Former Deputy Electoral Commissioner Found Guilty of Possession of Narcotics, Utensils, Unlawful Weapons and Ammunition

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2 September 2022, Mulinuu Court. Samoa’s former Deputy Electoral Commissioner Faumui Afualo Daryl Mapu, has been found guilty of possession of narcotics and illegal firearms.

The decision was delivered by Justice Tafaoimalo Tologata Leilani Tuala-Warren on Friday afternoon, following a week-long hearing that was held in July.

Faumui was arrested and charged along with a colleague from the OEC after a police raid of his home at Nuu Fou last December.

Ms Marie Fanueli, who was visiting Faumui’s home as his girlfriend on the day of the raid, was exonerated by Justice Tuala-Warren.  States the decision: “I am not satisfied beyond reasonable doubt that Marie was in possession of the narcotics, utensils, firearms or ammunition. All charges against her are dismissed”.

Faumui had maintained his innocence throughout, denying all 6 charges against him. Faumui’s defense hinged on the testimony of one Pelepesite Ta’ua – who told the Court Faumui had nothing to do with the narcotics, firearms, utensils and ammunition found in Nuu Fou, because they all belonged to him.

Faumui took the stand to give evidence during the trial. His story collaborated with Pelepesite’s, however, Justice Tuala-Warren was not convinced, and referred to a time when the pair had shared a cell at Tanumalala prison in December last year.

States the judge in her decision – “Daryl and Pelepesite shared a cell together in custody for two months when Pelepesite was arrested on an unrelated matter in December 2021. Pelepesite admitted that during this time, they discussed the case.  This allowed them ample opportunity to discuss the evidence that they would give. The discussion of this case by Daryl and Pelepesite has a significant bearing on the credibility, reliability and the truthfulness of their evidence”.

“Furthermore, Pelepesite is not a credible witness in terms of his ownership of the shorts because he is a self-confessed drug dealer and user, and has no respect or regard for the law”.

In his evidence, Pelepesite named those he had received the firearms from, as well as a man from Vaitele he said he dealt drugs for. He openly spoke about the drug trade, and his dealings in drugs and firearms, which he said he would receive as barter in exchange for drugs when clients could not pay cash.

Justice Tuala-Warren did not buy the story that Daryl was wearing Pelepesite’s shorts, and that he had no knowledge of the drugs found in the short pockets during a body search by police on the day of the raid.

I am not convinced for several reasons. The methamphetamine was found in a pocket of the shorts worn by Daryl. Although Daryl said in his evidence that he didn’t try to hide anything from Police, at no point during the search or after at the Police Station did Daryl tell the Police that the shorts belonged to Pelepesite. Further, when Police conducted the body search and found the methamphetamine in the pocket of the shorts, Daryl was able to immediately identify the substance as “aisa”. He went on to explain that it was “meth faapalagi ae ou te leiloa le faasamoa”. If it was not Daryl’s shorts that the narcotics were found in as Daryl states, he would not have known what the substance was that was found in the pockets..

“I also do not find credible Daryl’s evidence that he put the shorts on as he had nothing else to wear. In his evidence he says he wore a towel into the bedroom and put it on a speaker. Even with this towel in the bedroom, he put on the shorts, and later when Police were there, he put on a tshirt which was on the bed. I find he put on these clothes because they were his. His wallet was also inside one of the pockets of the shorts. Daryl says he put his wallet into the pocket of the shorts as he was going downstairs to pay Pelepesite for the food. I do not accept his evidence about his wallet because I do not regard him as credible. He had actual physical custody of the narcotics in his pocket.”

Justice Tuala-Warren ordered a pre-sentence report before sentencing.

“Daryl will be sentenced on 14 October 2022 at 12:30pm.. Bail will continue until the date of sentencing,” the Supreme Court Justice concludes.

Below – your weekend reading of the decision in full.


 

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN: P O L I C E

Prosecution

A N D: DARYL MAPU, male of Nuu

First Named Accused

MARIE FANUELI female of Vaivase and Aleisa

Second Named Accused

Counsel: I. Atoa for Prosecution

L. Su’a-Mailo for the First Named Accused

M. Leung Wai for the Second Named Accused

Hearing dates: 27th, 28th, 29th, 30th June 2022, 01st, 05th , 07th, 20th, 26th July 2022.

Decision: 02nd September 2022.

