. He brought the pipe to the office and saw there for the first time, the bag which was brought from inside the airport. He was in the Narcotics office with Constable Su’e and Scott when he put the pipe into an envelope with Scott’s phone and packets of lollies and put the envelope into the bag. They then waited around in the Narcotics office with Constable Su’e and Scott to conduct the handover of the bag to the Investigating Officer.

Constable Mozart Milo.

40. Constable Mozart works in the Canine Unit of the Ministry of Police. He received a callout about a taxi at Fagalii Airport that needed to be searched by canine. The canine’s name is Boss and Boss had been trained in New Zealand in every type of narcotic. Constable Mozart says that when Boss went through the taxi, Boss exhibited a change of behaviour which he says indicated there was a weak smell of narcotics or narcotics had been present in the car but had been removed. The police then searched the taxi and found a utensil. The canine sniffed the taxi driver and he had no interest in the taxi driver. When the canine sniffed the other person who he now knows as Fatu, the canine sat down next to Fatu which indicates that he had something on him. Upon being searched, there was a wallet found on Fatu. There was nothing found in the wallet. However Constable Mozart says the canine’s behaviour is because there was something which had been inside the wallet which was no longer there. Under cross examination, Mozart maintains that his canine is well trained. He showed interest inside the taxi but not towards the taxi driver. He sat down next to Fatu.

Sergeant Viiga Sio

41. Sergeant Viiga looks after the Narcotics Unit within the Ministry of Police. He had gone home early on 28 June 2017 but at about 6pm he received a call from Constable Su’e Mikaele that they needed assistance so he returned to the office.
42. When he arrived, Scott was in the Narcotics office which is a room separate from CID. Scott was in there with Su’e and Eloi. The bag was also in the room. Eloi and Su’e told him what had happened. Sergeant Viiga went to the CID office and Fatu and the taxi driver were there with some police officers.
43. Sergeant Viiga and Inspector Nome went back into the narcotics office and it was then that Sergeant Viiga opened the bag. The first thing he saw was the Talofa air waybill. He also saw a big envelope and a small envelope. He took out the small envelope and opened it and inside was a pipe wrapped in blue tissue, car keys, and a small packet of lollies. He put these onto the table so the Inspector could see. He put these back into the envelope. He then opened the big envelope and it had 2 telephones and an ID. He showed the Inspector and put the contents back into the envelope. He brought out an orange ie from the bag and opened it gently. Inside he saw packets with small substances inside. He put these on the table and no one touched them. Once the Inspector had seen these, he put these back in the ie and the ie back into the bag. The bag remained in the narcotics office on the table until investigations were completed that night. When Sergeant Viiga decided to lay charges, Eloi and Sergeant Viiga interviewed Scott in the Narcotics office and Su’e and Talalelei interviewed Fatu in the CID office. After the investigations that night, Sergeant Viiga put the bag into the exhibits room. He has a key for the exhibits room.
44. The next morning around 10am he handed over the bag with all its contents to exhibits officer Constable Alapati Moafanua, to label and register the contents.
45. Under cross Sergeant Viiga said a fingerprints test was not conducted on the pipe.

Constable Alapati Moafanua

46. Constable Alapati received the items on 29 June 2017 from Sergeant Viiga. He registered them and weighed them. The items he received were 3 small plastic bags suspected of containing ice. The weight of the first plastic bag was 1.8 grams, the second weighed 2.2 grams and the third weighed 1.9 grams. There was also a pipe suspected of being used to smoke ice. It was a clear pipe but had charring like it had been burnt. The items were then sealed in envelopes and labelled with the names of those charged and given an exhibit number and a reference number. He stored these in the exhibits room.
47. On 24 August 2017, he prepared a sample from the three plastic bags which he gave together with the pipe to scientist Luanda.

