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Police v Pesamino [2024] WSSC 128 (18 December 2024)

IN THE SUPREME COURT OF SAMOA
Police v Pesamino [2024] WSSC 128 (18 December 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

LETASI PETER ANDREW PESAMINO male of Fatausi Safotulafai

Accused

Counsel: J Leung Wai for Prosecution

L M Sio for Accused

Hearing: 10^th December 2024
Closing: 12^th December 2019
Submissions:
Ruling: 18^th December 2024

RULING (VOIR DIRE)

The Charge

1. Letasi Peter Pesamino (“Peter”) is charged with the possession of 16.8 grams of methamphetamine and of a utensil, namely, one (1) portable electronic scale. Peter has pleaded not guilty to the charges. On the morning of the trial, Peter’s counsel informed the court that the legality of the warrantless search is challenged. It was agreed to first deal with the challenge as a pre-trial matter.

The Warrantless Search

2. Prosecution called three witnesses. These were Sergeant Etuale Lelei, Officer-In-Charge of the Fagamalo police post and Sergeants Tialii Ulu and Misi Ioane from the Tuasivi police station.
3. According to Sergeant Lelei, in the early morning of Saturday 8th June 2024, he received a phone call at the Fagamalo police post from a male. Although Sergeant Lelei said in his evidence that he received the call between 4.00am and 5.00am,^[1] his evidence was uncertain and unreliable and I accept that the call was likely to have been received earlier that morning. Sergeant Lelei’s evidence as to the conversation was that:^[2]
   • “...Na iai se tagata sa valaau atu ua le maua po’o ai ma logo atu se mataupu e uiga i fualaau ma vailaau faasaina o lo’o maua i le fale o le o lo’o molia nei. O a’u la lenei sa tau atu iai le valaau.
   • Pros: Can you tell us who was mentioned in that report, when someone called to your office?
   • Wit Na faailoa atu e Letasi Peter ile afioaga o Fatausi, o lo’o iai masalomiaga o lo’o umiaina ni fualaau ma vailaau faasaina i lona fale”
4. The caller did not leave his number nor did the caller’s phone number appear on the phone line. Sergeant Lelei then informed Assistant Commissioner Papali’i Eneliko responsible for Savaii who instructed them to “faatino le galuega e masani ai.”^[3] In his evidence, Sergeant Lelei also confirmed that the information received was not verified:^[4]
   • “DC E sa’o pe a faapea atu e leai se taimi tou te agai iai e vaavaai pe ono moni le information lea ua avatu?
   • Wit Ona e leai se taimi. O le valaaau ia sa valaau atu ma logo atu fualaau ma vailaau faasaina, pau le tiute e tatau ona fai o le faatino loa o le galuega.”
5. Sergeant Lelei, Sergeant Ulu and police officers then went to Peter’s property that morning. Sergeant Lelei could not recall the time the search was conducted.^[5] In his evidence, Sergeant Lelei described what occurred:^[6]
   • “Wit: O matou ma isi alii leoleo, o a’u, ma le susuga ile alii satini ia Tialii Ulu, o ma’ua ia sa muamua logo ia Letasi Peter i le mafuaaga o le oo atu o leoleo i lona fanua ma lona fale ma faatino le galuega, faailoa iai vaega o le tulafono e mafai ona matou faaaogaina e saili ai lona fanua ma lona fale ona o masalomiaga i fualaau ma vailaau faasaina
   • Pros: When you arrived on the scene, you spoke with Letasi, did he ask you anything?
   • Wit: Na muamua lava ou te manatua sa tu’itu’i le fale, faalua faatolu faafa faato’a tatala mai, ma matou faailoa iai le mafuaaga o le faaoo atu, sa faapea mai pe sa iai se tusi faataga a leoleo e saili ai, sa ou faailoa iai e le’o iai se tusi faataga, peitai, e iai le vaega o le tulafono ua matou faaaogaina e saili ai lona fale e aunoa ma se tusi faataga pei ona fesiligia.”
6. Peter then permitted police to carry out their search of his home. Methamphetamine was then allegedly discovered.