RESERVED DECISION OF TUALA-WARREN J

Introduction

[1] On 28 December 2021 at the family home of Daryl Mapu at Nuu Fou, Police conducted a search for firearms. The search was pursuant to a search warrant issued by Deputy Police Commissioner Auapa’au Logoitino Filipo under section 21 of the Arms Ordinance 1960.

[2] Police found Daryl Mapu (‘Daryl’) and Marie Fanueli (‘Marie’) in an upstairs bedroom of the home. Found in the bedroom were firearms, ammunitions and 2 glass pipes (‘utensils’) now the subject of these charges before the Court. Also found in a pocket of the shorts worn by Daryl were alleged narcotics.

The Charges

[3] As a result of the police search, the accused have been charged with six joint charges as follows;

(a) Possession of narcotics, namely 5 clear sealed plastic bags containing methamphetamine weighing 1.6 grams; (Narcotics Act 1967 section 7(1)(a) and 18(a), & Crimes Act 2013 section 33);

(b) Possession of utensils, namely 2 glass pipes for the purpose of committing an offence against the Act; (Narcotics Act 1967 section 13(b) & Crimes Act 2013 section 33);

(c) Possession of unlawful weapon, namely one 9mm pistol, one 22 pistol semi automatic, one 357 magnum pistol revolver not being authorised by the Minister of Police; (Arms Ordinance 1960 section 12 & Crimes Act 2013 section 33);

(d) Possession of unregistered firearm, namely one 12 gauge shotgun break single action barrel and one 22 rifle semi-automatic without valid certificate of registration; (Arms Ordinance 1960 section 9 & Crimes Act 2013 section 33);

(e) Possession of unlawful ammunitions, namely twenty three live rounds 9mm; (Arms Ordinance section 12 & Crimes Act 2013 section 33); and

(f) Possession of ammunitions without permit, namely four 22 live rounds calibre without permit. (Arms Ordinance section 7 & Crimes Act 2013 section 33).

[4] Both accused pleaded not guilty to the charges and a defended hearing followed.

[5] At the end of the Prosecution evidence, Mrs Sua-Mailo made an Application that there was no case to answer in respect of the narcotics charges against Daryl. I dismissed that Application in an oral ruling dated 5 July 2022.

[6] Prosecution called 19 witnesses. Daryl elected to give evidence and called one witness, Pelepesite Faavae (‘Pelepesite’).

[7] This is my reserved decision.

Law

Possession of narcotics

[8] Possession has two elements. This was referred to in the case of Police v Chan Chui-Judgment [2007] WSSC 73 (25 September 2007) in which Sapolu CJ used the explanation by Hardie Boys J in R v Cox [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 the methamphetamine (in this case) is in his possession (often inferred or presumed) and the intention to exercise possession.

[9] In Attorney General v Fuaifale [2016] WSCA 3 (19 February 2016), the Court of Appeal referred to the above passage in R v Cox with approval.

[10] As to the physical element, Sapolu CJ in Police v Nauer [2007] WSSC 39 (1 May 2007) says as follows:

Firstly, that the defendant was in possession of the narcotics. This is referred to in previous decisions of this Court as the physical element of the charge, namely, that it must be shown the defendant has actual physical custody or control of the narcotics.

[11] Implicit in this statement is that it must be shown that the substances in the defendant’s possession were in fact narcotic substances within the terms of the Narcotic Act 1967. (per Sapolu CJ in Police v Nauer).

[12] Sapolu CJ in Chan Chui used the explanation of the mental element below;

In the leading case of R v Warner [1969] 2 AC 256, Lord Morris of Borth-y-Gest expressed this at p.269:

In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it.

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.

Possession of Utensil-Narcotics Act 1967 section 13 (b)

[13] Section 13(b) of the Narcotics Act 1967 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.

[14] The Court of Appeal set out in the case of AG v Vai [2008] WSCA 10, the interpretation of s13(b) Narcotics Act 1967. It was 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.

[15] The Court of Appeal agreed with the interpretation of section 13(b) expressed by Sapolu CJ in Police v Esera [2008] WSSC 43 (23 June 2008) and Police v Tagaloa Runi Masame [2007] WSSC 83 (30 October 2007).

[16] In Police v Esera, His Honour accepted in relation to the plastic bags and two straws that they were in the possession of the accused for the purpose of the commission of an offence against the Act, namely possession of narcotics.

[17] In Police v Masame, His Honour was dealing with a glass pipe. He said:

It is true that there is no offence of smoking methamphetamine or ‘ice’ spelled out in the Act. But there is an offence of possession of narcotics under s.7 of the Act and methamphetamine is a narcotic in terms of the Act…So the real offence against the Act is not smoking methamphetamine for there is no such offence provided in the Act, but possession of a narcotic, namely methamphetamine or ‘ice’.