Defence Evidence

48. Both accused chose to give evidence.

Scott Barlow

49. Scott’s evidence is that the night before 28 June 2017 he received a call from Fatu saying that he needs some quick money because he is building a house in Savaii and asked Scott whether he could help him by selling some ice for him. Fatu told Scott that he would be arriving on the morning boat and leaving again on the afternoon boat. He asked Scott to pick him up from the wharf. Scott told him he would send someone.
50. The next morning Scott sent Pilitati to pick Fatu from the wharf. Scott says his understanding was that Fatu was bringing the ice with him. So Scott got Junior to prepare pisupo because he says it is good to have something to eat before smoking ice. According to Scott, after they ate, Fatu asked them to go to Fagalii to pick up an envelope with some money sent from Pago to help with the buying of materials he needs to take back to Savaii.
51. They dropped off an employee to town and then headed out to the airport. When they arrived at airport, Scott told Fatu to make sure to tip someone so that his envelope does not get lost. Fatu asked Scott if he could go and collect the envelope as he does not know anyone. When Scott asked him for some money for the tip, Fatu said he only had US dollars.
52. Scott went into the airport and found Harry. He says he gave Harry $50 of his own money and told him there is an envelope arriving from American Samoa and to make sure the money arrived safely. Harry told him the flight had not arrived so Scott went back to the car and smoked a cigarette. Scott says Fatu said to him “fia miki” to which Scott replied “ae a foi”. Scott says he understood ‘fia miki’ to mean ‘fia miki le aisa’.
53. When the plane arrived Scott walked back to meet Harry who was holding 2 envelopes. Harry said there was no envelope from Penina. Scott was walking away when Harry called him to go with him to the office to check if the envelope had come on an earlier flight. So Scott went with Harry into the office where Joseph Maiava was sitting at a desk. Harry looked through envelopes in the drawer of the desk while Scott said he spoke to a guy in the office who asked where he was going. Scott told the guy that he was there to pick up an envelope from Tutuila. Harry meanwhile said he could not find the envelope. Scott says the guy he was speaking to asked for the name of the receiver. Both Scott and Harry answered ‘Penina Setu’. The guy then reached for the bag and said here it is. The bag had a label with the names of the sender and receiver. Harry grabbed the bag, put it on the floor, unzipped it and said there is no envelope in the bag. Harry closed the bag and Scott followed him out to Customs and Immigration. Scott said he knew the sender’s name Sera Apineru and the receiver’s name Penina Setu from Fatu.
54. The junior quarantine guy went through the bag and cleared it. Then the senior customs officer took the bag and searched it. He took out chocolates and lollies and then an ie where a knot could be seen on the corner of the ie. Scott said he started to worry. The customs guy was asking ‘what is this’. Scott told him he was there to pick up an envelope not a bag. The customs guy opened the ie and two bags were there and Scott said he knew they were crystal meth so he said it was ice. Scott started to plead with him to have some compassion as he does not want to go to jail because he loves his children and wife. Scott says he did offer the Customs guy $5000. But the guy made a phone call while Scott was still pleading with him. Scott was adamant that he started pleading with Charles(the customs guy) after Charles had opened the knot in the ie.
55. Scott says he offered his service to help Fatu sell ice because he would get some to smoke himself.
56. The Police and ACEO of Customs arrived and Scott told the ACEO that Fatu was outside in the taxi because the ACEO said the only way to make things easier for him was to tell them who owned the stuff.
57. In relation to the pipe, Scott says it does not belong to him. He does not have a pipe and the pipe did not come from his van or his house. He says the pipe is Pilitati’s and that he mentioned to Pilitati that it is a bad quality pipe. He does not own a pipe as his wife conducts spot checks.
58. Under cross-examination by Mr Brunt, Scott denies that Fatu was coming over to pick up $3000. Scott says that the money from Fatu was given straight to the Bluebird contact.
59. Scott says that Fatu has supplied him with ice before and when he first met Fatu at Fatu’s brother in law’s house, he and Fatu smoked ice.