The Law

Section 14A Narcotics Act 1967

7. Police rely on section 14A of the Narcotics Act 1967 for the conduct of the warrantless search. Section 14A provides:
   • “14A. Search without a warrant – (1) Where:
   • (a) under the circumstances that an immediate search is to be carried out; and
   • (b) there is no time to apply for a search warrant as provided under section 14, – a constable, if he or she has reasonable ground to believe that there is in or on a ...premises or place a narcotic or controlled precursor for which an offence has been committed, the constable, with any assistants he or she may require, may enter and search the building...premises, or place and a person found therein or thereon as if authorised to do so by a search warrant issued under section 83 of the Criminal Procedure Act 1972 and by section 14(1) of this Act.
   • (2) Where a constable has reasonable ground for believing that a person is in possession of a narcotic or controlled precursor and that an offence has been or is suspected of having been committed in respect of that narcotic or controlled precursor, he or she may search and detain that person for the purpose of search and may take possession of a narcotic or controlled precursor found.
   • (3) Nothing in subsection (2) limits subsection (1) or authorises a member of the Police to enter and search a ... place otherwise than in accordance with that subsection.
   • (4) A constable exercising a power of search or of entry and search conferred by subsections (1) and (2) shall identify himself or herself to a person searched, and also to a person in or on the ... premises, or place who questions his or her right to enter and search the same, and shall also tell that person that the search is being made pursuant to the authority of subsections (1) and (2), and he or she shall also, if not in uniform and if so required, produce evidence that he or she is a constable.
   • (5) A constable exercising the power of search or of entry and search under subsections (1) and (2) shall within 72 hours after the search submit to the Commissioner of the Samoa Police Service a report in writing stating the reason for and result of the search.” (emphasis added)
8. Peter challenges the legality of the search and therefore the admissibility of the evidence of methamphetamine as improperly obtained. Under the circumstances: (a) an immediate search was not warranted; (b) there was ample time to seek a warrant; and (c) there were no reasonable grounds to believe that there was in his property a narcotic for which an offence has been committed.
9. In order for police to lawfully conduct a warrantless search pursuant to section 14A, a number of criteria must, in my respectful view, be met:
   • (i) the circumstances warrant the carrying out of an immediate search;
   • (ii) there is no time to apply for a search warrant pursuant to section 14; and
   • (iii) the constable has reasonable ground to believe that there is in or on a ...premises or place a narcotic or controlled precursor for which an offence has been committed.
10. Where police conduct a warrantless search, they then must also:
    • (iv) identify him or herself to the person in or on the premises who questions his or her right to enter and search the same;
    • (v) shall also tell that person that the search is made pursuant to the authority of subsections 14A (1) and 14A(2); and
    • (vi) the Constable exercising the power of entry and search, shall within 72 hours after the search submit to the Commissioner of Police a report in writing stating the reason for the search and the result.

The Evidence Act 2015

11. Section 20 of the Evidence Act 2015 deals with challenges to the admissibility of evidence allegedly obtained improperly. Section 20 relevantly provides:
    • “20. Improperly obtained evidence-(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if:
      • (a) the defendant ... against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
      • ...
      • (2) The Judge must:
      • (a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
      • (b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and also takes proper account of the need for an effective and credible system of justice.
      • ...”
12. For the purposes of determining whether or not the exclusion of the evidence is proportionate to the impropriety, I may take into account those matters set out in section 20(3) of the Evidence Act 2015. Section 20(5) then goes on to stipulate that:
    • “(5) For the purposes of this section, evidence is improperly obtained if it is obtained: (a) in consequence of a breach of the rights to consult a lawyer or the right to remain silent and not to make a statement; or (b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or (c) unfairly.”
13. Section 20(5)(a) of the Evidence Act 2015 is materially different to the equivalent New Zealand provision found in section 30(5)(a) of the New Zealand Evidence Act 2006. The equivalent Samoan provision does not include in section 20(5)(a) “in consequence of a breach of any enactment or rule of law...” I am however satisfied that evidence obtained in “breach of any enactment or rule of law” will constitute evidence obtained unfairly for the purposes of section 20(5)(c) of the Evidence Act 2015.^[7]

Discussion:

14. I first deal with the prosecution assertion that the search of Peter’s home was consensual. I reject this assertion and the evidence of Sergeant Lelei to this effect. When Sergeant Lelei arrived with Sergeant Ulu at Peter’s home, they were expressly asked if they had a search warrant. Rather than asking Peter for his consent to search his home (if the search was indeed consensual), they instead informed Peter that police had the power under section 14A to conduct a warrantless search. That Peter permitted the search based on police assertion to him of their power to conduct the search under section 14A of the Narcotics Act 1967 is not consent, but compliance. Sergeant Lelei’s evidence that if Peter had refused consent, a search would not have been carried out not only came across as contrived but is also inconsistent with his own earlier evidence that:^[8]
    • “sa ou faailoa iai e le’o iai se tusi faataga, peitai, e iai le vaega o le tulafono ua matou faaaogaina e saili ai lona fale e aunoa ma se tusi faataga pei ona fesiligia.” (emphasis added)
15. I turn to the statutory schema for search warrants. Sections 14 of the Narcotics Act 1967 sets out the framework for issuing of search warrants. The schema requires written application for a search warrant containing information on oath that there is reasonable ground for suspecting that either a narcotic or controlled substance is in the possession or control of a person in a specified location and that an offence has been committed against the Act or regulations.^[9] Section 14A then permits warrantless searches to be conducted by police in specified circumstances. The statutory schema is that except in exceptional circumstances, a search should be authorized by warrant - referred to in New Zealand as the warrant preference rule. This rule means that “if it is possible to obtain a warrant without prejudicing the purpose of a search, a warrant is to be preferred even when a warrantless power is available.” ^[10]
16. Although police purportedly conducted their search pursuant to section 14A, there is no evidence that police turned their minds to the requirements of section 14A and satisfied themselves of those requirements before conducting the search of Peter’s home. As Sergeant Lelei confirmed:^[11]
    • “DC So, na’o le toe faailoa atu lava i lau molimau, na maua e oe o le valaau lea mai le tagata ete leiloa, e fesootai ia Papalii, fai mai loa Papalii e fai le osofaiga lea?
    • Wit Sa’o lelei, sa faatonuina loa e faatino le galuega e masani ia. Ona ma talanoa lea ma Tialii o ma’ua satini sa tiute i Tuasivi ma a’u i Fagamalo.”

Did the Circumstances Warrant an Immediate Search

17. I am not satisfied that the circumstances warranted an immediate search. In Sergeant Lelei’s brief recounting of the phone call, all he was told was that there is “fualaau ma vailaau faasaina o lo’o maua i le fale o le o lo’o molia nei.” There is no evidence that the unidentified caller said anything about there being a risk of the narcotics being disseminated, used or otherwise disposed of to require an immediate search. Instead, on receipt of the phone call, police appear to have immediately formed the view without proper foundation that:^[12]
    • “Wit A faapea e lava pau a le popolega lau Afioga ona o le weekend, o le Aso Toonai, ma le isi tulaga e fia faamanino i mataupu nei i fualaau ma laau faasaina, o le vave ia ona aluese pe a silafia e le o lo o masalomia, o le mafuaaga lena e naunau ai e faatino ise taimi vave le galuega, o le popolega ina ne’i le faamanuiaina le tiute pei o mataupu e logoina atu e le atunuu, pei o le popolega lena, fa i o le weekend o le Aso Toonai, ae fua agai fualaau faasaina le vave ona aluese mai se tagata.”
18. The concern expressed by Sergeant Leilei is of a general nature and there was no evidence that there was a risk of Peter being tipped off. With the receipt of an anonymous tip-off with no information from the caller that the alleged narcotics were at risk of being disseminated, used or otherwise disposed of, I am not satisfied that the circumstances warranted an immediate search.

There is no time to apply for a search warrant pursuant to section 14

19. I take judicial notice of the fact that there is no resident Supreme Court or District Court judge in Savaii and that the District Court sits in Savaii Mondays to Thursdays, every second week.
20. Although I accept that there is no resident judge in Savaii, there is no evidence to suggest that police made any enquiries as to the presence of a judge in Savaii at the time or how long it would take to obtain a search warrant from a judge in Apia or what the practical impediments there were to police to obtaining a search warrant that weekend. In those circumstances and in the absence of being satisfied of circumstances warranting an immediate search existed, I am also not satisfied that there was no time to apply for a search warrant.

