SUPREME COURT OF SAMOA
Police v Posala [2016] WSSC 146

Case name: 	Police v Posala	
		
Citation: 	[2016] WSSC 146	
		
Decision date: 	27 June 2016	
		
Parties: 	POLICE and FERRARI WILLIAMS FRANCIS POSALA, male of Ululoloa and Lalovaea (Accused)	
		
Hearing date(s): 	16 June 2016	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:		
		
Order:	•	The no case to answer submission is upheld and all three charges against the accused are dismissed.	
		
Representation: 	O. Tagaloa for Prosecution
R. Schuster for accused	
		
Catchwords: 	Narcotics – possession – utensils – methamphetamine – marijuana – no case to answer – mens rea 	
		
Words and phrases:		
		
Legislation cited:	Narcotics Act 1967 ss. 7; 18(a); 18; 13(b)	
		
Cases cited:	Police v Toamua [2015] WSSC 50 (19 May 2015) 
R v Galbraith (1981) 73 Cr App R 124
Police v Ah Sui [1999] WSSC 37 
Police v Senio [2000] WSSC 7
Police v Pouvi [2000] WSSC 43
Police v Meli [2000] WSSC 56 
Police v Nauer [2007] WSSC 39
Police v Samau [2010] WSSC 106
Attorney General v Kolio [2008] WSCA 7
Attorney General v Taioalo [2010] WSCA 3
Attorney General v Tavui [2014] WSCA 3
R v Galbraith (1981) 73 Cr App R 124
AG v Vai [2008] WSCA 10
Police v Chan Chui-Judgment [2007] WSSC (25 September 2007)
R v Cox [1990] 2 NZLR 275	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FERRARI WILLIAMS FRANCIS POSALA male of Ululoloa and Lalovaea
Accused

