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Police v Fialelei [2024] WSSC 96 (11 October 2024)

IN THE SUPREME COURT OF SAMOA
Police v Fialelei [2024] WSSC 96 (11 October 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TUPA’I FIALELEI, male of Faatoia and Lotofaga, Aleipata

Defendant

Counsel: F Lagaaia for Prosecution

I Sapolu for Defendant

Hearing: 14-16 August 2024

Decision: 11 October 2024

DECISION OF TUATAGALOA J

The charges

1. The defendant Tupa’i Fialelei is charged with the following:
   • (a) On the 7^th November 2022 at Lotopa, the defendant knowingly has in his possession narcotics namely methamphetamine weighing at 1.17g pursuant to sections 7(1)(a) & 18(a) of the Narcotics Act 1967 (“the Act”); and
   • (b) Possession of utensils namely two (2) clear glass pipes and one (1) white plastic straw for the purpose pf committing an offence pursuant to section 13(b) of the Act.

Background

2. On 7 November 2022, the Police Post at Faleata received a call from the Mareke Lodge at Lotopa of suspicious activities and are concerned that drugs may be sold from the Lodge. The Police arrived and secured the compound, so no vehicle can leave or enter. Upon arrival, the Police received further information on the suspected rooms and were also given the room keys. The Police divided themselves into two teams and, based on the information received on reasonable suspicion executed a search of rooms 24 and 18 pursuant to section 14A of the Narcotics Act 1967. Guest room number 18 was the room occupied by the defendant, Tupa’i Fialelei.