Was there reasonable ground to believe presence of narcotics

21. I now turn to consider whether police had reasonable grounds to believe that there was present on Peter’s property “fualaau ma vailaau faasaina”. The requirement for “reasonable grounds to believe” is higher than that of “reasonable grounds to suspect”. As succinctly encapsulated by Edwards J, “For there to be reasonable grounds for a belief, there must be an objective and credible basis for that belief.”^[13]
22. In my respectful view, there could be no such objective and credible basis for a belief that Peter was in possession of “fualaau ma vailaau faasaina”. Police had received an anonymous and unnamed telephone tip-off that Peter was in possession of “fualaau ma vailaau faasaina”. The caller was not a known police informant and there is no evidence that the caller was asked about how he knew Peter was in possession of such substances or any other information that would lend credibility to the claim. No steps were then taken by police to verify the anonymous tip-off. Instead, police relied on ‘talk’ about Peter to corroborate the information, described by Sergeant Ulu as follows:^[14]
    • “HH: Lea foi sa e ta’ua i lau molimau ua leva na masalomia ia Letasi Peter, o le a le uiga o lau molimau lena ua leva ona masalomia?
    • Wit Masalo e le tele se vavamamao i le mea o lo o iai le matou ofisa ma le alalafaga o Letasi o le tele o tala fe’aveai lena taimi ae sa faalogologo ise information faapea matou te agai ile fale o Letasi.”
23. Similarly, Sergeant Iosefa’s evidence was that:^[15]
    • “Pros: Was the defendant ever a person of interest for the police?
    • Wit O tala masani lava i susuga i alii malu o le malo ma nisi o latou sa faatinoina le galuega, o le tama ia Letasi Peter o lo o masalomia oi fualaau faasaina pei ona leva ona latou iloa ma faapena ona faalogo iai.”
24. Objectively viewed, there could be no reasonable and credible basis for police to believe at the time that there was “fualaau ma vailaau faasaina” on Peter’s property. The informant was unknown and unnamed. All police had heard were “tala fe’aveai” and “tala masani” to support the tip-off. The information available to police prior to the search fell well short in my respectful view of constituting reasonable grounds for believing that there were “fualaau ma vailaau faasaina” on Letasi’s property. I am therefore also satisfied the search was unreasonable.
25. Although methamphetamine was found by police, this does not obviate the finding that at the time, there was no reasonable and credible basis for police to believe there was “fualaau ma vailaau faasaina” on Peter’s property. To enter and search a person’s home, police must have good reason to do so. As Blanchard J stated in Brooker v Police [2007] NZSC 30; [2007] 3 NZLR 91 at [60] concerning the importance of a person’s right to privacy in their home:
    • “...This is because the common law has long recognised that men and women are entitled to feel secure in their homes, to enjoy residential tranquility – an element of the right to privacy. They are justifiably entitled not to be subjected there to undue disturbance, anxiety or coercion. The state’s interest in protecting the wellbeing, tranquility, and privacy of the home has been described by the United States Supreme Court as “certainly of the highest order in a free and society”...”
26. In Police v Feesago [2009] WSSC 115 (9 November 2009), Vaai J made the similar point that a person’s home is their castle and police intrusion into a person’s home could only be sanctioned by warrant executed by a judicial officer. As he also explained, section 14A was only later introduced to balance the concerns for effective law enforcement with people’s right to privacy within their own home and from unreasonable search and seizure.
27. Police do not have an unfettered power to descend on peoples’ homes on tenuous information and conduct warrantless searches. In this case, the police attitude to warrantless searches was concerning. In his evidence, Sergeant Ulu stated:^[16]
    • “DC ae le su’esu’e muamua pe moni ma faamaoni
    • Wit a lea na o atu ma maua ai
    • DC ae lei oo ile search ae le’i su’esu’e muamua e outou pe faamaonia pe leai a ea?
    • Wit O le mea foi gale so o se valaau e sau matou te agai iai, pe sese pe sa’o matou te agai ai pea.
    • DC tou te agai ai pea?
    • Wit matou te agai iai
    • ...”
28. This evidence demonstrates a failure by police to appreciate the sanctity of a person’s home and their right to privacy. It shows a cavalier attitude towards people’s entitlement to not be subjected to undue disturbance, anxiety or coercion in their homes except on a proper legal basis. It risks warrantless searches by police on any person based simply on an anonymous unknown tip-off where it may be inconvenient for police to obtain a search warrant. That treads dangerous ground and opens warrantless searches to abuse by police.

Police identification to Peter and Report to Commissioner

29. When police arrived to conduct the warrantless search, Sergeant Lelei confirms he did not identify himself by name to Peter when Peter questioned his right to search his property. This is contrary to the express requirements of section 14A(4). I am also satisfied on the evidence that no report was furnished to the Commissioner of Police by Sergeant Lelei as required by section 14A(5), let alone within 72 hours. The attempt by Sergeant Lelei to suggest that his report to the “ta’ita’i” may have been his report to the Commissioner was disingenuous.
30. The warrantless search was an unlawful search. I accept that for the purposes of the Evidence Act 2015, the methamphetamine allegedly discovered on the balance of probabilities was therefore improperly obtained.