Issues

[18] I will deal firstly with the narcotics charges, followed by the firearms charges against Daryl, and then Marie.

[19] Before delving into the evidence, there are a few facts which are not in dispute. The home which was searched by Police belongs to Daryl and his wife and they live there with their children. Daryl’s wife and children were not home on the day of the police search. Marie does not live in that home but is Daryl’s girlfriend who Daryl picked up and brought home on the day in question. There is no dispute that the utensils were found on the table in the bedroom in which Daryl and Marie were. There is no dispute that alleged narcotics were found in a pocket of the shorts worn by Daryl.

[20] Daryl however disputes both ownership and possession of the alleged narcotics and the utensils. Firstly, he disputes the chain of custody of the alleged narcotics and the utensils. Secondly he says the shorts he wore and the utensils in the room belong to Pelepesite.

Evidence

[21] The evidence is that in the evening of 28 December 2021, the Police executed a search of Daryl’s home at Nuu Fou. The Police arrived and Daryl came downstairs from the bedroom above the garage. The search warrant was duly given and explained to him. Daryl was asked about the 9mm firearm. He was cooperative and led the Police upstairs to the bedroom where the 9mm was lying on the bed. Marie was in the bedroom. He and Marie were present in the bedroom when the 9mm was found on the bed and 4 other firearms were discovered under the mattress of the bed.

[22] Daryl’s body was searched and inside one of the pockets of the shorts he was wearing was his wallet and inside another pocket was a small bag containing 5 plastic bags of white substance. He was wearing cargo shorts which he says has four pockets. Upon being asked what the white substance was, Daryl replied it was “aisa”. On a coffee table in the bedroom, were 2 glass pipes, one visible and one in a bag. The accused were cautioned many times during the search and informed of their rights.

[23] The white substance was later tested by SROS and confirmed by SROS Principal Research Scientist Luanda Epa (‘Luanda’) to be methamphetamine. The glass pipes were tested and confirmed by Luanda to contain methamphetamine.

Chain of Custody

[24] Daryl has raised an issue with the chain of custody of the alleged narcotics and glass pipes, from the time of seizure to when it was tested by SROS.

[25] I keep in mind what the New Zealand Court of Appeal said about chain of custody in Dodgson v Police [2011] NZCA 428 (30 August 2011), “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”.

[26] Prosecution evidence in relation to the chain of custody is as follows.

[27] Corporal Malaeimi Taefu’s evidence is that he searched Daryl’s body and found in one of the pockets of Daryl’s shorts, a little reddish bag, and in another pocket, a wallet. The wallet was opened and inside were ATM cards and Daryl’s driver’s licence. The little reddish bag had inside 5 small plastic bags containing white powder. He asked Daryl what this was and Daryl replied ‘”aisa”. He asked Daryl “oa aisa?” to which Daryl replied “meth faapalagi ae ou te leiloa le faasamoa”. Corporal Malaeimi says they then moved to the table where there were 5 gas lighters and 2 glass pipes. There was also a scale, a cut straw, a plastic spoon, 2 empty plastic bags and a telephone on the table, among other things.

[28] I accept that this is what happened in relation to the body search of Daryl and what was found in the shorts he was wearing. Although Defence has raised issues with Corporal Malaeimi’s subsequent written report in that it was almost identical with Corporal Tasi Matafeo’s report, there are other Police witnesses who together have confirmed Corporal Malaeimi’s account of what happened on the day of the police search. Corporal Tuifao Luatua, Constable Siemu Sua and Corporal Faatonu Leava all confirm that Corporal Malaeimi conducted the body search of Daryl and what was found in the pockets of the shorts he was wearing.

[29] I also accept Daryl’s body search was lawfully conducted. It was conducted after firearms were found and at least two Police officers, being Corporal Tuifao and Corporal Maleaimi spoke of their suspicions raised by Daryl’s suspicious behaviour whereby he kept moving away from Corporal Tuifao who was guarding him. This is the reason they informed Inspector Paul Tauaa that Daryl had not been searched. Corporal Tuifao says he had to tell Daryl many times to stay and watch the search because he kept trying to walk away from him. Constable Lealofi Leavasa also noticed that Daryl tried to walk away from Corporal Tuifao. Inspector Paul says he told Corporal Malaeimi to conduct a body search for safety as firearms had been found in the bedroom.