Fatu Vagana

60. Fatu Vagana lives in American Samoa with his wife and 6 children. He has lived in American Samoa for 32 years. He is also from Savaii. He says around Mother’s Day he came from American Samoa hoping to build a house for his mother in Savaii. His evidence is that sometime in early June he met Scott at his brother in law’s place at Vaitele. Scott and his brother in law were talking about building materials but he did not speak to Scott.
61. When construction started, he and his brother in law went to Scott’s home to ask for assistance in obtaining building materials as the materials in Savaii were not to his liking. He also said he needed the assistance of a person in Upolu as he has been in American Samoa for many years. He spoke to Scott for about 20-30 minutes to finalise the amount of money to be given to Scott for the building materials. Scott said he needed $7000 but after discussions they agreed on $3000. He went to the ATM and withdrew $2000 and he had $1000 cash on him. This was counted out and given to Scott. The agreement was that Scott would deliver the materials to Vaitele and Fatu would transport the materials to Savaii. These materials have still not been supplied and the house is complete.
62. On 16^th June Fatu’s sister died. Fatu asked Scott for the money to help with the funeral instead of the building materials. He says he called Scott more than 10 times for the return of his money. Fatu confirms he did speak to Scott the evening before 28 June about the money
63. On 28 June when Fatu was on the ferry coming over, he says Scott called him. He told Scott he was on the boat and he was on his way to get his money. Fatu asked Scott to send someone to pick him up. When he arrived at the wharf Pilitati was there. They headed to Apia. On the way to Apia, Fatu says he received a phone call so he asked Pilitati for a pen and paper to write down’ le telefoni ona toe vili mai lea’. He then says it was a name which was in his wallet but it was not the name Penina.
64. Just before arriving at Scott’s house, Fatu says that the driver was going to stop at someone’s house to pick up some food. Fatu told him to go straight to Scott’s house because he was afraid someone might beat him up that morning. So they went to Scott’s house.
65. Upon arrival at Scott’s house, he, Scott and Pilitati had something to eat. After eating they left Scott’s home in the taxi. He sat behind the taxi driver because he says this is the safest place to sit in an accident. He says he thought they were going to get his money. He says he was not aware they were going to the airport. He says he never once asked Scott where they were going nor did he ask Scott for his money since arriving.
66. He says when they arrived at the airport, Scott walked into the airport. He did not speak with Scott. He says he did not know anything.
67. Fatu says he has no understanding of ice and he does not consume it or wish to consume it.
68. Under cross examination, he says he wrote on the piece of paper a telephone number not a name. When asked why he wrote the number when the number was stored on the phone when he received the call, he said the telephone he brought from Savaii is not registered under his name. He initially said he does not know who owns the phone he brought from Savaii then he said it belongs to one of his tei teine.
69. Since Mother’s Day to 28 June, Fatu says he has been to Upolu from American Samoa four times.

Moadin Lemalu

70. Moadin is Fatu’s brother in law. He was the second witness for Fatu. He first met Scott outside his workplace at Apollo Cinemas and introduced Scott to Fatu when Scott came to his house one evening around the end of May this year.
71. He confirms Fatu’s evidence that they went to Scott’s house to discuss building materials and that Fatu gave Scott $3000. He says he counted the money and gave it to Scott and Scott said he would deliver the materials to Moadin’s house at Vaitele in 2-3 days. When the materials were not delivered he said Fatu called him to follow up. He told Fatu he was too busy and that was the end of his involvement in the matter. He denies that anyone smoked ice at his house when Scott first met Fatu.

Discussion

72. Essentially there are two main issues to be determined. Firstly were the accused in possession of the 3 packets of narcotics which arrived in the bag from American Samoa, and secondly was Scott in possession of the utensil which was found in the taxi. The other issue which was raised by Defence Counsel is a break in the chain of custody which I will deal with.