Whether to admit improperly obtained evidence of methamphetamine

31. Having determined that the methamphetamine allegedly found at Peter’s home was improperly obtained, I turn to consider the second limb of section 20(2) and “whether or not the exclusion of the evidence is proportionate to the impropriety”. This requires “a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.” The general rule is that of exclusion “once impropriety is found if the judge determines such exclusion is “proportionate to the impropriety”...”^[17] The New Zealand Supreme Court pointed out that in New Zealand, an effective and credible justice system “is one that gives substantive effect to human rights and the rule of law”^[18] and that:^[19]
    • “[w]hat s30(2)(b) provides is that whether exclusion is “proportionate to the impropriety” is measured against the end of “an effective and credible system of justice”. “[A]appropriate weight” must be given to the impropriety but the standard for exclusion is the end specified. This expression implements the major reform by making it clear there is no longer a presumptive rule of exclusion.”
32. Turning to the considerations in section 20(3) of the Evidence Act 2015, I accept that the possession of methamphetamine and utensil charges are very serious. In terms of the evidence, police gave only brief and general evidence that methamphetamine was allegedly discovered from the search, but no evidence as to the circumstances concerning discovery nor the quality of the methamphetamine evidence. However, I accept that the prosecution case against Peter for possession of methamphetamine will likely fail if this evidence excluded. No evidence of the discovery of a utensil was given by police.
33. In terms of the police impropriety in conducting the warrantless search, I accept that it was not deliberate nor done in bad faith. The conduct of the warrantless search was however reckless and arose from circumstances that did not involve any apprehended or actual danger to police or others or necessitate the urgency with which they carried out the search. The alternative option of seeking to obtain a warrant was open to police. They did not explore this option at all and in my respectful conclusion, there are no alternative remedies but for the exclusion of the evidence to adequately provide redress to the accused. These all weigh in favour of exclusion.
34. The privacy interests breached by police in this case involved the unlawful search of Peter’s home. A person’s right to privacy and to feel secure in their homes and not be subjected to unlawful search by police is a significant right. This also weighs in favour of exclusion. As the New Zealand Supreme Court in Hamed v R recognized, the “principle that breaches of rights should be remedied is fundamental to any effective and credible system of justice, and is a principal plank of ours.”^[20] The admission of tainted evidence, as in this case, risks condoning and encouraging unlawful warrantless searches by police and undermining the credibility of Samoa’s justice system.
35. In the end result, I am satisfied that the exclusion of the evidence is proportionate to the impropriety by police.
36. Before I conclude, methamphetamine has now long been characterised as a scourge in the community, and one that is growing. To counter that scourge, police have a critical role to play and one they have carried out over many years. It is however important that in conducting searches and performing their duties, police have proper regard to the law and the processes they too must follow. As discussed earlier, a number of basic procedural matters were not complied with by the police officers involved in this case when performing the warrantless search. These show a basic lack of understanding of section 14A and its requirements. These should be addressed by police through training so that future prosecutions are not compromised by basic errors.

Result

37. I accordingly find that that the methamphetamine and any other evidence obtained by police from the search of Peter’s home on the 8th June 2024 is inadmissible and therefore excluded.

JUSTICE CLARKE

^[1] NOE, 9^th December 2024 at p.8 [NB: NOE wrongly dated 9^th December 2024. Voir dire conducted 10^th December 2024].
^[2] NOE, 9^th December 2024 at p.2.
^[3] NOE, 9^th December 2024 at p. 10.
^[4] NOE, 9^th December 2024 at p. 10.
^[5] NOE, 9^th December 2024 at p. 8.
^[6] NOE, 9^th December 2024 at p.3.
^[7] See also: Mathew Downs (ed) Cross on Evidence (online ed, LexisNexis) at EVA30.3 Definition of improperly obtained evidence.
^[8] NOE, 9^th December 2024 at p.3.
^[9] Section 14(1)(a), Narcotics Act 1967.
^[10] See in New Zealand: Razouk v Police [2022] NZHC 28 at [34].
^[11] NOE, at p.10.
^[12] Sergeant Lelei, NOE, 9^th December 2024 at p. 10.
^[13] Razouk v Police [2022] NZHC 28 at para [56].
^[14] NOE, 9^th December 2024 at p. 23.
^[15] NOE, 9^th December 2024 at p. 26.
^[16] NOE, 9^th December 2024 at pp. 20 - 21.
^[17] Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at paragraph [57].
^[18] Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at paragraph [62].
^[19] Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at paragraph [58].
^[20] Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at paragraph [70].