supreme court of samoa
Police v Tualagi & Anor [2012] WSSC 121

Case name: Police v Tevita Tualagi and Moeana Jacinta Sialei
Citation: [2012] WSSC 121
Decision date: 9 October 2012  
Parties: police (prosecution) and tevita tualagi male of Togafuafua and Toamua and moeana jacinta sialei female of Faleatiu and Vaitele-tai
Hearing date(s): 8 and 9 October 2012
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
E Niumata for prosecution
M V Peteru for defendants
Catchwords: 
Words and phrases:
Legislation cited:
Narcotics Act 1967, ss.7, 18
Cases cited:
Chamberlain v R (1983) 153 CLR
Failsauvale v Police [2010] WSCA 8
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
tevita tualagi male of Togafuafua and Toamua and moeana jacinta sialei female of Faleatiu and Vaitele-tai 
Defendant

Counsel:	E Niumata for prosecution
M V Peteru for defendants
Hearing:	8 and 9 October 2012
Reasons:	9 October 2012
Charge:	Possession of Narcotics (x1)

oral reasons OF slicer J
1.	On 16 January, four defendants were charged by Information S22 of 2011, with the first defendant Tekauita Lautoka (“Tekauita”) having the charge against her dismissed, and the third defendant Laupama Soloi (“Laupama”) pleaded guilty and was sentenced to a term of imprisonment in excess of 3 years.  This case involves the second and fourth defendants Tevita Tualagi (“Tevita”) and Moeana Jacinta Sialei (“Moeana”).  Moeana was the occupier of the house which was owned either by custom or freehold title by her uncle (she did not say).
2.	The case brought by the prosecution is circumstantial in nature and the Court refers to decisions such as Chamberlain of the High Court of Australia and Filipaina for the Court of Appeal for the State of Samoa.  The allegation against Tevita concerns sections 7 and 18 and the Narcotics Act 1967 (“the Act”).  Section 7 is not particularized in the Information but the Court presumes that the charge related to section 7 (a) which is that he was knowingly in possession of a narcotic.  The case of ‘knowingly’ is circumstantial only.  The prosecution had issued a Summons to Witness against the first defendant Tekauita who failed to appear as a witness and a warrant was issued for her arrest; and the Court points out to the prosecution that that warrant stands and stays in place irrespective of the outcome of these proceedings.
3.	Tevita was interviewed under a caution statement and made no admissions.  He is, in fact, the de facto partner of Moeana but appears to have a second residence and was but a casual visitor or partner to the fourth defendant.  The case against him is solely circumstantial.  He was certainly present at the time of the search but the places of some of the marijuana were, in fact, in the room of Laupama, and the Court is required in a circumstantial case of this nature to consider any hypothesis reasonably consistent with innocence before it may convict.  The remaining marijuana was found hidden on the roof of a container which was inside the house and was used as Moeana’s bedroom.
4.	The Court has a suspicion and a high suspicion that Tevita was involved in the commission of the crime, but the Court is unable to turn that suspicion into a finding that the Court is satisfied beyond reasonable belief, to the requisite degree that the prosecution has proved his guilt beyond reasonable doubt.  The Court agrees with the prosecution case that there is good reason to suspect that he was involved and knew of the possession or the presence of marijuana.  But two of the prime exhibits were located or found by police on the top of a container around which the house was built or which formed part of the house or room and not inside the room in which he was sleeping.  The other marijuana was found in the room of Laupama and although the Court suspects that the second defendant Tevita was involved, it is unable to translate that suspicion into a finding of guilt on the basis of proof beyond reasonable doubt.
5.	The case against Moeana is slightly different.  She was the lawful occupier of the premise and permitted Laupama, her cousin to reside in the house with her, and there is merit in the prosecution’s argument that she was aware of the presence of marijuana through smell, of its presence, but that itself amounts to reason for suspicion but the prosecution has the burden that she was knowingly in possession and does not think any other part of section 7 is engaged, except for her statement made in a caution statement between an officer on 15 January 2011.  In that statement she was given the following caution:
“You have the right not to say anything unless you wish to do so but whatever you do say will be recorded in writing and given as evidence.  Do you understand this right that I have just explained to you?
Answer: Yes.
Do you want to make a statement or not?
Answer: No…”
6.	But then accepting the honesty of the officer Efo Moalele that those words were used and the defendant does not deny making it, the question becomes whether the nuance or meaning of her answer is sufficient to prove her guilt.  ‘Do you want to make a statement or not?’ and her answer is ‘no’ she does not wish to.  It may be that the Court might have disallowed the next volunteered statement as being contrary to the common law position.  But in any event, the evidence has gone in with the addition of the words ‘…but I agreed about marijuana that was found in my house it was mine’ which is my English translation.  The Registrar was asked to translate the original and he translated it in a different way and this translation was ‘I own them’.  She said in her evidence that the statement ‘I owned them that I was uncertain and I wanted to see my children’.  The Court can also read into that translation that the answer, in context, could mean that: I was the occupier of the house; I owned the house through my uncle, be it freehold title or custom, lease or agreement – and that she was responsible for its presence.
7.	In either interpretation, on her case that she made the answer to be quickly reunited with her children or on the Court’s doubt about whether she was admitting possession because of ownership, matters little.  The Court is not prepared to convict her on what the Court regards as either an ambiguous answer or an answer given to ensure her quick reuniting with her 3 month old child.
8.	Accordingly, the Court would treat the case against her not in the same way as Tevita; the Court has strong suspicions about Tevita which does not amount to proof beyond reasonable doubt.  The Court has a lesser suspicion that Moeana knew of the presence of narcotics within the house but was subject to the control of Laupama and Tevita, so it is not satisfied that she controlled, in the sense that she was in possession of narcotics.  The prosecution may argue that section 23 applies that she was guilty as an aider or abetter; the Court is not prepared to use that section to get around the problem of a circumstantial case, so accordingly, with reluctance, the Court dismisses the Information S22/11 against Tevita Tualagi and records a verdict of not guilty.  The Court applying the same test but with less suspicion of active involvement but which falls short of proof beyond reasonable doubt, it also returns a verdict of acquittal against Moeana Jacinta Sialei.
9.	The Court should also point out that through no fault of the prosecution, the inability to call as a witness the original first named defendant, Tekauita Lautoka was a crucial witness to its case and absent that evidence, the Court is left with but a circumstantial case and must act in accordance with law and acquit both defendants.

…………………………
    (JUSTICE SLICER)