Issue 1: Were the accused in possession of the 3 packets of narcotics?

Findings of Fact

73. There are key conflicts between the evidence of Scott and Fatu in relation to the bag from American Samoa. Scott says he was expecting an envelope of money from American Samoa and he was uplifting it on instructions of Fatu. Fatu says that he never instructed Scott and had no knowledge of why they were at the airport that day. He was in the car awaiting money he says Scott owed him for an order of building materials which never arrived. Both deny knowledge of the bag and of the narcotics.
74. Pilitati the driver of the taxi says that Fatu had written down the name ‘Penina Setu’ on a cash power receipt on the way back from the wharf and heard Fatu tell Scott “o Penina Setu lea e aumai ai le ato lea”. Scott says he knew the names of the sender and the receiver from Fatu.
75. It comes down to my assessment of credibility and reliability of the witnesses. I believe Pilitati in relation to what he heard and what he saw in relation to the name ‘Penina Setu’. Both the accused have a motive to be less than truthful as both are trying to shift and avoid blame and responsibility for this very serious offence. Pilitati has no reason to lie in relation to what he heard and what he saw. He came across as forthright in his recollection of the name Fatu wrote down during the drive back from the wharf and of what he heard Fatu say to Scott in relation to a bag arriving and the name Penina Setu. I accept that Fatu shared this information with Scott and Pilitati heard it. Pilitati was steadfast in his evidence and I found his evidence to be dependable. The fact that he admitted to smoking ice too has no bearing on his role as the taxi driver to the airport.
76. I found Scott to be anxious and fraught when giving his evidence. The reason is clear. He does not want to go to jail. He expressed as much to Charles, Ierome and Nanai at the airport. I find Scott knew that what was arriving was a bag and what was inside the bag was ice. Fatu had told him it was a bag. I accept both Charles and Ierome’s evidence that Scott started pleading with them before Charles opened the knot in the ie which contained the packets of methamphetamine which means Scott knew there was ice in the bag. I find that both Charles and Ierome have no reason to misconstrue the sequence of events that day. Charles in particular has been with Customs for 6 years. His evidence was clear and coherent. He was alerted to the bag by the fact that the names appearing on them were different from the person who was there to claim the bag. He was aware of Scott’s previous history with Customs. I found Charles to be convincing and persuasive.
77. I found Fatu to be unconvincing and evasive. I do not accept his evidence that he wrote down a phone number in the taxi for the reason that the number of whoever had called him would have been stored in the telephone that he had. This is unbelievable and implausible. He went on to say that it was a name in his wallet but it was not the name ‘Penina’. This is a clear inconsistency in his evidence.
78. Both the evidence of Scott and Pilitati is consistent in regards to what Fatu said in the taxi at the airport being “fia miti” and Scott’s reply along the lines of ‘me too’. Fatu denies this outright and I am not convinced by him. I do not accept that Fatu is the innocent passenger as he makes out. For someone who claims he is very careful of where he sits in a car and was afraid of getting beaten up if he goes to a home he does not know, he says he sat there during the drive from Scott’s home, to town and then to the airport and did not once ask Scott where they were going. This is a very unlikely story.
79. Fatu also gave inconsistent evidence in relation to the phone he had on him that day. Initially he said he does not know who owned the phone and then he said it belongs to one of his ‘tei teine’. He came across here as being less than truthful.
80. Fatu’s brother in law Moadin gave evidence about the $3000 Fatu gave to Scott for building materials. The $3000 which Fatu says was given to Scott provides a convenient explanation for why Fatu was with Scott on 28 June 2017. Moadin’s evidence is to corroborate Fatu’s evidence. However I approach Moadin’s evidence with caution. He came across as very close to Fatu.
81. I accept Scott’s evidence for sending Pilitati to the wharf to pick Fatu. It was because Scott Fatu needed Scott’s help to sell ice. Fatu’s story that Scott picked him up because Scott owed him $3000 is implausible, given Fatu says he called Scott more than 10 times for the return of his money. Fatu says since his arrival that day he never asked Scott for his money. This is inconsistent with his evidence that he was desperate for money and called Scott more than 10 times prior to coming from Savaii.
82. The evidence of Constable Mozart about the change of behaviour by the canine Boss towards Fatu is very compelling. The canine has been trained in New Zealand in every type of narcotic. Boss exhibited a change of behaviour in the taxi and a pipe was found in the taxi. Boss sat down next to Fatu which indicates that Fatu had some narcotic substance on him. Constable Mozart says that although upon being searched nothing was found in Fatu’s wallet, the canine’s behaviour revealed that there was something which had been inside the wallet which was no longer there. I have no reason to doubt the change of behaviour exhibited by the canine.
83. The reason why I find this evidence compelling is because Fatu in his evidence says he has no understanding of ice, does not use it and has no desire to use it. But the change of behaviour by Boss by sitting down next to Fatu indicates he had some narcotic on him recently. When this evidence is coupled with what I believe he said in the taxi to Scott about ‘fia miti’, it convinces me that Fatu is not being honest and sincere in giving his evidence.
84. Much evidence was called in relation to Scott’s belief that he was there to pick up an envelope of money. I do not find that this was his true belief even if he expressed it to those at the airport before and after the bag had been searched. He has a motive to exculpate himself as I find he knew that drugs were being brought in from American Samoa. I find the drugs were arranged by Fatu who gave the name of the sender and receiver. Not only is there direct evidence from Scott and Pilitati which I believe in relation to Fatu being the one who knew the names of the receiver and the sender, I find that Fatu also had the opportunity to arrange this cargo from surrounding circumstances. He lives in American Samoa. He has lived in American Samoa for 32 years.He says he has been back and forth from American four times since Mother’s day which falls within the month of May. His connection to American Samoa is very strong circumstantial evidence which I cannot disregard. He also by his own evidence said he needed a person in Upolu for his building materials because he has been in American Samoa for many years. Scott said and I accept that Fatu asked for his help to sell ice. These established facts lead to very solid inferences about Fatu’s involvement in organising the bag for Penina Setu.
85. Now that I have made findings of fact that both Scott and Fatu knew about the arrival of the drugs and went to pick up the drugs, I must assess those findings against the elements of their joint charge of possession of narcotics.

