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Police v Aloese [2021] WSSC 10 (26 February 2021)

SUPREME COURT OF SAMOA
Police v Aloese [2021] WSSC 10

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PITOITUA ALOESE, male of Fa’atoia.
First Defendant

AND:

AJ ROACHE, male of Lotopa and Sinamoga.
Second Defendant

AND:

STEWART TUITAMA STEWART, male of Faleasiu and Falelima.
Third Defendant

AND:

SANELE SCHUSTER, male of Alamagoto.
Fourth Defendant

AND:

ESTHER TANI, female of Tufuiopa.
Fifth Defendant

AND:

ANA TAIMUA FUIMAONO, female of Vaiusu and Vailuutai.
Sixth Defendant

Counsel:
A Matalasi and T Sasagi for prosecution
C Vaai for first defendant
T Atoa for second and third defendants
H Schuster for fourth defendant
I Sapolu for fifth defendant
M Soonalole for sixth defendant

Hearing: 07 – 11 December 2020
Submissions: 18 January 2021
Decision: 26 February 2021

DECISION OF THE COURT

1. There are a number of charges that face the defendants: firstly S2315/19 that at Fa’atoia on the 26^th day of December 2019 they knowingly had in their possession five (5) glass pipes for the purposes of committing an offence under the Narcotics Act 1967. Secondly same place same date they were knowingly in possession of methamphetamine weighing 2 grams. Thirdly same place same date had in their knowing possession twenty-three (23) marijuana cigarettes securely wrapped in white rolling paper weighing in at 12.3 grams. Fourthly same place same date knowingly in possession of loose green marijuana leaves weighing 25.9 grams. Next the same place same date that they were in knowing possession of two marijuana branches weighing 7.8 grams.
2. They are further charged that at Fa’atoia on 26 December 2019 they were knowingly in possession of an unlawful weapon namely one (1) 38 special revolver. Further at the same date same place they were knowingly in possession of another unlawful weapon namely a modified 22 rifle. There are two further firearm charges same date same place knowingly in possession of unlawful ammunition namely two (2) twelve gauge shells. Lastly same date same place knowingly in possession of six (6) single shot ammunition. The defendants therefore jointly face nine (9) charges.
3. In addition to that the third defendant Stewart Tuitama is charged with four (4) extra charges: firstly that same date same place he was in possession of one (1) small ziploc bag containing methamphetamine weighing 7.8 grams. Secondly same place same date knowing possession of loose marijuana leaves weight 105.2 grams. Thirdly same date same place knowing possession of one (1) marijuana branch weighing 3.8 grams. And finally same date same place knowing possession of two glass pipes for the purposes of committing an offence contrary to the Narcotics Act 1967.
4. The additional charges against Stewart as I understand it represent the materials allegedly found in his backpack by the Police on the day in question.
5. To all these charges defendants have pleaded not guilty. Except for the first defendant Pitoitua Aloese who pleaded guilty and was called by prosecution as their star witness. His case is being dealt with separately by the court and in terms of section 64 of the Evidence Act 2015 he is a competent and compellable witness against his co-defendants. No issue was taken with this at the trial.
6. At trial, the defendants indicated they did not dispute that the narcotics in question are in fact prohibited narcotics as alleged in terms of the First and Second Schedule respectively of the Narcotics Act 1967. The dispute centered around the issue of possession and by which defendant or defendants.
7. The evidence of Pitoitua was that on 26 December 2019 there was a gathering of the defendants at his house at Fa’atoia. He was then at home with his wife Esther Tani the fifth defendant when his co-defendants began arriving one by one at different times. First was Ana Fuimaono with a bag of marijuana. He has known her for about five (5) years and has been involved in drug matters with her. He said she is from the villages of Faleatiu and Vailuutai.
8. Half an hour later, the defendant AJ Roache arrived to help with the renovation of his house because AJ is a carpenter. In his testimony to the court, AJ agreed he visited to help with Pitoitua’s renovations. But maintains that is all he did and denied any linkage to the narcotics found on the premises. Pitoitua said however that he offered AJ some ice and AJ accepted and they smoked together in his bedroom. From page 26 of the transcript of evidence:

“Na faapena foi ona taunuu atu AJ na alu atu i totonu o le potu e faasino mai ia te a’u poo le a le plan ina o le renovate ina o le fale pei ona tou silasila iai i ata. Ae peitai na ou avea le aisa ia AJ Roache o a’u lava na avea iai ma miti ma ula ai AJ Roache i totonu o le potu.”