The Evidence

3. The hearing proceeded as the defendant denied having possession of the narcotics found by the Police while conducting a search of Room 18, which he occupied at the Mareke Lodge.
4. Prosecution called 13 witnesses as follows:
   • Asenati Peteru works for Mareke Lodge in the housekeeping. Her evidence is that housekeeping will only go in the rooms when the guests check out or when there is a request by the guests for their room to be cleaned. She said that she was working on Saturday, 5 November 2022 when Tupa’i and his wife checked into Room 18. This morning the occupant of Room 22 was supposed to check out. She knocked on the door and said to the occupant that he was supposed to check out and that they needed to clean the room, but the occupant refused to leave, swore at her and slammed the door in her face. Asenati said that she with some of the staff had noticed the comings and goings of a lot of cars to Rooms 22 and 18 over the weekend. She and some of the staff raised with the Manager and Supervisor their suspicion of illegal drug activities going on with some of these rooms. On Monday, 7 November a staff meeting was called that resulted in the Police being called in.
   • Constable Siusei’a Tauauve’a lead the search of Room 18 and said he knocked on the door and was opened from inside by Tupa’i. He was asked if he was the occupant of Room 18 and Tupa’i confirmed. Constable Siusei’a said that no one else was in Room 18 except Tupa’i. Constable Siusei’a said present was his team, Constable Valaauina Tuamu, Constable Siolo Vandermade and Constable Teresa Kanela. He said that Room 18 only has one entry and exit through the front door; which door opens into like a sitting room where there was a bunk bed and chair.^[1] They searched first the sitting room and found nothing; they then proceeded to the small bedroom located next to the sitting room.^[2] He was standing underneath the air condition in the bedroom when Constable Valaauina found two glass pipes where the window curtain is.^[3] Constable Siuseia said that he was also present when the straw was found on the table in the bedroom, but he could not remember who found it. Constable Siuseia could identify Tupa’i because that was not the first time he had seen him in matters of this nature. He said that Tupa’i was present while Room 18 was searched.
   • Sergeant Valaauina basically confirmed Sergeant Siuseia’s evidence. He confirmed that he was the one who found the two glass pipes sticking out from the end of the curtain rod in the bedroom that they searched.^[4] He said the glass pipes were shown to Tupa’i but (he) did not say anything. He said that he noticed that Tupa’i looked sad.^[5] The glass pipes were given to Constable Teresa Kanela, the appointed exhibits officer for Room 18. Sergeant Valaauina said that the K9 Unit carried out their search of the bedroom while they continued their search to the sitting room and to the vehicles parked outside. He and Tupa’i were on their way to the carpark for the search of the vehicles when there was a call that more has been found. He said that it was Sergeant Thor Tafuna’i who showed the mini plastic bag to Tupa’i.
   • Constable Siolo Vandermade said they received call from Mareke Lodge and given further information regarding suspicious of the involvement of Rooms 22, 24 and 18 with drugs. He confirmed that Siuseia knocked on Room 18 and was opened by Tupa’I who was informed by Constable Siuseia that they have received information that drugs or narcotics are being sold from the Lodge. They went inside a small bedroom and Constable Valaauina found two glass pipes. Present were Sergeant Thor Tafuna’I, Constable Siuseia and Constable Teresa Kanela. Constable Siolo said he retrieved the remote control to the air-condition from the top of the small fridge just outside the bedroom to turn the air conditioner on because the bedroom was getting very hot as it was not only small but there were four (4) police officers inside carrying out the search. He went to put the remote control in its stand^[6] but found that the remote control was going in or settling in properly as if something was stopping it - ‘e teenia’. He looked inside to see what is causing that and saw the mini plastic bag at the bottom of the stand, he pulled it up and saw that it had white substance.^[7] He then called out to Constable Siuseia and Sergeant Thor Tafunai of what he had found. He then went to put the remote control on the table in the corner of the bedroom and found a straw tube on the table.^[8] Constable Siolo was asked by Counsel for the defendant where Tupa’i was at the time the mini plastic bag was found and he said he was still in Room 18 but not the bedroom where the mini plastic bag was found for, he met Constable Valaauina and Tupa’i inside Room 18 when he walked out from the bedroom. He said that Constable Peter Fuimaono was not present when the mini plastic bag was found but he remembered that when he called out, he heard Constable Valaauina called out to Constable Peter Fuimaono. His evidence is that Tupa’i was present throughout when they searched Room 18. Constable Siolo was also present when Constable Peter Fuimaono took the photos of the mini plastic bag.