Chain of Custody Issue

86. However before considering the elements for possession of narcotics, I must first be satisfied that the substance is a narcotic in terms of the Narcotics Act 1967. This is established by scientific testing and analysis by an authorised analyst for the purposes of the Narcotics Act 1967.
87. The accused submit that there is a break in the chain of custody which essentially throws into doubt whether the same substances discovered at the airport were the same substances that were tested by SROS. They submit this is because Constable Su’e Mikaele was not called. Constable Su’e Mikaele was the Police officer who transported the bag from the airport to the Police Station. Prosecution advised the Court that Constable Mikaele was overseas.
88. It is undisputed that there were three packets of crystal like substances in the bag which arrived from American Samoa. These were photographed by Constable Thor at the airport (photograph 9 of ‘P3’). Both Charles and Nanai saw the 3 packets. It is undisputed that the substances tested by SROS were methamphetamine. The question is whether the same crystal like substances discovered at the airport were the same substances tested by SROS and confirmed to be methamphetamine. Put another way, has the lack of evidence about custody of the substances from the airport to the Police Station created a reasonable doubt.
89. I find that although Constable Mikaele was not called this does not create a reasonable doubt. According to Constable Eloi, when he arrived from the airport, he put two envelopes into the bag which was in the Narcotics office. According to Sergeant Viiga when he arrived the bag was on a table in the narcotics office in plain view of Scott. When the packets of alleged ice at this stage were taken out by Sergeant Viiga, there is no evidence that Scott raised an issue that these were not the packets he saw Charles open out of the ie at the airport. Sergeant Viiga says these packets remained on the table until Inspector Nome saw them. Then he put them back into the ie and back into the bag which stayed on the table until he locked the bag in the exhibits room that same night. They were handed to Constable Alapati who then prepared samples from the three packets and delivered them to SROS.
90. I am satisfied that even without Constable’s Mikaele evidence, there is other reliable evidence which establishes the connection between the drugs discovered at the airport and those tested by SROS and found to be methamphetamine. In these circumstances there is an adequate evidential basis to support the inference that the substances discovered at the airport are the same substances which were tested by SROS and found to be methamphetamine. Furthermore there is no evidence suggesting or from which a reasonable inference can be drawn that the 3 packets of crystal substances found at the airport on 28 June 2017 were not the packets which Sergeant Viiga removed from the bag in the Narcotics office. There is no evidence which would support an alternative inference. There is also no evidence suggesting or from which a reasonable inference can be drawn that anyone interfered or tampered with the three packets before Sergeant Viiga came into possession of them. The fact remains that the bag with its contents was brought from the airport into the Narcotics office at the Police Station.
91. I am satisfied beyond reasonable doubt that the same substances discovered at the airport were those delivered to SROS and which SROS found to be methamphetamine.
92. I accept what was discovered at the airport is in fact methamphetamine, I need to assess this finding against the elements of possession.