Counsel:
O. Tagaloa for Prosecution
R. Schuster for accused

Submissions: 17 June 2016

Ruling: 20 June 2016

Reasons for Ruling: 27 June 2016

REASONS FOR RULING OF TUALA-WARREN J IN RELATION TO NO CASE TO ANSWER
Introduction
1.	The accused was charged with three offences under the Narcotics Act 1967 as follows; 
a)	Possession of methamphetamine (s. 7 and 18(a));
b)	Possession of loose marijuana leaves (ss. 7 and 18); and
c)	Possession of a utensil for the purpose of the commission of an offence (s 13(b)).
2.	The accused pleaded not guilty to the charges. The trial proceeded with assessors.
3.	At the end of the Prosecution evidence, and in the absence of assessors, defence counsel made a submission of ‘no case to answer’ in respect of all three charges against the accused.
4.	This Court ruled that the application succeeds, and dismissed all three charges against the accused. The assessors were discharged. 
5.	My reasons for that ruling now follow.
Evidence
6.	The prosecution called a total of eight witnesses.  Two are scientists who tested the substances and five are police officers who were part of the search team.  The last witness was Panama Tevaga (“Panama”), a co accused who lived together with the accused at the time.  The charges against that co accused have been determined by the Court.
7.	The prosecution evidence is that in the early hours on 22 August 2015, the accused returned home in a car and was met by Police outside a flat in which he lived within the Craig compound at Ulululoa. 
8.	Police took him inside and conducted a warrantless search of the flat. (The legality of that search was the subject of a preliminary application by the defence.  I ruled that the search was lawful.)
9.	The occupants of the flat that morning were Panama and his wife, and Panama’s sister and her husband. The accused also lived in the flat.
10.	During the search, Police found a quantity of methamphetamine and loose marijuana leaves in a bag inside a room.
11.	The bag belonged to Panama.  The methamphetamine and loose marijuana leaves in the bag also belonged to him.  The room in which the bag was found was Panama’s.  He sleeps in the room.  He had the only key, and only he had access to the room.
12.	Police also found a utensil used to smoke marijuana in the kitchen pantry. The utensil was made by Panama and it belonged to him.
13.	In his evidence, Panama also mentions briefly that sometimes, he used the utensil to smoke marijuana with the accused.
Submissions by the Defence
14.	Defence submits that there is no evidence of possession by the accused of the methamphetamine and loose marijuana leaves. 
15.	In relation to his alleged possession of the utensil, defence relies on Panama’s evidence under cross examination that he owns the utensil; that he made the utensil himself; that he was last person to have used the utensil, and the residue found in it and confirmed to be marijuana was from his last use of the utensil.
16.	Defence also submits that the only clear evidence offered is Panama’s ownership of the utensil, and in the absence of evidence to the contrary, possession is deemed ownership.
17.	On that basis, defence submits that there is no case to answer by the accused in relation to possession of the utensil.
Submissions by the Prosecution
18.	Prosecution concedes that there is no evidence that the accused was in possession of the methamphetamine and loose marijuana leaves.
19.	However, in respect of the possession of the utensil charge, Counsel for the Prosecution relies on three parts of the evidence to submit that there is a case to answer.  The first is the accused and Panama lived together in the same house where the utensil was found.  Secondly, the utensil was found in the kitchen pantry which is used by anyone, and thirdly Panama sometimes used the utensil to smoke marijuana with the accused. 
20.	Prosecution submits that this shows that the accused had knowledge of the drugs and the utensil. He used the utensil on his own volition and intended to exercise control over it.
21.	Prosecution further submits that the accused is charged with possession of the utensil, and not of the residue found in the utensil.
Law
No case to answer
22.	This Court in Police v Toamua [2015] WSSC 50 (19 May 2015) set out the approach adopted and applied by this Court to a submission of no case to answer in a trial before a panel of assessors, taken from the  judgment of the English Court of Appeal in R v Galbraith (1981) 73 Cr App R 124. Police v Ah Sui[1999] WSSC 37; Police v Senio[2000] WSSC 7; Police v Pouvi[2000] WSSC 43; Police v Meli [2000] WSSC 56; Police v Nauer[2007] WSSC 39; Police v Samau[2010] WSSC 106.
23.	The Court of Appeal had applied the same approach to a submission of no case to answer in a trial before a panel of assessors in Attorney General v Kolio[2008] WSCA 7, paras 24, 25; Attorney General v Taioalo[2010] WSCA 3, para 4; and Attorney General v Tavui[2014] WSCA 3, para [24].
24.	In R v Galbraith (1981) 73 Cr App R 124, p. 127 Lord Lane CJ said:
“How then should a Judge approach a submission of no case? 
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence. 
(a) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case. 
(b) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge”.
Narcotics Act 1967 section 13 (b)
25.	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.  
Possession 
26.	Possession has two elements. This was referred to in the case of Police v Chan Chui-Judgment [2007] WSSC (25 September 2007) in which this Court 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 and 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 utensil (in this case) is in his possession (often inferred or presumed) and the intention to exercise possession.
Discussion
Possession of Methamphetamine and Possession of loose marijuana leaves (S2778/15 & S2776/15)
27.	In relation to the charges of possession of methamphetamine and possession of loose marijuana leaves respectively, the prosecution is required to prove:
a)	That on 22 August 2015, the accused had actual or potential physical custody and control of the substances in the charge; and
b)	That he had knowledge of the said substances. 
28.	In respect of the first ingredient, and apart from the evidence of the police search, the only other evidence by the prosecution is that of Panama, who confirms that he owned the bag within which the methamphetamine and loose marijuana leaves were found.
29.	The room within which the bag was found was Panama’s room. He sleeps in that room. He puts his belongings into that room. He had the only key to the room and the room could not be accessed by anyone except him. 
30.	There is no evidence that the accused was in possession of methamphetamine and loose marijuana leaves.  This was rightly conceded by the Prosecution.
31.	I therefore have no difficulty finding that there is no case to answer in respect of these two charges.
Possession of a Utensil for the purpose of committing an offence ( S2777/15)
32.	In relation to the charge of being in possession of a utensil, Prosecution is required to prove in this case:
a)	That on 22 August 2015, the accused had in his possession a utensil, (namely one plastic pipe and one small glass bottle with green plastic pipe attached to it); and
b)	That the accused’s possession of the utensil was for the purpose of committing an offence against the Narcotics Act 1967.
33.	In relation to the first ingredient, that on 22 August 2015, the accused had in his possession the utensil, Prosecution rely on the following evidence:
a)	the accused and Panama live together in the same flat where the utensil was found;
b)	the utensil was found in the kitchen pantry which is accessed and used by anyone; and
c)	Panama sometimes used the utensil to smoke marijuana with the accused. 
34.	I have carefully considered that evidence and I find that there are inherent weaknesses and vagueness in the evidence of the accused living together with Panama, and of the utensil being found in the kitchen pantry, for the prosecution to rely in proving ‘possession’ against the accused.
35.	Firstly, and quite apart from Panama’s evidence that he owned the utensil and had made it himself, the accused was not the only occupant of the flat.  In fact, he was one of 5 people who lived in the same flat.
36.	Secondly, the kitchen pantry, as prosecution argues is accessible and used by anyone.  Again, as the accused was just one of the flat’s 5 occupants, it is all the more reason that that evidence becomes too vague, uncertain and unsafe from which to infer possession on the part of the accused.
37.	Arguably, Panama’s brief reference in his evidence that he and the accused sometimes used the utensil to smoke marijuana might be evidence of the accused having possessed the utensil then. But that evidence completely lacks specificity as to date and time.  More significantly, it does not connect that instance of alleged possession to the “22 August 2015”, being the date of the search and alleged offending by the accused.
38.	The date of the offending (22 August 2015) is a material fact that the prosecution is required to prove under the first step (possession), and there is absolutely no evidence that it was on that date that the instance to which Panama referred occurred.
39.	I find that evidence inherently weak, vague and very unsatisfactory from which to infer possession of the utensil on the part of the accused on the 22 August 2015 as charged.
40.	Taken at its highest, the prosecution evidence about the accused being one of the occupants of the flat; the utensil being found in the kitchen pantry which was accessible by anyone, and of Panama and the accused sometimes using the utensil to smoke marijuana, considered on their own and in totality, is such that a jury properly directed could not properly convict on it.
41.	Having found that the evidence in respect of the first ingredient (that on 22 August 2015, the accused was found in possession of the utensil) is inherently weak, vague and very unsatisfactory that a jury properly directed could not properly convict on it, I need not consider the second step under section 13(b) Narcotics Act 1967.
Result
42.	The no case to answer submission is upheld and all three charges against the accused are dismissed.

JUSTICE TUALA-WARREN