   • Constable Theresa Kanela was the exhibits officer for the search of Room 18. She was tasked to record anything found; she cannot leave Room 18 until after it was searched. She said that when they arrived at Mareke Lodge she came across Tupai’s partner named Maria standing outside next to the Mareke Hall^[9] waiting for her father who was on his way to get his weld from Tupa’i. She said Police secured the Mareke compound so no one could leave or enter. Their team allocated to search Room 18 was led by Constable Siuseia, herself, Constable Siolo, Constable Valaauina and Constable Neville Ah Sue. They walked up to Room 18 and Constable Valaauina knocked on the door and Tupa’i opened it. Also present in the search of Room 18 was the K9 Unit. She confirmed that she was present when Constable Valaauina found the two glass pipes and Constable Siolo found the mini plastic with ice inside the remote control stand for the air condition and the straw tube was found on the table inside the bedroom. She said the utensils, mini plastic bag with ‘ice’ and white plastic straw were handed over to her to record after it was shown to the defendant. She said the vehicles were searched after Room 18 had been searched.
   • Sergeant Vaivali Laulu was with the team searching Room 24. After the search of Room 24 he went over to Room 18. He was standing just inside Room 18 when Constable Siolo called out from the bedroom when he found the mini plastic bag with ice and the plastic straw. He then called out to Constable Peter Fuimaono who was outside to come take the photos. At that time, Tupa’i was on his way down to the vehicles when he was brought back up. Tupa’i was shown the stuff found and he responded, “e nate leiloa poo ai e ona” (he does not know who owns it). The mini plastic bag and plastic straw tube were handed to Constable Theresa who recorded it down.
   • The evidence of Constable Neville Ah Sue is that he was with the team searching Room 24. The search for Room 18 was still in progress when they finished with Room 24; he went and assisted in securing the compound. He said the vehicles were parked outside Room 18 and he could see the vehicles that were searched from where he was at the front gate of Mareke. He said the vehicles were searched after the search of Room 18 and that nothing was found.
   • Constable Pasefika Tavae was tasked with securing the Mareke compound when the Police arrived to execute the search. He was stationed at the Mareke gate to make sure that no car left or entered the compound. He was 10-15meters away from the car park where the two vehicles searched were parked. He said that he could only remember Constable Siuseia when the vehicles were searched and cannot remember seeing Constable Peter at the vehicles. He remembered seeing someone other than the police officers present at the search of the vehicles but said that this other person never left the vehicles to go up Room 18 when asked if this other person went up to Room 18.
   • Constable Henry Enosa was the driver of Police vehicle number ‘POL35’. He parked his vehicle outside Room 24 but said he could see the two vehicles outside Room 18 being searched. He said he saw Constables Siolo, Siuseia and Valaauina with Tupa’i came down to the car park from Room 18. He saw Tupa’i standing next to the vehicles while it was searched. He said he cannot remember Tupa’i having ever left the vehicles while they were searched. Constable Piipii Alapati said he came down to the car park after the search for Room 24 and Tupa’i’s wife Maria was standing next to the vehicles. He saw Tupa’i at the vehicles when they were searched, which search he said was only carried out after the search of Room 18. He cannot remember seeing Constable Peter at the vehicles when they were searched.
   • Seargeant Thor Tafuna’i and Constable Peter Fuimaono with the Police Forensic division were allocated to take photos of crime scene and any illegal substances to be found. Sergeant Tafuna’i was allocated to Room 24 and Constable Fuimaono to Room 18. Sergeant Tafuna’i’s evidence is that after the search of Room 24 he went to the car park where the vehicles were parked when Constable Siolo called to say that he had found ‘ice’, so he went up to Room 18 with Constable Peter Fuimaono. He said that Tupa’i was at the vehicles when Siolo called, and he (Tupa’i) was taken up to Room 18. Sergeant Tafuna’i said he pointed out or showed the mini plastic bag with ‘ice’ in the remote-control stand to Tupa’i and asked him if he knew what they are and Tupa’i responded ‘e na te leiloa^[10] (he does not know). He said that Constable Peter then took the photos^[11] and the substances were handed over to the exhibit officer, Constable Teresa. Constable Fuimaono said he was present in Room 18 when the two glass pipes were found in the bedroom by Constable Valaauina, he took the photos of the glass pipes^[12] and then went down to the car park where two vehicles belonging to Tupa’i were to be searched while police officers were still in Room 18.^[13] He said he was called back up to Room 18 when the mini plastic bag and the plastic straw were found. He took the photos of the mini plastic bag in the air condition remote stand and the plastic straw tube on the table at the corner of the bedroom.^[14]Constable Fuimaono never mentioned in his evidence that Tupa’i was with him when he was at the vehicles prior to being called back up to Room 18.
   • Sergeant Alapati Moafanua’s evidence is that he received the exhibits from Constable Theresa on 8 November 2022 – a mini plastic bag with white shiny substance weighing 1.17grams, two glass pipes of 13cm in length and a plastic white straw of 6cm in length. He noted all this in the Exhibit Book, labelled it and placed it in the Exhibit Room. On 16 November 2022, he took the exhibits and handed them over to Ms Luanda Epa of SROS.
5. The defendant exercised his right and did not give evidence.
6. The Court carried out a crime scene visit to put into perspective or to contextualize the evidence before the Court.

The Law

7. The prosecution must prove the following. The defendant:
   • (a) Possession of narcotics
   • (i) Had in his possession the unlawful substance, methamphetamine; and
   • (ii) Knowledge of its existence.
8. Possession comprises two elements: physical control of the objects and an intention to exercise authority or control over it. Physical control is actual or potential. The Court of Appeal in Attorney General v Fuaifale^[15] says that ‘potential physical control’ becomes relevant where a person does not have immediate physical possession of an item but is aware of its existence and intend to exercise control over it.
9. Intention is knowledge and awareness – ‘knowledge in the sense of an awareness by the accused that substance is in his possession (often referred or presumed) and the intention to exercise possession.’^[16]
10. Possession of a drug can be readily established by the circumstances giving rise to control or method of possession^[17] and extends beyond immediate personal possession at the relevant time.^[18]
    • (b) Possession of utensils
    • (i) Had in his possession a needle syringe, pipe or other utensil;
    • (ii) For the commission of an offence.
11. The second element requires the purpose for which the utensil was possessed. If such purpose entails the commission of an offence, then the primary offence under section 13(b) is complete.^[19]

The indisputable facts

12. The indisputable facts are:
    • Police received a call from Mareke Lodge of suspicious activities involving drugs going on at the Lodge;
    • Pursuant to section 14A of the Narcotics Act 1967 Police attended and carry out a search of Rooms 24 and 18 of the Mareke Lodge;
    • The defendant, Tupa’i Fialelei and his partner were the occupants of Room 18;
    • Tupa’i Fialelei was the only one present in Room 18 at the time the Police arrived and when the room was searched;
    • The following were found by the Police inside Room 18:
      • two (2) glass pipes;
      • a mini plastic bag with white substance inside; and
      • a white plastic straw.
13. The above, when found, were handed over to Constable Teresa Kanela, exhibit officer responsible for recording it down and having carriage of it. Senior Sergeant Alapati Moafanua received the substances and utensils from Constable Teresa. There was no suggestion that the chain of custody of the narcotics/utensils found was broken or tampered with. 
14. The Scientific Research Organization of Samoa (‘SROS’) Report by scientific analyst Luanda Epa was not contested and was tendered as Exhibit P1 by consent. In that Report Ms Epa confirmed receiving four (4) samples from Sergeant Alapati Moafanua on 16 November 2022. On 21 November 2022 she tested the substances received and found the following:
    • (a) The sample of white crystalline substance contained in the mini plastic bag to be methamphetamine;
    • (b) A clear glass pipe approximately 17cm long consisted of a round bottom and a cylindrical tube; the bottom has a hole approximately 7mm in diameter. White crystalline deposits, brown residue and charring observed in the interior of the glass was tested and confirmed to have contained methamphetamine;
    • (c) A clear glass pipe approximately 14.5cm long consisted of a round bottom with a hole approximately 1.2cm in diameter and a cylindrical tube with engraving of ‘15x150’. White crystalline deposits, brown residue and charring observed in the interior of the glass was tested and confirmed to have contained methamphetamine;
    • (d) A white, 6cm-long plastic straw sealed on one end; white crystalline deposits, were observed in the interior of the plastic straw near the brim of the open end was tested and confirmed to have contained methamphetamine.

Discussion

Set Up and Knowledge

15. Tupa’i suggested through his counsel’s cross-examination of prosecution witnesses that the mini plastic bag containing methamphetamine (‘ice’) was 'planted' by the police. The defense suggests that no ‘ice’ was found when the bedroom of Room 18 was searched with Tupa’i present but only when Tupa’i left the room and went to the car park that the mini plastic bag with the narcotic substance was found. The defense, in support of their contention, put forward evidence that the K9 dog did not find any narcotics during its search of Room 18. Such substance when shown to the defendant responded that he knew nothing about it – ‘e nate leiloa’ or that he does not know who owns it – ‘e nate leiloa poo ai e ona’. That is, the defendant denied having any knowledge of its presence. Counsel for the defendant placed reliance on the inconsistent in the evidence of the police officers.
16. The defendant is well known to the Police Officers saying that he has or has had similar matters with the Police. For this reason, Counsel also suggested that the Police had tried unsuccessfully in previous occasions to implicate the defendant in criminal activity as a reason for ‘planting’ evidence against the defendant. This is a very serious allegation against the police officers. There was not enough narrative to establish this suggestion to become relevant evidence in the present case. The suggestion is rejected.

Was Tupa’i present in Room 18 when the mini plastic bag containing ‘ice’ was found?

17. As to be expected there are inconsistencies in the evidence of the Police Officers, some said that Tupa’i was at the car park where his vehicles were searched and not in Room 18 when ‘ice’ was found, others said that Tupa’i was present throughout in Room 18, one police officer said he remembered seeing someone other than the police officers when the vehicles were searched but this other person never went up to Room 18 and others said that the vehicles were only searched after Room 18 had been searched.
18. The inconsistent evidence seems to come from the evidence of those police officers who were involved with the search of Room 24. They completed their search while the search of Room 18 was still in progress. Some of these police officers went to the car park where they said the vehicles were searched, some of these police officers heard Constable Siolo when he called out having found the mini plastic bag with ‘ice’, some of them saw Constable Peter at the vehicles, some did not, some saw Tupa’i where the vehicles were, some cannot remember seeing him there.
19. The evidence is the Police were split into two teams to search Rooms 24 and 18. The team for Room 18 was led by Constable Siuseia and his team consisted of Constable Valaauina, Constable Siolo and Constable Theresa Kanela. Except for the evidence of Constable Valaauina that I find confusing, the evidence of the rest of the officers allocated to Room 18 is, Tupa’i was present throughout the search of Room 18 and that the vehicles were only searched after Room 18 had been searched. Constable Theresa said that search protocol is, the person whose property is being searched (in this case occupant of the hotel room) must be present while the search is being carried out. Her evidence is echoed by the search team of Room 18.
20. The inconsistent evidence seems to come from the evidence of those police officers who were involved with the search of Room 24. They completed their search while the search of Room 18 was still in progress. Some of these police officers went to the car park where they said the vehicles were searched, some of these police officers heard Constable Siolo when he called out having found the mini plastic bag with ‘ice’, some of them saw Constable Peter at the vehicles, some did not, some saw Tupa’i where the vehicles were, some cannot remember seeing him there.
21. Constable Peter Fuimaono was tasked to take the photos of anything located and/or found by the police in the search of Room 18. His evidence contradicts the evidence of the search team for Room 18 in that he seemed to suggest that the search of Room 18 was completed when the two glass pipes were found and was the reason, he left the room and went down to the vehicles to be searched. It is evident that Constable Peter left Room 18 while the search was still in progress and walked down to the car park because he was called back up to Room 18 when the mini plastic bag with ‘ice’ was found.
22. It follows that there is evidence that the vehicles were searched while the search of Room 18 was still in progress and there were police officers who said that the vehicles were only searched after Room 18.
23. I reject the suggestion that the narcotic substances were planted by the police officers. Firstly, Mareke Lodge employee confirms that Tupa’i and his wife were the occupants of Room 18 where they checked in on Saturday, 5 February and were still there when the Police attended and carried out a search on Monday, 7^th February 2022. There was no evidence to suggest that Tupa’i and his wife checked out and re-checked back in to Mareke prior to the search on Monday, to mean that someone may have occupied or have access to the room. Secondly, no one else was present in Room 18 but Tupa’i when the police turned up and carried out the search. Thirdly, the suggestion by Counsel for the defendant that the evidence was planted is simply based on the evidence of some that Tupa’i was not present in the room when the mini plastic bag was found. Lastly, if the mini plastic bag was planted then the police officers would have had to ‘plant’ the glass pipes and white plastic straw as well. The glass pipes and white plastic straw were found by SROS to contain residue of methamphetamine.
24. Defense Counsel put it to Constable Siolo who found the mini plastic bag with ‘ice’ that he planted the substance, and she was met with a stern ‘no’ from the Constable; he was also asked whether he has any reason that he does not like the defendant and he responded ‘no, none’. It is unlikely that Constable Siolo would risk dishonor and dismissal from the service to do what Counsel for the defendant seems to be suggesting. There is no other evidence to suggest or that can be inferred that the Police planted the mini plastic bag containing ‘ice’ where it was found in Room 18.
25. Defense Counsel also put it to the search team of Room 18 that the K9 dog did not find any evidence. The police officers tasked with the search of Room 18 referred to the presence of the K9 Unit and the photos also show them in Room 18 yet no one from the K9 Unit gave evidence. There is inconsistency with the evidence by the police officers as to when the K9 Unit dog carried out the search whether before or after the physical search of Room 18 by the police officers. The photos taken by Constable Peter when the utensils and mini plastic bag was found do not show the presence of the K9 Unit at that time as they were in the earlier photos. This could mean that the K9 Unit had already carried out a search and left. This is consistent with the evidence by some police officers that the K9 Unit first carried out a search before the Police carried out a physical search of Room 18; obviously the K9 Unit dog did not find anything.
26. I can understand the K9 Unit dog not being able to find anything given that the glass pipes and the mini plastic bag were found high off the ground or floor of the room they were found in, with the white plastic straw also on the table at the corner of the room.
27. There was too much coincidence in the finding of utensils and illegal substances in the room registered to the defendant’s name and he was found in the room by himself with no one else, a finding not disputed. In evidence at trial, the defendant from the evidence of police officers did not seriously dispute the finding of the utensils and ‘ice’ but only claimed to have no knowledge of their existence.
28. The inconsistency (if any) in my view only adds to the credibility of the police officers who attended to the search. This would show that there had been no collusion amongst the police officers with their evidence. Whilst there may be inconsistency with the evidence, I have no reason to doubt the accuracy or veracity of the evidence of those police officers who carried out the search of Room 18 – Constable Valaauina, Constable Siolo and Constable Teresa who gave cogent evidence at trial.
29. The search was properly executed by officers who properly identified themselves to the defendant. The utensils found were tested by SROS and were found to have residue or crystalline deposits of ‘ice’ strongly suggesting that the purpose for the utensils were for the commission of an offence, i.e., for the smoking of ‘ice’.

Conclusion

30. I find the following facts to be established beyond reasonable doubt:
    • (i) Tupa’i (and his partner) were the occupants of Room 18 and was the only one present when the Police attended and carried out a search, therefore had full control of the room;
    • (ii) There is no evidence to suggest that anyone else had access to Room 18 from when Tupa’i (and his partner) checked in on Saturday, 5 February to Monday, 7^th February 2022 when the police executed the search of Room 18;
    • (iii) There is no physical evidence that the mini plastic bag containing ‘ice’ and utensils were planted by the Police;
    • (iv) There is no evidence to suggest that the mini plastic bag containing ‘ice’ and utensils were planted where they were found by anyone else.
31. The Court is satisfied beyond reasonable doubt that the defendant, Tupa’i Fialelei knowingly had in his possession the mini plastic bag containing methamphetamine known as ‘ice’ and the utensils found of two glass pipes and white plastic straw were used for the smoking of ‘ice’.

JUSTICE TUATAGALOA

^[1] Crime Scene Photos – Exhibit P2 Photo 3
^[2] Ibid, Photo 4 – with the green-colored phasing and the defendant seen standing inside; Photos 5-14 – inside of the small bedroom.
^[3] Photo 8 of Exhibit P2
^[4] ibid
^[5] Transcript, p10 lines 26-34, p11 line 1
^[6] Air condition remote control stand marked ‘S’ in Photos 9, 11 & 12; Photos 13 & 14 close up photo of the air condition remote stand.
^[7] Photos 13-14
^[8] Photos 9-12
^[9] From the site visit, Mareke Hall was at the end of the building where Room 18 is but near Room 24.
^[10] Transcript, p118 lines 30-31
^[11] Exhibit P2, Photos 11-14
^[12] Photos 6-8
^[13] Transcript, p6 lines 27-30
^[14] Photos 10-14
^[15] Attorney General v Fuaifale [2016] WSCA 3 (19 February 2016)
^[16] R v Cox [1990] NZCA 13; [1990] 2 NZLR 275
^[17] R v Peevey [1973] 57 Cr. App. R 554; E v Ashton-Rickardt [1978] 1 All ER 173).
^[18] DPP v Brooks [1974] AC 862
^[19] Police v Barlow [2017] WSSC 168 (3 November 2017)