9. About one and a half (1½) hours after AJ arrived, he said the defendant Stewart arrived with a bag. He said he does not know Stewart well but Stewart is a close associate of Ana. Furthermore that Ana and Stewart were engaged in exchanging ice for marijuana in the bedroom. Stewarts ice for Ana’s marijuana. They then all continued smoking marijuana and ice in the bedroom. Reference is made to page 26 of the transcript of evidence:

“Tali: Sa faapea ona talanoa ma Ana ma ou te iloa ma ou mautinoa o le fesootaiga lea ona ose fesuiaiga tau mariuana ma le aisa. Sa faapea e fetaui i lo’u fale, o lo’u fale lea sa feiloai ai i totonu o lo’u potu ma fai ai le fesuiaiga.

Fesili: O lea e te taua le fesuiaiga lea, e mafai ona e tago e faatusa mai le mea lea e fai ai le fesuiaiga lea ma le mea lea na e iai i le taimi lea na taunuu atu ai Stewart?

Tali: Pe a ma le tasi le mita.

Fesili: Ia faaauau lau molimau mai le fesuiaiga lea?

Tali: O le fesuiaiga o le mariuana o le aisa. O le aisa na alu atu ma Stewart faapena ai ma ni mariuana lusi. Ou te molimau atu ua maea le fesuiaiga ona fai ai lava lea o le matou ulaulaga i totonu o le potu, le ma potu moe.

Fesili: O a mea ia na tou ulaina i le taimi lea na taua i tou ulaulaga ia?

Tali: O loo maua i ata o le matou ulaulaga na fai i mea na ei totonu o ata o mariuana faapea ma aisa.

Fesili: O ai sa i totonu o le potu i le taimi lea na fai ai le ulaulaga lea?

Tali: O a’u o Ana faapea AJ ma Stewart.

Fesili: O ai sa ulaina mariuana ma aisa lea e te taua?

Tali: Sa ula uma lava e matou.”

10. Pitoitua went on to say that while the party was in progress, the defendant Sanele Schuster arrived. By this time it was evening. He said he has known Sanele for over ten (10) years. He often comes to him for marijuana as he did on this particular day. His evidence was that Sanele also joined the party smoking marijuana obtained from Ana. Reference is made to page 27 of the transcript:

“Tali: E lei leva na matou i totonu pe a ma le afa itula talu ona taunuu atu Stewart ae afe loa foi ma le taavale a Sanele. O Sanele o le masani a lea a Sanele e faigaluega i le Seana e afea lava e Sanele lo’u fale a’o lei alu e faigaluega i le afiafi. Ia na faapea foi na oo atu o ia, na alu atu e fia ula i se mariuana. Aua o la ua na iloa, ou te iloa o le latou fesootaiga i le telefoni na ia iloa ai o loo iai i o ē o loo feagai tonu ma le aumaiga o lenei fualaau faasaina o le mariuana. O lea na taunuu atu ai i totonu ma matou ulaula ai faatasi ma Sanele ma maua ai lana mariuana ia Ana.

Fesili: E faafefea na e iloa o lea e fiaula Sanele i se mariuana?

Tali: O le tala muamua lea a Sanele I le taimi na taunuu atu ai poo maua se mariuana.

Fesili: O ai na fai agai iai?

Tali: Na fai agai ia Ana

Fesili: Ao fea na e te iai I le taimi lea e fai a le tala lea a Sanele?

Tali: O lea maute faafesagai lava i totonu o le ma potu moe.”

11. While the gathering continued in the bedroom, Pitoitua’s further evidence was that Esther then left to cook some food. Esther at the time was 8 months pregnant and there is no evidence she participated in the smoking party in the bedroom. Only that she was there and according to the evidence of her mother Molini Alema was earlier in the day assaulted by Pitoitua in the locked bedroom. A fact confirmed in cross-examination by Pitoitua which caused the mother to seek help first from Pitoitua’s neighbours who told her “e fasi so’o lava Esther” and advised her to call the Police. Which she did. Resulting in the Police raiding Pitoitua’s house later that evening.
12. It was Esther coming out of the bedroom who discovered the Police had arrived and were in the process of raiding the property. As shown on Pitoitutas CCTV cameras mounted on the outside of his house. A security precaution that is quite common amongst drug-dealers.
13. It was Esther who screamed out a number of times “Leoleo”. This broke up the party and it then became every man for himself and I quote from page 27 of the transcript:

“Tali: O le taimi lava lena, e leai se va. O le taimi lava na ee atu ai o lea ua omai, o le taimi lava lena na taape ai le matou faalapotopotoga ae sue le mea e ola ai le tagata ina ua vaai mai ua o atu leoleo.

Fesili: O lau molimau lea e te faapea mai na tamomoe mai fafo. O ai lea na tamomoe mai fafo?

Tali: O Ana, Sanele, Stewart ma AJ o i latou uma lava ia pei ona ou taua i la’u faamatalaga muamua.

Fesili: O lea e gata lau fa'amatalaga lea na e tago tauai mea i tua o le tioata lea ei totonu o le potu, faaauau mai iina lau molimau

Tali: Na faapena loa ona ou lokaina mai le potu, ae ou faalogo mai ua taei tioata o lou fale le potu la ei tua, ou faalogo mai ua fai le taufetuliga a leoleo ma i latou na feosoi i fafo i le faamalama o lou fale agai tua i le tuaoi.”

14. This evidence is partly corroborated by the independent evidence of a taxi driver Makisi Hunt. He said that after 5:00 p.m. he was called by the defendant Stewart to come and pick him up. After receiving directions, he went to the house and noticed that it was all closed up. After waiting outside for some twenty (20) minutes, he knocked on the door which was answered by a woman who told him “Stewart said to wait”. He said he waited for a further twenty (20) to thirty (30) minutes when suddenly he heard the sound of cars and the Police party arrived. He played no further part in the proceedings except to say that Stewart was one of the people brought out of the house by the police and he noticed Stewart was injured. The significance inter alia of his evidence is that it shows Stewart was in the house long before the Police arrived.
15. Police evidence through the numerous witnesses called was that as a result of Molinis appeal for help. And because Pitoitua was well known to the Police from previous encounters, they convened a large raiding party to enter and search his premises. The Police undertook a lawful search of the property (there was no challenge as to the legality of this) and they discovered large quantities of marijuana and ice on the premises all in Pitoituas bedroom. These narcotics were documented and seised and are the subject of the joint charges against the defendants.
16. Included amongst the items seised were also a number of unlawful weapons and ammunitions which were confiscated. And which are the subject of the four (4) munitions charges brought under the Arms Ordinance 1960.
17. I have heard the testimony of the various Police Officers. While there are minor inconsistencies, this is to be expected and only adds to their credibility. I have no reason to doubt the accuracy or veracity of their evidence. The search was properly executed by officers who properly identified themselves to the occupants more than once. And I am satisfied no unreasonable force was used inside or outside the house in the apprehension of the defendants or in the seizing of their properties.
18. There was a suggestion by the third defendant Stewart in his evidence to the court that he was the subject of some unnecessary force by an unidentified third party. Possibly a Policeman of the raiding party or one of his co-defendants. Who pushed him out of a window thus cracking it and causing him injuries. I have little difficulty rejecting this evidence as it has no reasonable basis or foundation and there would be no reason for anyone to forcefully push the third defendant - who is of formidable build and stature - hard enough so as to propel him through louvre glass windows. His evidence also contained parts not put to the prosecution witnesses as required by section 76 of the Evidence Act 2015 and no satisfactory explanation was forthcoming as to why not. Accordingly relevant portions of his evidence e.g. that it was Pitoitua who pushed him out of the window must be ignored. There is also no evidence that Stewart complained to the Police or his co-defendants or anyone else at the time about being forcefully pushed through a glass window.
19. Two other defendants also gave evidence. AJ Roache who said he was there solely for the purpose of Pitoituas renovations and was innocently caught up in the Police raid. AJ denied all knowledge or connection to the narcotics found on the premises.
20. Likewise did the fourth defendant Sanele Schuster in his testimony. He said he went to Pitoituas to look for an “atigi-pa’u” for his car. Why he would go to Pitoituas house looking for a “atigi-pa’u” was not satisfactorily addressed. He also denied being a longtime acquaintance of Pitoitua which makes his explanation for his presence on the property even less credible.
21. Having carefully listened and observed the witnesses, I have no reason for doubting the truthfulness of the first defendants evidence. I bear in mind Pitoitua is an accomplice in the offending and as such, caution and care must be exercised in evaluating his testimony. (Addendum - If authority for this be required see Police v Silipa [2008] WSSC 81 and the Court of Appeal in Ufiufi v Attorney General [2009] WSCA 13). I have however found his evidence to be largely consistent with that of the Police raiding party many of whom were called as witnesses. It is also consistent with the evidence of the taxi driver Makisi. This consistency was not shaken in cross-examination by the various counsels.
22. It was put to Pitoitua in cross-examination that the reason for his implicating his co-defendants was to obtain a further deduction in his pending sentencing for this matter. A suggestion he emphatically denied. For example when asked by Mr Soonalole about the 25% deduction for his guilty plea, his answer as recorded on page 54 of the transcript was:

“Ia, pe a ioeina le moliaga, ae leai se pasene e aveesea pe a ou molimau.”

23. His other answers in cross-examination make it clear that his understanding is he gets a 25% reduction for his guilty plea. But nothing extra for testifying against the co-defendants.
24. There is accordingly no reason apparent from the evidence why he would falsely implicate his co-defendants. The Court accepts as truthful his testimony that all defendants except for his wife Esther Tani participated in the marijuana and ice smoking party in his bedroom on the day in question. And in in doing so, all defendants except Esther can be found guilty of being in possession of the narcotics discovered in the bedroom by the raiding Police officers. There being no suggestion narcotics were also found outside the bedroom or in any other parts of the house.
25. I am therefore satisfied beyond reasonable doubt of the guilt of second, third, fourth and sixth defendants on the five (5) joint narcotics charges. That is the defendants AJ Roache, Stewart Tuitama, Sanele Schuster and Ana Fuimaono. But in the absence of any evidence linking you to the unlawful weapons found in the bedroom, I acquit you on the four (4) arms and munitions charges. Those weapons and ammunitions were categorically accepted by Pitoitua in his evidence as belonging to him. At page 30 of the transcript he says:

“Fa’apea ai ma fana ia. O fana e patino ia a’u a’o fana ia e ta’ape uma e leaga ma ututau ia o mea uma e patino ia a’u.”

26. In respect of the fifth defendant Esther there being no evidence she participated in the ice and marijuana party, and no further evidence linking her directly to her husbands drugs and weapons, I am left in reasonable doubt as to whether she can in law be said to be in possession of the charged materials. The law of course requires the benefit of any reasonable doubt to be given to the defendant.
27. The other evidence against her was a cautioned statement produced by the prosecution taken at 1:30 am on the night of the Police raid. I had during the trial rejected this evidence and my reasons for doing so are outlined on page 168 of the trial transcript, namely that she was an 8 months pregnant woman at that time who had earlier that day been assaulted by her husband. Resulting in injuries to her head which interviewing Police acknowledged were clearly visible. She had also fainted at the Police Station when being interviewed and her condition was considered serious enough for the officers to take her to the hospital for examination. But upon her return to the Police Station, the officers nevertheless proceeded to obtain from her a written Cautioned Statement which only in one place implicates her. There was no evidence she was fed or allowed to rest and recover from the obviously traumatic events of the day which included a full-on Police search and seizure operation by twenty (20) officers some of whom were armed.
28. In these circumstances I was not satisfied the cautioned statement could be safely relied upon and the reasonable possibility that it was obtained in oppressive circumstances contrary to section 21 of the Evidence Act could not be excluded.
29. Accordingly I ruled the statement inadmissible and indicated I would raise the courts concerns with the Commissioner of Police and recommend the need perhaps for the Police to formulate special Guidelines to cover the interviewing of heavily pregnant suspects or women who have been the subject of domestic violence prior to interview. They should not be put into the same category as “normal” suspects and as a general rule may require special consideration and treatment.
30. End result is that there is no evidence against Esther, charges against her are dismissed she may stand down.
31. The final issue the court needs to address are the four additional charges against the third defendant Stewart. Police evidence via Pitoitua was this defendant arrived at his house with a bag described as one for carrying laptops. From page 26 of Pitoituas evidence I quote:

“Tali: Na taunuu atu Stewart ou te le’o mailoa le mafuaaga na alu atu ai Stewart ona o Stewart ou te ta’utino atu o se fesootaiga a Ana ma Stewart na alai ona taunuu atu Stewart i lo’u fale. Ou te molimau atu ona na alu atu Stewart ma lana ato.

Fesili: O a foliga o le ato lea e te taua sa alu atu ma Stewart?

Tali: O le ato asoa, tai pei o se ato laptop.”

32. Inside the bag was ice which according to Pitoitua was swapped with Ana for some marijuana.
33. The Police evidence of Corporal Taylor Mulitalo and Constable Tyrone Mamaia was that when the Police Officers entered the house through the front door, there was a lot of scuffling (“pa’o”) and sounds of flight (“kamomoe solo kagaka”) coming from inside the house so they went around the house. They saw the third defendant jump through a window on the side of the house landing in some teuila. And that he was in possession of a bag. They said it took the two Police Officers assisted by Inspector Toddy Iosefa to restrain the well-built and struggling defendant. And when they searched the bag they discovered the materials which are the subject of the additional charges.
34. I have earlier disbelieved this defendants evidence. I do not accept Stewarts denials of being in possession of a bag. I am accordingly satisfied beyond reasonable doubt the Police have established the four additional charges as against him.
35. O le tulaga lea e iai le tou mataupu o le a toe valaau i le aso 16 o Mati i le 12:30 i le aoauli. Mo oe Sanele ma Ana e tatau ona lua o’o i se taimi vave i le Ofisa Fa'anofo Va'ava'aia e tapena mai ni lua lipoti mai le ofisa lena. Masalo e fa’asino atu e alii ma le tamaitai loia le mea o loo iai le ofisa. O le a fa’aauau pea le tatalaga o oulua i tua ona o lea e le’o iai ni lua solitulafono muamua. A’o le aso 16 o Mati i le 12:30 e lau ai le fa’aiuga mo outou uma.
    

JUSTICE NELSON