[30] Section 14A Narcotics Act 1967 also allows a Police search without a warrant of a person if 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.

[31] The bedroom in question is not a large room. I see this from the video of the search. The table with the drug paraphernalia is in the middle of that room at the foot of the bed. The police officers who carried out the search, have all previously been on police searches and are well aware of these items and what they signal.

[32] Once the contents of the body search were placed on the table in the bedroom, along with other things found on the table, the evidence is that the exhibit officers started to record and place the exhibits in brown envelopes and into a container. According to Corporal Taylor Mulitalo, Corporal Faatonu Leava was recording what was found. Corporal Faatonu confirms that he started the recording. He is seen in the video writing and I accept that he was one of the exhibit officers, recording the exhibits with Corporal Vitolina Niko then taking over the recording. Corporal Faatonu together with Constable Siemu Sua and Corporal Vitolina Niko were the exhibits officers. This is because they carried out between the three of them, the work of recording the exhibits, packing them into brown envelopes and putting those into a container. According to Constable Siemu, he, Corporal Faatonu and Corporal Vitolina then brought the container downstairs. According to Corporal Faatonu it was brought to the Police Station in the Police car in which Inspector Paul was travelling, and was lifted into the Criminal Investigations Division (CID). The three exhibit officers then took everything, recounted to check their recording and lay the exhibits out on a table in the presence of Daryl and Marie.

[33] Corporal Faatonu prepared the Property Seizure Record (‘PSR’). I accept that the accused signed the PSR not as an admission that they owned the exhibits. All suspects sign the PSR and the issue of ownership of exhibits is separate. According to Inspector Paul, the exhibits, after being shown to the accused and the investigation having ended for the night, were packed and put into Superintendent Col Aumua’s office overnight.

[34] The following day, 29 December 2021, at around 10am, the narcotics exhibits (not including the firearms) were given by Inspector Paul to Sergeant Alapati Moafanua of the Narcotics division, who stored these in the exhibits room which is inside their office. On 17 June 2022, Sergeant Alapati gave the exhibits to Phillip Reti at SROS. They were tested on 19 June 2022. SROS tests confirmed that the white substance exhibits from Sergeant Alapati were methamphetamine and the glass pipes contained methamphetamine.

[35] There are a few issues raised by the Defence. The first is in relation to the overnight storing of the exhibits in Superintendent Col Aumua’s office. Superintendent Col Aumua did not give evidence. The only evidence as to this storage was given by Inspector Paul vive voce. Defence contends that there was no proper documentation of the handover of the exhibits, there is no mention of Inspector Paul’s involvement in the chain except in the report of Sergeant Alapati, others have access to the exhibits room and not all property seized from Daryl’s house was recorded in the PSR, such as the red digicel bag, the black case, ladies perfume and tweezers, four hair pins, phone cover holder and one straw.

[36] In relation to the above items missing from the PSR, I do not find that this has any bearing on the chain of custody. These items are not the subject of the charges against the accused. They are charged with alleged narcotic substances and utensils, not the bags within which they were found.

[37] In relation to Superintendent Col Aumua not giving evidence, Defence submits that this lack of evidence should create a reasonable doubt that the substances found at Daryl’s home were the same substances given to SROS.

[38] I accept the evidence of Inspector Paul Tauaa, who said that he put the exhibits into Superintendent Col Aumua’s office, who is their superior, in charge of CID, for safe keeping that night once the investigation had ended. He says he then gave these exhibits to Sergeant Alapati the next morning. It was clear in Inspector Paul’s evidence that he can only access Superintendent Col Aumua’s room during working hours, as he does not have a key. I found Inspector Paul to be credible and his evidence reliable. His evidence was straightforward, clear and as a witness he was calm, forthright and collected.

[39] I find that although Superintendent Col Aumua was not called, this does cause a break in the chain of custody so significant to be fatal to Prosecution’s case as submitted by Defence. There is reliable evidence from Inspector Paul that the exhibits were safely stored that night and handed over to Sergeant Alapati the next morning. Given Inspector Paul’s evidence, I am satisfied that there is adequate evidential basis to support my conclusion that the exhibits found at Daryl’s house on 28 December 2021 were the same exhibits stored in Col Aumua’s office, which were then given to the exhibits officer Sergeant Alapati on 29 December 2021. Furthermore, there is no evidence from which I can make a reasonable inference that there was interference or tampering with the evidence whilst stored in Superintendent Col Aumua’s office given no one has access to the office after hours.