Elements of Possession of Narcotics

Physical Element

93. The first element of possession is the physical element and it is actual or potential physical custody or control.
94. I agree with the reasoning in Simon v R. This means that the physical element is “actual or potential physical custody, or control”.
95. This is not a case of Scott and Fatu having the possible ability to get control of the drugs sometime in the future. There is certainty in the arrival of the drugs which had been organised by Fatu. Fatu knew the name of the sender and the receiver and those were the names on the bag (Photographs 01, 02, 04 of Exhibit ‘P3’) and the air waybill (Exhibit ‘P5’). Both accused went to the airport to pick up the drugs. Scott went into the airport to uplift the drugs. The drugs had arrived and had it not been for its interception by Customs, the drugs would have been in the actual physical custody of Scott and Fatu. The argument that because the drugs did not make it into the actual physical custody of the accused means that the first element is not satisfied, is with respect, not accepted given the facts of this case. There is no dispute that Scott and Fatu did not have actual physical custody of the drugs at the time of the offending. I will assess the accused separately.

Scott

96. Once the plane landed with the drugs on board, Scott had potential physical custody as there was certainty in its arrival, it actually arrived on the plane in the bag, the bag was inside Talofa office, Scott knew the names of the sender and receiver, and Scott followed Harry to customs and quarantine to clear the bag. All that remained was for the bag to clear customs and quarantine. At the time of the offending, Scott had potential physical custody of the drugs.

Fatu

97. In this case, Fatu had similar control of drugs as in the case of R v McRae, in the sense that he knew a bag was coming for ‘Penina Setu’, he wrote the name ‘Penina Setu’ on a receipt, he told Scott the names of the sender and receiver and the bag which arrived clearly had the name ‘Penina Setu’. They were at the airport waiting for the bag which arrived and the bag would have been handed over to Scott and subsequently Fatu if Charles had not discovered the substances. Even if the word ‘control’ does not mean “potential control” but rather “actual control”, I am satisfied that the Fatu had actual control of the drugs at the time of the alleged offending as he was aware of the drugs and he intended to exercise control over the drugs.

Conclusion

98. I am satisfied beyond reasonable doubt that the evidence supports potential physical custody of the drugs by Scott and, actual control of the drugs by Fatu at the time of the alleged offending. The physical element of possession is satisfied.

