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Police v Aloese [2009] WSSC 116 (13 November 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUA ALOESE,
male of Faatoia
Defendant

Counsels: Mr F. Lagaaia for the prosecution
Defendant unrepresented

Hearing: 13 November 2009
Decision: 13 November 2009

ORAL DECISION OF NELSON J.

The defendant is charged that on 11th July 2008 at Faatoia he was in possession of 52 seeds of marijuana contrary to the Narcotics Act 1967. Police evidence is that on instructions from their superior officer a search was carried out of the defendants property at Faatoia the morning of 11 July. Nothing was found in the houses or on the land of the defendant and his family but while the police were there, the defendant arrived driving what he said to be I think a Ford Taurus vehicle that he had bought from a man named Richard in March 2008. He spoke to the police and it is alleged that during that conversation he gave permission for the vehicle to be searched. The search was conducted by Constable Taualai Luuga under the supervision of Sergeant Pa’ipa’i Pa’ipa’i who was in charge of the search party. The constable found what appeared to be marijuana seeds scattered around the front seat of the vehicle. The defendant was shown these seeds and advised that the car would be brought to the station for a more thorough examination.

At the station according to the deposition of Constable Efo Moalele who has since left the jurisdiction, a further search was undertaken of the vehicle and she discovered the 52 seeds that the defendant is charged with. Her evidence was "na ou sailia ai loa totonu o lenei taavale i le pito i luma ma le keli ma sa ou mauaina ai ni fatu mariuana e tusa lona aofaiga ma le 52." She prepared a sample of the seeds, duly labelled it and sent it to the Alafua Drug Testing Laboratory where it was examined by drug analyst Faumuina Falaniko. He confirmed that the seeds were from the cannabis sativa L plant also known as marijuana, a prohibited narcotic under the Narcotics Act 1967.

The defendant was also brought to the police station on the 11 July 2008 and was interviewed by Constable Luuga. In his cautioned statement he admits to smoking marijuana with a friend in his car the previous night and thinks that the seeds fell out when his friend was rolling their joints. He also says that the seeds and marijuana belong to his friend. In his evidence given before the court this morning he disputed that he signed the last page of the cautioned statement and further says that the last line on page two thereof was not in the document when he signed page two.

However I am satisfied that he signed all pages of the statement. He does not strike me as an unintelligent fellow or as someone who would sign something incriminating him if it were untrue or incorrect. As to the last line of page two, that adds little to the admission that he makes in the statement that he smoked marijuana with his friend the previous night in his car.

His suggestion that the police planted the seeds or that the seeds may have been in the vehicle from the original owner of the car has no foundation and cannot be accepted. I am also satisfied that his four hour wait in the police station prior to interview does not negate the voluntary nature of the statement. There was no evidence or suggestion that he was coerced or in any way forced into making a statement. The evidence is his rights were properly explained to him and he has not queried that in his questioning of the police witnesses or in his testimony.

The only real question that I have to give some consideration to is the admissibility of the search evidence because it appears it was conducted without a warrant and was a search based on section 14A of the Narcotics Act 1967. That section empowers the police to search without a warrant where "there is no time to apply for a search warrant." It is a special power given to the police and as explained to counsel for the prosecution, it is in my view a power to be used in extreme circumstances and with great circumspection. After all it does not take much time to walk from the police station to the court office and urgently obtain a search warrant from a judge. There is always one around and available during working hours. I have heard nothing which justified the warrantless search in this case and there was no evidence of circumstances justifying an immediate police search of the defendants property was necessary. Neither was there any evidence as to why there was no time to apply for a search warrant.

The only basis upon which the search evidence can be admitted is if the court accepts the testimony that firstly the defendants father and secondly the defendant himself consented to a search of the property and to a search of the vehicle. But it appears to me that such consent cannot be said to be informed consent. That is, given freely and voluntarily and on the clear understanding that whatever is uncovered in the search can be used in criminal proceedings against the person giving the consent and given on the clear understanding that the person giving the consent has a right to say to the police no, you cannot search my property. I also have some doubts that the defendant would consent to a police search of a vehicle that he knew had marijuana in it unless he did not realize that the seeds had fallen out the night before when they were indulging in their marijuana smoking adventure. I note Constable Moalele’s evidence some seeds were found in the boot. All in all I am hesitant to accept such consent as a basis for rendering the search evidence admissible. For these brief reasons the vehicle search is accordingly declared unlawful and the evidence obtained as a result thereof was illegally obtained and will be rejected by the court.

Had that been all the evidence adduced by the police that would have been the end of the matter and this case. However there is further evidence in this case namely the defendants own admission made to the interviewing officer at the police station. That is admissible and there is no better evidence when properly proved than the defendants own words. It is sufficient to convict a defendant on a charge. The defendant is accordingly found guilty as charged and will be remanded on the same bail conditions to 14 December 2009 for probation report and for sentence.

JUSTICE NELSON