[40] Another issue raised by Defence is in relation to the evidence of Sergeant Alapati where he said he was given 6 plastic bags. He said one was empty and five contained white substances. The 6th empty plastic bag is immaterial. There is consistent Prosecution evidence that 5 bags contained white powder.

[41] Defence submits there is an inconsistency in the grams of the substances given to SROS in relation to one of the plastics bags. It weighed 0.1 grams, without the plastic bag when weighed by Sergeant Alapati, and the evidence from Luanda Epa is that this particular exhibit, weighed 0.10 grams without the plastic bag. Defence submits that given Sergeant Alapati’s evidence that he sends a portion or a sample to SROS, it cannot be that the measurement by Sergeant Alapati is the same as the measurement by SROS. It was clear in the evidence of Sergeant Alapati and Luanda that Police and SROS use different scales. We are not comparing like with like as we are dealing with different scales and slight differences in measurements is to be expected. I am satisfied that this minor discrepancy in the measurements is due to the different scales used. It does not take away from a fact which I have found to be established to my satisfaction that the exhibits stored by Sergeant Alapati are the same exhibits which were given to SROS to be tested on 17 June 2022. The length of time it was stored before testing by SROS is satisfactorily explained by Sergeant Alapati. He says that the Ministry of Police pays for the testing but they await instructions from the Office of the Attorney General. I accept this explanation.

[42] I now assess this finding that the white powder was methamphetamine, and utensils contained methamphetamine, which were found at Daryl’s home, against the elements of possession.

Daryl Mapu

(i) Possession of Narcotics (5 plastic bags and 2 glass pipes)

[43] Daryl elected to give evidence, and called the evidence of Pelepesite.

[44] The 5 plastic bags confirmed as containing methamphetamine were found in a small bag in one of the pockets of the shorts which Daryl was wearing. The prima facie inference is that he is in possession of the narcotics. This inference can be rebutted by evidence to the contrary (if accepted). See Police v Chan Chui – Written Ruling [2007] WSSC 72 (18 September 2007).

[45] Daryl gave evidence that the shorts were not his. He put it on as it was on the bed and he had nothing else to wear, and he had to go downstairs to get the food he had sent Pelepesite to buy.

[46] Pelepesite was duly informed of the privilege against self-incrimination and having waived that privilege, said the shorts Daryl was wearing together with the narcotics in the pocket of those shorts were his. Pelepesite admitted that he is a dealer and the narcotics, glass pipes and firearms were his.

[47] I have no reason to doubt Pelepesite’s evidence about himself and how he obtained the drugs and the firearms. I have no doubt that he was heavily involved with narcotics, and probably still is. He was quite content to explain his illegal trade in Court. However, he is not on trial. He is the defence’s main witness.

[48] In terms of possession I must be satisfied firstly that Daryl had actual or potential physical custody or control of the narcotics.

[49] Pelepesite gave evidence that Daryl had nothing to do with the narcotics and firearms found in the bedroom in Nuu Fou. I am not convinced for several reasons. The methamphetamine was found in a pocket of the shorts worn by Daryl. Although Daryl said in his evidence that he didn’t try to hide anything from Police, at no point during the search or after at the Police Station did Daryl tell the Police that the shorts belonged to Pelepesite. Further, when Police conducted the body search and found the methamphetamine in the pocket of the shorts, Daryl was able to immediately identify the substance as “aisa”. He went on to explain that it was “meth faapalagi ae ou te leiloa le faasamoa”. If it was not Daryl’s shorts that the narcotics were found in as Daryl states, he would not have known what the substance was that was found in the pockets.

[50] I also have serious doubts over this part of the defence evidence that the shorts in which the methamphetamine was found belonged to Pelepesite. Daryl and Pelepesite shared a cell together in custody for two months when Pelepesite was arrested on an unrelated matter in December 2021. Pelepesite admitted that during this time, they discussed the case. This allowed them ample opportunity to discuss the evidence that they would give. The discussion of this case by Daryl and Pelepesite has a significant bearing on the credibility, reliability and the truthfulness of their evidence.

[51] Furthermore, Pelepesite is not a credible witness in terms of his ownership of the shorts because he is a self-confessed drug dealer and user, and has no respect or regard for the law.

[52] I also do not find credible Daryl’s evidence that he put the shorts on as he had nothing else to wear. In his evidence he says he wore a towel into the bedroom and put it on a speaker. Even with this towel in the bedroom, he put on the shorts, and later when Police were there, he put on a tshirt which was on the bed. I find he put on these clothes because they were his. His wallet was also inside one of the pockets of the shorts. Daryl says he put his wallet into the pocket of the shorts as he was going downstairs to pay Pelepesite for the food. I do not accept his evidence about his wallet because I do not regard him as credible. He had actual physical custody of the narcotics in his pocket.

[53] I remind myself that for possession in terms of the physical element, I must find either actual OR potential physical custody, or control. I have found Daryl to be in actual physical custody of the narcotics, and utensils which I will discuss later. However if I am wrong in that finding, I find that Daryl also had potential physical control of the narcotics and utensils. This is due to my finding about the bedroom within which Pelepesite says he keeps his drugs and glass pipes.

[54] Daryl and Pelepesite’s evidence about the bedroom is that when Daryl and Marie needed to use the room, Daryl would ‘faanoi’ or ask for permission from Pelepesite. The context in which I assess this evidence is as follows. Pelepesite is an unemployed transient, and he was allowed by Daryl to stay at his home. In return Pelepesite fixed Daryl’s car and did odd jobs around the house. Pelepesite says he mostly goes to see his friends and would sleep at their places. The relationship between Daryl and Pelepesite, and its terms are dictated by Daryl. He is the owner of the house. He was at the time Deputy Electoral Commissioner, a high ranking position in the public service. Pelepesite relied on Daryl for a place to stay on occasion and the use of a car. The idea that Daryl would have to faanoi or ask permission from Pelepesite to use a bedroom in his own house is far-fetched and improbable.

[55] Pelepesite gave evidence that since he has stayed at Daryl’s house, he has his drugs, his glass pipes and firearms in the bedroom. This was for 3 months ending on the day of the search. I find that Daryl was aware and had knowledge of the narcotics as he recognised the ‘meth’, knew Pelepesite smoked ice and I do not accept his evidence about access to this bedroom. Daryl had potential physical custody and control of all the contents in that bedroom.

[56] The second element of mens rea is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the methamphetamine (in this case) is in his possession (often inferred or presumed) and the intention to exercise possession.

[57] I find that Daryl had the requisite knowledge for several reasons. He knew the substance in his pocket was ‘meth’, he knew Pelepesite smoked ice and has known Pelepesite since 2012.

[58] His intention to exercise possession of the methamphetamine can be inferred from his words and behaviour, and all the surrounding circumstances (as discussed above). Daryl was knowingly in control of the methamphetamine in circumstances which showed that he was assenting to being in control of it.

(ii) Possession of Utensils

[59] In order to establish this offence against Daryl, the first step requires proof that he was in possession of the utensils. The second step is concerned solely with the Daryl’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.

[60] There is no dispute that the 2 glass pipes found in the bedroom and tested by SROS contained methamphetamine. The purpose for the glass pipes is for the commission of an offence against the Act, namely possession of narcotics.

[61] The glass pipes were found on the table in the bedroom. One pipe was visible and the other was in the bag. Also on the table were gas lighters, an electronic scale, at least one straw, one white plastic spoon and empty plastic bags. The table is in front of the chairs on which Daryl says he and Marie were sitting. They were sitting there for over an hour. He says he did not take notice of what was on the table.

[62] I do not accept his evidence as this is implausible and improbable. From the photos and the video of the search, the chairs on which he and Marie were sitting surround the table in a tight space.

[63] In cross examination he said he is aware that these pipes are used to smoke ice as ‘ua leva ona ola’. He knew the purpose for which these pipes are used.

[64] I find he was aware of the glass pipes, he was in actual physical custody of them, and he intended to exercise control over them.

[65] I accept all of Pelepesite’s evidence on his extensive knowledge and description of the narcotics and utensils. But it is important to note that while I accept Pelepesite’s evidence that he obtained the narcotics and utensils, I find that this does not exclude Daryl’s liability as being in possession of these. This is a situation where these items are in the joint possession of Daryl and Pelepesite, who is not charged in this case.

[66] I am satisfied that Daryl was in possession of the utensils, namely 2 glass pipes, for the purpose of committing an offence under the Narcotics Act 1967; the offence being the possession of narcotics.

(iii) Possession of unlawful weapon, namely one 9mm pistol, one 22 pistol semi automatic, one 357 magnum pistol revolver not being authorised by the Minister of Police

(iv) Possession of unregistered firearm, namely one 12 gauge shotgun break single action barrel and one 22 rifle semi automatic without valid certificate of registration

(v) Possession of unlawful ammunitions, namely twenty three live rounds 9mm

(vi) Possession of ammunitions without permit, namely four 22 live rounds calibre

[67] Daryl disputes the 4 firearms and ammunitions charges. I will deal with these charges together.

[68] Section 12 of the Arms Ordinance 1967 provides;

12. Possession of unlawful weapon – (1) Except as provided in subsection (2), a person who is at any time in possession of an unlawful weapon, or of any part or parts of an unlawful weapon, or of any part or parts specially intended or adapted for use as part of an unlawful weapon, or any ammunition for an unlawful weapon, shall forthwith cause the weapon or the parts or the ammunition to be destroyed, exported from Samoa, or delivered to the Arms Officer.

(2) The Minister may, by licence in writing and on payment of the prescribed fee, authorise any person in any special case and for any special reason to have in his or her possession any unlawful weapon or any ammunition for an unlawful weapon, subject to such conditions as to use or custody as the Minister may impose. The licence may be revoked at any time by the Minister without notice.

[69] In section 2 of the said Ordinance, “pistol” includes any firearm the barrel of which does not exceed 12 inches in length, and “unlawful weapon” means any pistol, machine-gun and any other firearm of whatever type except a .22 single-shot rifle, an air-gun or a shot-gun.

[70] It is not in dispute that the 9mm pistol with ammunitions were found lying on the bed in the bedroom where Daryl and Marie were, and the 22 pistol semi automatic and 357 magnum pistol were found under the mattress of the bed. I accept these are unlawful weapons under the Arms Ordinance 1960 as all are captured under the definition of “pistol”, and none are the subject of a licence from the Minister. The unlawful ammunition for the 9mm pistol, namely 23 live rounds, is also unlawful per section 12 of the Arms Ordinance.

[71] The relevant parts of section 9 of the Arms Ordinance 1960 provide;

9. Registration of firearms – (1) A person, other than a licensed dealer, must not be in possession of any firearm for a period longer than 7 days unless the person is registered as the owner of the firearm under this section.

(11) A person who breaches this section commits an offence and is liable on conviction to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years, or both. In any prosecution for the offence, if the defendant is proved to have been in possession of the firearm, the burden of proving that the defendant was the holder of a valid certificate of registration in respect thereof as aforesaid, or that the defendant has not been in possession thereof for more than 7 days, or that the defendant was lawfully in possession thereof pursuant to this section, lies on the defendant.

[72] I accept the 12 gauge shotgun break action single barrel and the 22 rifle semi automatic also found under the mattress of the bed, both did not have a certificate of registration pursuant to section 9 of the Arms Ordinance 1960. I accept Inspector Toddy’s evidence that he searched the Firearms Database and discovered these firearms were unregistered. Daryl has not proved that he is the holder of a valid certificate of registration.

[73] The relevant parts of section 7 of the Arms Ordinance 1960 provide;

7. Permits for possession – (1) Subject to this Ordinance, no person shall, whether by way of purchase or in any other manner, procure possession of any firearm or ammunition otherwise than pursuant to a permit under this section.

(4) A person who breaches or attempts to breach this section commits an offence and is liable on conviction to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 2 years, or both, and the burden of proving the existence and terms of any such permit as aforesaid lies on the defendant.

[74] I accept that the ammunition, namely four 22 live rounds calibre did not have a permit as required by section 7 of the Arms Ordinance 1960.

[75] I am also satisfied that the same five firearms were tested by Inspector Toddy Iosefo who heads Tactical Operations Services (TOS) in June 2022 and exhibited at the hearing. Inspector Toddy confirmed in Court the firearms and ammunitions taken from Daryl’s home. He confirmed he assisted in bringing the firearms and ammunitions to the Police Station. Sergeant Ioane Tavai of TOS received them from Inspector Paul Tauaa of CID on 31 December 2021 and he labelled and placed them into their exhibits room, within the TOS office, which has cameras and is looked after by Inspector Toddy. The handover of firearms and ammunitions from CID to TOS was witnessed by Corporal Malo Fagalele.

[76] The issue is whether these were in the possession of Daryl.

[77] Section 19 of the Ordinance is a deeming provision. It provides;

19. Occupier of premises deemed to be in possession of arms, ammunition or explosives found thereon – For the purposes of this Ordinance, a person in occupation of any land or building on which any firearms, ammunition, or explosives are found is, though not to the exclusion of the liability of any other person, taken to be in possession of those arms, ammunition, or explosives, unless the person proves that they were in the possession of some other person or satisfies the Court that he or she had no reasonable grounds for believing that they were on such land or building. (my emphasis)

[78] I accept Daryl was in occupation of the house and in particular the bedroom within which the firearms and ammunitions were found. Daryl gave evidence, corroborated by Pelepesite that Pelepesite was the owner of the firearms and ammunitions.

[79] There is no doubt that Pelepesite obtained the firearms and ammunitions as he admitted to this in Court. However I find that Daryl was in possession of the firearms and ammunition, in conjunction with Pelepesite. When the Police first arrived and asked about the 9mm, Daryl took them to the bedroom. When Daryl was asked about the 9mm lying on the bed in clear view and cocked ready to be discharged, he replied “o le mea lena na aumai ai le faga” (that’s how the gun was brought). If he had no knowledge of the gun on the bed, he would not have replied in that manner.

[80] Inspector Toddy said that one gun butt was visible from under the mattress which is why he lifted the mattress. I accept this evidence. This means that Daryl who was in the bedroom for more than an hour was aware of these firearms. At no point did Daryl tell the Police at the search that the firearms and ammunitions did not belong to him. Daryl says he told Pelepesite to take the 9mm pistol away from his house when he saw it on the bed. This is also Pelepesite’s evidence. Daryl says he asked Pelepesite about the gun and Pelepesite said the “kaki oga o le mea lega sa aumai ai le faga” (cocked because that how the gun was brought). When Daryl was asked how he knew the gun was cocked he replied that he watches movies.

[81] As mentioned earlier, I do not find Daryl and Pelepesite credible having had ample time together in custody where they shared the same cell, to discuss their evidence. In relation to the deeming provision, I do not find that Daryl has proved that the firearms and ammunitions were in the possession of Pelepesite alone, nor has he satisfied me that he had no reasonable grounds for believing that they were inside a bedroom of his house which he was inside. Having heard their evidence in Court, and the consistencies in the minor detail in particular, I find that their evidence was incredibly consistent and too precise. Their evidence came across as rote and rehearsed. Some imprecision is to be expected from two witnesses about the same events. I do not accept their evidence on this issue and Daryl has not displaced the deeming provision.

[82] For the sake of completeness and in terms of possession, Daryl had knowledge of the firearms and ammunition that were in the bedroom. I find that he intended to exercise control and did in fact exercise control over them. Daryl is the owner of the home. He and Marie were inside the room with the firearms and ammunitions. As discussed earlier, I do not accept his evidence that he had no access to the bedroom and had to ‘faanoi’ Pelepesite for use of the bedroom. I do not find his or Pelepesite’s evidence on this issue to be reliable or realistic.

Marie Fanueli

[83] Marie is charged as a party to the 6 charges. Prosecution must therefore prove that Marie as alleged joint possessor has both knowledge of Daryl’s possession and an intention to exercise custody of or control over the items in question in conjunction with Daryl.

[84] I accept that Marie is Daryl’s girlfriend and has on 2-3 occasions been to his house, namely this bedroom to see Daryl. However there is no evidence which satisfies me that she had an intention to exercise custody of or control of either the narcotics, utensils, firearms or ammunitions. She is by no means a regular visitor to Daryl’s house, having been there about 2-3 times in 3 months. She happened to be in the bedroom with Daryl on the evening of the Police search. She may have been aware of these items, but that is not enough. As the Court of Appeal stated in R v Iese CA188-03,

6 November 2003, “Where one party has immediate physical control and custody of the product and another person is charged with joint possession, the Crown must prove clearly that the alleged joint possessor has both knowledge of the other’s possession and an intention to exercise custody of or control over the items in question, in conjunction with the other”.

[85] Inspector Paul gave evidence that Marie was arrested for the mere fact that she was present at Daryl’s home at the time of the police search. He admitted that apart from this, there was no other evidence against Marie.

[86] Prosecution has not offered any evidence, apart from Marie being at Daryl’s home, to prove she had any physical or mental links to the narcotics, utensils, firearms or ammunitions.

[87] I find that Prosecution has not proved beyond reasonable doubt any of the 6 charges against Marie.

Result

[88] For the foregoing reasons, I am satisfied beyond reasonable doubt that the Daryl was in possession of the narcotics, utensils, firearms and ammunitions, being the subject of the 6 charges against him.

[89] I am not satisfied beyond reasonable doubt that Marie was in possession of the narcotics, utensils, firearms or ammunition. All charges against her are dismissed.

[90] Daryl will be sentenced on 14 October 2022 at 12.30pm. A pre-sentence report is ordered. Bail will continue until the date of sentencing.

JUSTICE TUALA-WARREN