The Mental element

99. The second element of possession is the mental element or the element of mens rea which is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession (often inferred or presumed) and the intention to exercise possession.
100. I am satisfied that both accused knew of the drugs, and intended to exercise possession of the drugs. I infer this from the findings of fact that Fatu knew there was a bag arriving for ‘Penina Setu’ which in fact contained methamphetamine. He told Scott the name of the sender and the receiver. He told Scott that it was a bag arriving with the name ‘Penina Setu’. Scott knew they were going to the airport to uplift drugs. They went to the airport in Pilitati’s taxi. Scott instructed Pilitati to bring his pipe from his car as he knew they would be smoking ice. Whilst waiting for the drugs Fatu said to Scott “fia miti lava” to which Scott replied me too. Scott understood this to mean smoking ice. These facts indicate that Scott and Fatu knew ice was arriving and they were waiting for it and had intended to possess the drugs once the plane landed. Scott started pleading with Charles and Ierome when Charles was beginning to open the knot in the ie. Scott knew drugs were inside the knot in the ie. When ACEO Nanai Su’a asked Scott what the substances were when he arrived at the airport, Scott replied that they were ‘aisa’. Scott knew that the substances that had arrived were ice.

Conclusion

101. Both accused had knowledge in the sense of an awareness that the substance is in their possession and they both had the intention to exercise possession.

Issue 2: Whether Scott was in possession of the utensil which was found in the taxi

Findings of Fact

102. The key conflicts in the evidence in relation to the pipe are between Pilitati and Scott. Pilitati says he brought the pipe out of Scott’s van upon Scott’s instruction before they left Scott’s home for the airport. Pilitati says that Scott uses the pipe to smoke his ice and that he also smokes ice. On the other hand, Scott denies that the pipe is his and says it belongs to Pilitati. He says he commented on Pilitati’s pipe being of poor quality. Scott also admitted to being a user of ice but says that he does not have a pipe because his wife conducts spot checks.
103. Firstly in terms of credibility between these witnesses, I found Pilitati to be more credible and sound. There is no evidence that Pilitati had any knowledge of anyone smoking ice that day. Scott was certain that they were going to smoke ice. He admitted that he had plans to smoke ice that day with Fatu. That is why he had food made and ate because he says it is good to eat before smoking ice.
104. I accept that the pipe was inside Scott’s van. I accept he asked Pilitati to grab the tissue with the pipe from his van. This is because Scott knew that he would be smoking ice once the ice arrived at the airport and prepared for that event by asking Pilitati to bring the pipe. I accept that Pilitati brought the pipe into the taxi and put it into the driver’s door.
105. Upon discovering the pipe, Constable Eloi put the pipe into an exhibit bag, took the exhibit bag with the pipe inside from the airport to the Narcotics office where he put the exhibit bag inside the bag on the table. He did not leave the room until handover of the bag to Sergeant Viiga. When Inspector Nome and Sergeant Viiga went into the Narcotics office, Scott and Constable Eloi were in the office with the bag. The envelope containing the pipe was the first envelope Sergeant Viiga took out of the bag to show Inspector Nome. The pipe’s safe custody to the Narcotics office is satisfied.
106. Constable Eloi described the pipe as about 4 inches long, the front is round, there is a small hole in front of the rounded part and the bottom of the pipe seems to have been burnt by fire. Constable Alapati also described the pipe and said it seems like the pipe had been burnt because it was no longer clear and the pipe was a clear pipe. Constable Alapati has been in narcotics for 11 years. He had been to training in New Zealand in 2014 where he learnt the different methods of using ice. He says that one of the ways to consume ice is to use the pipe like the one discovered at the airport. The ice is put into the pipe and burnt.
107. Constable Eloi’s evidence about putting the pipe into an exhibits bag and taking it to the Narcotics office and putting it into the bag on the table, Sergeant Viiga’s evidence as to the storage of the pipe and methamphetamine in the exhibits office, the registration by Constable Alapati and the delivery of the pipe to SROS is reliable evidence which I accept as evidence of the safe custody of the pipe. I do not find that there was a break in the chain of custody in relation to the pipe.
108. The SROS report then describes the pipe received from Police as a clear pipe with some charring or burn marks on its interior, about 7cm in length, with a round bottom and an open shaft. It also had a circular perforation or hole in the round bottom of the pipe. The interior of the pipe was confirmed to have contained methamphetamine. (Exhibit ‘P2’).

Elements of Possession of utensil for the purpose of the commission of an offence

109. The elements which must be satisfied beyond reasonable doubt for this offence are;

Physical element of possession of the utensil;

Mental element of possession of the utensil;

The utensil is for the purpose of the commission of an offence.

Physical element

110. Scott did not have immediate actual physical custody of the pipe when the Police searched the taxi and found the pipe. Scott was inside the airport. However he was aware of the pipe and intended to exercise control over it. I am satisfied that Scott had actual control of the pipe. He could have requested the pipe from Pilitati at any time and Pilitati was obliged to hand it over to Scott on request because the pipe belonged to Scott and was brought into the taxi upon Scott’s instruction from his van.

Mental element

111. Scott was aware of the pipe. The pipe was in his van and had been put into the taxi on his instruction. Scott intended to use the pipe that day to smoke ice. He had eaten in anticipation of smoking ice.

Utensil for the purpose of the commission of an offence

112. The pipe is used to smoke ice according to the evidence of Constable Alapati which I accept. Scott is aware that the pipe is used to smoke ice. Smoking a narcotic is an offence under s7(b) of the Act. This is the same pipe which was taken from Scott’s van by Pilitati and put into his taxi. This was the same pipe found by Police in the taxi at the airport car park and subsequently tested by SROS.

Failure to Produce the pipe at trial

113. Defence submits that Prosecution’s failure to produce the pipe as an exhibit should be taken into account, together with what they submit are other flaws in the Prosecution case to show that Prosecution has failed to prove beyond reasonable doubt possession of the pipe by Scott . I would accept this argument if I found that there were other flaws in Prosecution’s case.
114. However I do not accept there was a break in the chain of custody in relation to the pipe. I accept the pipe’s safe custody from the airport car park to the Police Station and subsequently to SROS.
115. I accept that the pipe was not produced as an exhibit at trial. However there was no question that this pipe was discovered in the taxi and taken by Constable Eloi to the Police Station where he put it into the bag. Scott and Pilitati both saw and knew of the pipe. There is no question about the existence of the pipe. The questions were aimed at the ownership and possession of the pipe.
116. The onus is on the Prosecution to produce the best evidence to prove the charge against the accused beyond reasonable doubt. It is then for me to assess the evidence produced at the trial against the standard of proof.
117. I am aware that I must be satisfied beyond reasonable doubt that the pipe from Scott’s van was the pipe found in the taxi at the airport. I have accepted as reliable, evidence from the Prosecution which identifies the pipe and which satisfies me of the safe custody of the pipe from the airport to SROS for testing. I do not find that the failure to produce the pipe at the hearing is fatal to the Prosecution case in proving the charge beyond reasonable doubt against Scott, or that it creates a reasonable doubt.
118. I am satisfied beyond reasonable doubt that the elements of the charge of possession of a utensil, namely the glass pipe in photographs 15 and 16 of Exhibit ‘P3’ have been proven beyond reasonable doubt.

Conclusion

119. Scott was in possession of the pipe for the purpose of smoking ice which is an offence under the Act.

Result

120. For the foregoing reasons, I am satisfied beyond reasonable doubt that Scott and Fatu were in possession of narcotics, namely methamphetamine.
121. I am also satisfied beyond reasonable doubt that Scott was in possession of a utensil, namely a glass pipe for the purpose of smoking methamphetamine which is an offence under the Narcotics Act 1967.
122. Both accused are remanded in custody until sentencing on 28 November 2017 at 12.30pm. Pre-sentence reports are ordered for both.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN