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Police v Chan Chui - Written Ruling [2007] WSSC 72 (18 September 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

PATRICK NICKY CHAN CHUI
of Ululoloa.
Accused

Counsel: P Chang and M T Lui for prosecution
T R S Toailoa for accused

Hearing: 21, 22, 23 August 2007

Conclusions: 10 September 2007

Reasons: 18 September 2007

RULING OF SAPOLU CJ

Introduction

The accused is charged with three informations laid under the Narcotics Act 1967, one information laid under the Arms Ordinance 1960, and two informations laid under the Crimes Ordinance 1961. These informations charge the accused with (a) knowingly being in possession of narcotics, namely, five small plastic packets of dried marijuana leaves and three marijuana joints pursuant to s.7 of the Narcotics Act 1967, (b) being in possession of a glass pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics, pursuant to s.13(b), (c) being in possession of a copper pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics, pursuant to s.13(b) of the Narcotics Act 1967, (d) being in possession of fifty four (54) .22 live ammunitions without lawful, proper and sufficient purpose pursuant to s.13 of the Arms Ordinance 1960, (e) verbally making a threat to do bodily harm pursuant to s.82 of the Crimes Ordinance 1961, and (f) verbally making a threat to do bodily harm pursuant to s.82 of the Crimes Ordinance 1961. At the end of the evidence for the prosecution application was made by counsel for the prosecution to amend information S67/06 to include marijuana seeds. That application was denied and I have orally given my reasons for that ruling.

When the prosecution had formally closed its case, no evidence had been tendered to establish the two informations charging the accused with verbally making a threat to do bodily harm. Those informations were therefore dismissed. Counsel for the accused then submitted that on the evidence adduced by the prosecution there was no case to answer in respect of the remaining informations. I will now deal with that submission in relation to each of the remaining informations in turn.

Information S67/06 charging possession of narcotics

Information S67/06 charges the accused with being knowingly in possession of narcotics, namely, five small packets of dried marijuana leaves and three marijuana joints pursuant to s.7 of the Narcotics Act 1967. Counsel for the accused submitted that there is no evidence to show that the substances contained in the five small plastic packets claimed by the prosecution to be dried marijuana leaves contained cannabis which is a narcotic in terms of the Act. Furthermore, counsel for the accused submitted that the three marijuana joints with which the accused has been charged were not found by the police in the person of the accused. This implies that the accused was not in possession of the three marijuana joints. Counsel further submitted that the accused had denied knowledge of those marijuana joints to the police. Furthermore, there is no evidence to show that the video case in which the packets of marijuana leaves and the three marijuana joints which were found by the police belonged to the accused. It was also pointed out that there is a conflict in the evidence for the prosecution as to whether the samples which were sent to the Institute of Environmental Science and Research Ltd (ESR) in New Zealand to be scientifically tested for cannabis were from the marijuana joints.

The evidence for the prosecution, as far as relevant, for the purpose of the no case to answer submission in relation to information S67/06, is that on early Monday morning, 6 February 2006, a police team led by inspector Fatu Pula (inspector Fatu) and armed with a search warrant, searched the house of the accused at Ululoloa which has three bedrooms and a living room. The accused was present in his house while it was being searched by the police. When some of the police officers searched one of the bedrooms which the accused said was that of his children, a copper pipe was found on the bed under the mattress.

The police then searched another bedroom which the accused told the police was his bedroom. This bedroom is self-contained in that it has its own bathroom. The police found in the cistern or water tank of the toilet in the accused’s bedroom a glass pipe, or glass tube as it was referred to in the evidence of some of the police witnesses. In the sleeping section of the accused’s bedroom was a television set placed on a table or shelf as it was interchangeably referred to in the evidence. Below the television were about 20-40 video cases. Constable Masofa Falefatu (constable Masofa) was then instructed by inspector Fatu to search those video cases and constable Masofa searched each video case one by one. In one of the video cases, which was unusually light compared to the other video cases, constable Masofa found five small plastic packets of dried leaves and three joints. The police also found fifty four .22 live ammunitions inside one of the drawers of the dressing table that was inside the accused’s bedroom.

Constable Masofa testified that when he discovered the three small plastic packets of dried leaves and the three joints inside one of the video cases, he asked the accused who was also inside his bedroom at that time as to what were those substances and the accused replied they were marijuana. Constable Masofa then asked the accused whether they belonged to him and the accused replied no. Inspector Fatu in his evidence said that as far as he can recall, when the packets of leaves and the three joints were found and shown the accused, the accused’s reaction was "E le ni a’u mea" (They were not mine). The substances were then given by constable Masofa to sergeant Taalo Leota (sergeant Taalo) who was the police exhibits officer.

Sergeant Taalo brought those substances with him together with the other exhibits found in the accused’s house when the police returned to the station in Apia. At the station, sergeant Taalo gave those substances together with the other exhibits to sergeant Samuelu Afamasaga (sergeant Samuelu) who was to interview the accused. Sergeant Samuelu testified that when he started to interview the accused he did not want to make a statement and that was the end of the interview. Sergeant Samuelu then handed over the five small plastic packets of dried leaves and the three joints together with the other exhibits to sergeant Herbert Aati (sergeat Herbert) who was then a member of the police drugs squad.

According to the evidence of sergeant Herbert, he labelled all the exhibits as "Police v Patrick Nicky Chan Chui, EXHDS 2006-39" and locked them away in the police exhibits room awaiting an import licence from New Zealand for the exhibits to be sent to the ESR for scientific analysis. On 22 March 2006, sergeant Herbert prepared a sample from each of the five plastic packets containing dried leaves and placed them in an envelope labelled "Police v Patrick Nicky Chan Chui, EXHDS/2006-39A". The three joints were placed in a separate envelope labelled "Police v Patrick Nicky Chan Chui, EXHDS/2006-39B". The glass pipe and copper pipe were placed in one envelope and labelled "Police v Patrick Nicky Chan Chui, EXHDS/2006-39C (1) and 39 (C) (2)". After the exhibits were all labelled they were sent the same day, 22 March 2006, by registered mail to the ESR in New Zealand for scientific analysis.

The report prepared by the ESR forensic scientist who analysed the samples alleged by the prosecution to have been taken from the five plastic packets containing dried leaves states that "the plant material could not be identified". In other words, there is no scientific evidence that the samples taken from the plastic packets of dried leaves contained cannabis which is a narcotic in terms of s.2 (1) of the Narcotics Act 1967. On this basis alone, I conclude that there is no case to answer in respect of the allegation in information S67/06 that the accused was in possession of narcotics, namely, five small plastic packets of dried marijuana leaves. That allegation is therefore dismissed.

Before leaving the first allegation, I wish to refer to the two cases provided by counsel for the prosecution which show that scientific evidence is not necessary in every case to prove beyond reasonable doubt that a substance is cannabis. The first of these cases is R v MacDonald (1995) (CA 55/95); unreported judgment of the New Zealand Court of Appeal delivered on 6 July 1995). In that case, two young thieves testified for the prosecution at a deposition hearing that the quantity of substances they stole from the appellant was cannabis. The appellant was charged, inter alia, with possession of a controlled drug, namely, a cannabis plant, under the Misuse of Drugs Act 1975 (NZ) and for assaulting the two young thieves with intent to injure. At the deposition hearing, the two young men told the Court that the substance they stole was cannabis. One of them said that he had seen cannabis on more than 20 previous occasions while the other said that he had seen cannabis "quite a few times – more than 15" and he had used cannabis himself. Counsel for the appellant submitted that the evidence of the two young men identifying the substance as cannabis was inadmissible because they were not qualified to give opinion evidence. In delivering the judgment of the New Zealand Court of Appeal, Williamson J said:

" Expert evidence to establish that a substance or plant material is a controlled drug under the Misuse of Drugs Act 1975 is usually given by a scientist. Identification of such a substance, however, need not always be by way of chemical analysis. It may be proved by a combination of circumstances including the visual or other sensory observations of witnesses. In a number of cases lay persons with sufficient experience in relation to cannabis have given evidence as to the nature of a substance which they saw or dealt with. The position is clearly set out in the case of R v Cruse [1989] NZCA 77; [1989] 2 NZLR 279 at 285 as follows:

" ‘In the Misuse of Drugs Act 1975, Third Schedule, cannabis plant (whether fresh, dried or otherwise) is defined as any part of any plant of the genus Cannabis except a part from which all the resin has been extracted. Evidence of scientific analysis is of course recognised as admissible, but in the present instance there was and could be none, because no cannabis was found by the police. Mr Williams also concedes that evidence of lay persons who are sufficiently experienced with cannabis may be adequate, and he includes in that concession evidence of police officers having had experience of cases concerning the drug; but he maintains that in the absence of what he calls ‘lay expert evidence’, one cannot rely on an admission or, as we understand the argument, on circumstantial evidence which might be thought in common sense to support an inference of cannabis. Counsel went as far as to put it that as a matter of horse sense the substance in this case was cannabis but that the Judge was not entitled to allow the jury to reach that conclusion. These submissions probably need only to be stated to carry their own rejection.

" ‘Sundry cases were cited by counsel... We have reviewed these cases but we can find nothing in them that persuades us that a finding that material was cannabis beyond reasonable doubt may not be made on any evidence which as a matter of fact in the particular case is capable of sustaining that conclusion. The Courts have accepted various kinds of evidence short of scientific analysis as capable of proving beyond reasonable doubt that a particular substance was the controlled drug. We can see no justification for any judicial attempt to limit what may suffice. It must always be a question of fact in the particular case. There is no logical reason why circumstantial evidence may not be sufficient, although obviously always care must be taken to ensure that it is capable of pointing unequivocally to the nature of the substance’ "

Further on Williamson J said:

" Ultimately a jury must carefully consider all of the evidence relating to the nature of the substance, including the evidence of these two witnesses before arriving at a conclusion as to whether or not the material has been proved beyond reasonable doubt to be cannabis.

" In our view the two witnesses in this case are entitled to give evidence to the effect that the substance which they stole had the appearance of cannabis which they had seen or used on a number of previous occasions. Indeed, when the evidence is heard in full and the entire ambit of the witness’s experience with cannabis is elicited, the witness may also be able to go further and state positively that in their opinion this substance was cannabis".

The second case cited by counsel for the prosecution is R v Hill (1993) 96 Cr App R 456. The effect of what was said in that case, as it appears from the headnote, is that whilst scientific evidence was not required in every case to identify a drug, the prosecution must still establish the identity of the drug beyond reasonable doubt.

I can understand the importance to the police of the issue now raised by counsel for the prosecution. Since the enactment of the Narcotics Act 1967, it has been the practice of the police in every narcotic prosecution where a not guilty plea has been entered by the accused to send samples of the suspected narcotic substances to New Zealand for scientific analysis and confirmation. This costs money and sometimes it involves a lot of inconvenience to the police. But there are some police officers who have had many years of experience in narcotics or drugs investigations. The question is whether the evidence of such police officers should be admissible for the purpose of identifying a substance as a narcotic in a narcotic prosecution. If so, what sort of circumstances may such evidence be admissible and what weight should be accorded to it.

Without intending any discourtesy to counsel for the prosecution, who have consistently displayed a high degree of industry in their prosecuting duties, I have decided to reserve my position on R v MacDonald (1995) (CA 55/95) and R v Hill (1993) 96 Cr App R 456 for further consideration in another case when the Court has had the benefit of further submissions from counsel. For the present case, however, I am of the view that even if I were to apply the principles stated in R v MacDonald, I would still arrive at the conclusion that there is no case to answer in respect of the five small plastic packets of alleged dried marijuana leaves. The report from the ESR forensic scientist who analysed the samples from those plastic packets is that the plant material in them could not be identified. The evidence given by the police officers called as witnesses by the prosecution were rather general and not sufficiently specific on the question of the identity of the substances they found in the accused’s house. It was clear from the evidence that the police witnesses were not focusing their attention on the question of identity when giving their evidence. Perhaps this was because the police are now so used to the practice of leaving the issue of identification for the purpose of proof in a narcotic prosecution to the forensic scientists in New Zealand. The quality of the evidence regarding the nature and extent of the experience of the police witnesses in narcotic matters was also not sufficiently detailed.

I turn now to the second allegation in information S67/06 that the accused was in possession of narcotics, namely, three marijuana joints. The report from the ESR forensic scientist the three joints states that the ESR in Auckland received a sealed envelope from "Chief Inspector M Matafeo". This sealed envelope contained, inter alia, a sealed standard drugs envelope marked in part "Police v Patrick Nicky Chan Chui and EXHDS/2006-39B". The report from the forensic scientist who analysed the joints (cigarettes as stated in the report) also states that two of the joints contained not only leaves of the cannabis plant of the genus cannabis sativa L but also cocaine. The third joint was found to contain only leaves of the cannabis plant of the genus cannabis sativa L. There is no mention of cocaine in relation to the third joint.

There are four grounds raised in support of the no case to answer submission in relation to the second allegation concerning possession of the three joints of marijuana in information S67/06. For clarity, these grounds are: (a) the joints were not found in the person of the accused, (b) the accused had denied knowledge of the joints to the police, (c) there is no evidence that the video case in which the joints were found belonged to the accused, and (d) there is a conflict in the prosecution’s evidence which is the evidence of sergeant Herbert and the report from the ESR forensic scientist which states that the relevant envelope was received from Chief inspector M Matafeo, not sergeant Herbert. I will deal with grounds (a), (b) and (c) together and then with ground (d).

As pointed out earlier, the evidence given by sergeant Masofa who found the packets of dried leaves and the three joints in a video case below the television in the accused’s bedroom was that when those substances were shown to the accused inside his bedroom and the accused was asked what they were, he replied they were marijuana. When sergeant Masofa further asked the accused whether they belonged to him, the accused replied no. The evidence given by inspector Fatu was that when he showed the accused the substances, which appeared to be marijuana or narcotics, found by sergeant Masofa in the video case, the accused’s reaction was "E le o ni a’u mea" (They are not mine). In other words the accused was denying ownership but not possession of the substances, including the joints, found in the video case inside his bedroom. Ownership and possession are two different concepts.

It must also be pointed out here that there is no evidence that the accused denied knowledge of the existence of the marijuana joints inside his bedroom. What he denied was ownership.

In my view, the fact that the three joints were found in a video case inside the accused’s bedroom gives rise to the presumption or inference that the accused knew of the existence of the joints found in the video case and, in the circumstances, was in possession of the joints. The presumption or inference of knowledge, may, of course, be displaced by evidence to the contrary but there is no such evidence. The response given by the accused when the joints were shown to him inside his bedroom and was asked what they were and he said they were marijuana suggests that the accused was already aware of the existence of the joints inside his bedroom before the joints were found by the police. His response, when further asked, that the substances "are not mine" is only a denial of ownership and does not displace the inference of knowledge required of possession. The scientific evidence tendered by the prosecution also shows that two of those joints contained cannabis and cocaine and the third joint contained only cannabis.

A case which is similar to the present case is Police v Emirali [1976] 1 NZLR 286. In that case the appellant was charged with possession of narcotics pursuant to s.6 (1) of the then Narcotics Act 1965 (NZ). At p.289, Mahon J said:

" I come now to three final items. In a bureau drawer in the bedroom of the flat was found exhibit 2 which comprised cigarette papers in which were lodged some particles of cannabis material... Exhibit 4 comprised some further cannabis plant material... along with other debris of an innocent kind, and although I cannot ascertain from the evidence exactly where this exhibit was located, it seems to have been found in the bedroom. Finally, there is that part of exhibit 6 which constituted a metal clip or holder, found on the masterpiece of the lounge of the flat, of a type commonly used for smoking marijuana cigarettes...

" These three exhibits are, I think, in a definite category. Assuming exhibit 4 to have been located in the bedroom of the flat, as I think it was, then all the exhibits were found in places where the occupier would undoubtedly be presumed to be the possessor. Further, I think it clear enough that having regard to the location of these three particular exhibits and to the absence of any evidence to the contrary, guilty knowledge on the part of the appellant could rightly be assumed".

It must, however, be pointed out that simply because there is evidence to the contrary does not necessarily displace the prima facie inference of knowledge of the contents of a container, for instance, a video case or package. The contrary evidence must be capable of acceptance. This was the basis of the decision in Police v Mariota [2003] WSSC 6 where the accused was charged with possession of a marijuana joint which was inside a cigarette packet found by the police in the pocket of the long pants which the accused was wearing. The accused gave an oral out of Court statement to the police in which he denied any knowledge of the contents of the cigarette packet found inside his pocket. In the circumstances of that case, I decided to disbelieve the accused’s out of Court statement given to the police so that it did not displace the prima facie inference of knowledge of the contents of the cigarette packet, which arose from the accused’s actual physical custody of the packet which contained the marijuana joint. The same approach was applied to the facts of Police v Semeatu Siaosi [2007] WSSC 9 by Nelson J. Such an approach is also evident from the decision of the New Zealand Court of Appeal in R v Jones [2007] NZCA 187 where the appellant was appealing a conviction for possession of a controlled drug for the purpose of supply under the Misuse of Drugs Act 1975 (NZ). Chambers J in delivering the judgment of Court in that case said:

" [52] The law is correctly stated in Mathias Misuse of Drugs (1988) at [123]":

‘" When the defendant is in possession of a package, in that he knows of its existence in his physical custody, there is a prima facie inference that he is in possession of its contents: see R v Warner [1969] 2 AC 256. If, though unaware of the contents, he did not open the package at the first opportunity to ascertain what they were, it could be inferred that he was accepting possession of the contents whatever they were, unless he had no right to open the package’.

"[53] We accept it is preferable to explain the concept in terms of an available inference rather than presumption. Of course, any inference or presumption can be rebutted by evidence to the contrary (if accepted)... In the overall context of the summing up, however, we think the Judge made it clear that the presumption or inference as to knowledge of the contents could be displaced by evidence to the contrary, which evidence he laid out for the jury’s consideration.

"[54] Mr Jones’s defence was that he knew the cardboard box contained ‘substances’, but those substances were, he said, BZP. The jury, if they considered that explanation reasonably plausible, would have had to acquit Mr Jones on the basis that the Crown had not proved beyond reasonable doubt that Mr Jones knew a controlled drug was in the cardboard box. The jury, taking into account all the evidence, obviously rejected Mr Jones’s out of Court statement to the effect that the only substance in the cardboard box he knew about was BZP".

It must be apparent from the cases I have referred to, that even if the accused had denied to the police knowledge of the contents of the video case containing the marijuana joints, and not simply their ownership, that would not necessarily have displaced the inference as to knowledge of the contents of the video case found in the accused’s bedroom. The Court would still have to determine whether to accept such an out of Court denial.

In relation to ground (a) of the no case submission, namely, that the marijuana joints were not found in the person of the accused, the answer to that ground is that the fact that those marijuana joints were found inside the accused’s bedroom raises the inference that the accused had knowledge of those substances inside his bedroom and was therefore in possession of them: Police v Emirali [1976] 1 NZLR 286, per Mahon J at p.289. There is also no evidence to the contrary to displace that inference.

In the case of R v Cox [1990] NZCA 13; [1990] 2 NZLR 275 which was concerned with a charge of possession of a controlled drug for the purpose of supply pursuant to the provisions of the Misuse of Drugs Act 1975 (NZ), Hardie Boys J in delivering the judgment of the New Zealand Court of Appeal said at p.278:

" Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substances is in his possession (which is often to be inferred or presumed); and an intention to exercise possession. In the leading case of R v Warner [1969] 2 AC 256, Lord Morris of Borth-y-Gest expressed it this may 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. Whether or not it is appropriate to include this knowledge as part of the mental element of possession in such cases is for present purposes an academic question that need not be explored".

That passage from R v Cox was adopted by Vaai J in Police v Nofoasā Leulua’ialii [2006] WSSC 50. However, note R v Foox [1999] NZCA 281 where Thomas J in delivering the judgment of the New Zealand Court of Appeal said in that case at [29] that the dictun by Hardie Boys J in R v Cox that "a charge of possession of a controlled drug also requires proof of knowledge by the accused that what is was in his possession is a controlled drug; although he need not know its exact nature" does not exclude the possibility that Hardie Boys J was intending to refer to knowledge of the characteristics of a controlled drug rather than knowledge that the substance was in fact a controlled drug under the Act.

Applying the principles stated in the passages I have cited from Police v Emirali [1976] 1 NZLR 286, 289 and R v Cox [1990] NZCA 13; [1990] 2 NZLR 275, 278 to the question of possession in this case, the fact that the marijuana joints were found in a video case inside the accused’s bedroom of his own house shows that the accused was in actual physical custody and control of those substances. The same fact also gives rise to the inference that the accused knew of the existence of those marijuana joints in his bedroom. The accused’s answer when shown the joints inside his bedroom by the police officer who found the joints that they were marijuana substances also suggests that the accused was already aware of the existence of those substances inside his bedroom. There was no evidence to the contrary. Add together actual physical custody or control and the accused’s knowledge of the existence of the marijuana joints inside his bedroom and you have legal possession for the purpose of the charge of possession of a narcotic. There is, of course, scientific evidence adduced by the prosecution that the marijuana joints contained narcotic. I will come back to this scientific evidence shortly.

I turn now to ground (d) of the no case to answer submission. What is alleged in this ground is that there is a conflict between the evidence of sergeant Herbert who labelled the exhibits to be sent to the ESR in New Zealand for scientific analysis and what is contained in a particular part of the report by the ESR forensic scientist who analysed and tested the three joints.

The evidence given by sergeant Herbert was that he labelled the exhibits to be sent to the ESR on 22 March 2006. The three joints were placed in a separate envelope which was labelled "Police v Patrick Nicky Chan Chui, EXHDS/2006-39B". The three joints together with the other labelled exhibits were then sent by registered mail on the same day, 22 March 2006, to the ESR.

The report from the ESR forensic scientist who analysed the three joints states that the ESR laboratory records show that on 29 March 2006 the ESR in Auckland received a sealed envelope from "Chief Inspector M Matafeo". That envelope contained, inter alia, a sealed standard drugs envelope marked in part "Police v Patrick Nicky Chan Chui" and "EXHDS/2006-39B". This standard drugs envelope contained three cigarettes, two of them were found to contain cannabis and cocaine and one was found to contain only cannabis.

The short point of ground (d) is that there is an inconsistency between the evidence of sergeant Herbert that he sent the exhibits to the ESR and what is contained in the report of the ESR forensic scientist that the ESR laboratory records show that the sealed envelope which contained the standard drugs envelope which in turn contained the joints were received from chief inspector M Matafeo. However, there are also a number of similarities and consistencies between the evidence of sergeant Herbert and the report of the ESR forensic scientist. I have considered the whole of the relevant evidence and come to the view that the inconsistency pointed out on behalf of the accused is not sufficient to negate a finding of a case to answer. It is not every inconsistency in the evidence for the prosecution that will result in a no case to answer in a criminal trial. Some inconsistencies in the prosecution’s evidence may lead to that result, and some inconsistencies may not. In this case, I am of the view that the inconsistency is not sufficient to rebut the inference that those joints placed by sergeant Herbert in the envelope which he labelled "Police v Patrick Nicky Chan Chui, EXHDS/2006-39B" and was sent to the ESR on 22 March 2006 was the same three joints received by the ESR in Auckland on 29 March 2006 and analysed by the ESR forensic scientist. The time factor is also relevant. Sergeant Herbert said he sent the exhibited substances on 22 March 2006 and the ESR report states that the ESR received those substances on 29 March 2006.

From the foregoing discussion, I conclude that there is a case to answer in respect of the allegation in information S67/06 relating to possession of narcotics, namely, three marijuana joints.

Information S68/06 charging possession of a glass pipe for the purpose of the commission of an offence against the Act, namely, consumption of narcotics

Information S68/06 charges the accused with possession of an instrument, namely, a glass pipe for the purpose of consumption of narcotics pursuant to s.13 (b) of the Narcotics Act 1967. The submission of no case to answer in relation to information S68/06 was based on two grounds, namely, (a) the prosecution evidence does not adequately explain whether the instrument with which the accused has been charged is a "pipe" in terms of s.13 (b) of the Act, some prosecution witnesses referred to it in their evidence as a tube, and (b) there is a breach in the chain of custody with reference to the report from the ESR forensic scientist.

In respect of ground (a) I must point out that the charging provision which is s.13 (b) of the Act provides:

" Every person commits an offence under this Act who has in his possession any needle, syringe, pipe or other utensil for any such purpose".

The "purpose" referred to s.13 (b) clearly refers to "the purpose of the commission of an offence against this Act" provided in s.13 (a). As it appears from s.13 (b), the word "pipe" is used in that provision. The word "tube" or "flask" used by some of the prosecution witnesses in their evidence do not appear in s.13 (b). Information S68/06 also charges the accused with possession of an instrument, namely, a "glass pipe" for the purpose of the commission of an offence against the Act. Apparently, the person who prepared information S68/06 had in mind the provisions of s.13 (b) which use the word "pipe" because that is essential in order to create an offence in terms of s.13 (b). The use of any other word which is not used in s.13 (b) will not create an offence in terms of that provision unless the instrument with which the accused is charged can be brought within the meaning of the words or "other utensil". But it is obvious from the wording of information S68/06 that the prosecution was not relying on the words or "other utensil". So the prosecution should have focused on the word "pipe" as used in s.13 (b) and information S68/06 and prove that the instrument which the police found in the cistern (water tank) of the toilet in the bathroom of the accused’s bedroom in his own house was a "pipe" and not something else. The point may appear to be trivial at first sight, but it does go to the substance of the offence with which the accused has been charged.

Inspector Fatu who led the police search team who found the instrument in the cistern of the toilet in the bathroom to the accused’s bedroom said in his evidence that the instrument was a flask. Later in his evidence he said it was glass test tube. I am not sure what is meant by flask here. But if it means glass test tube as stated by the witness, then based on my own general experience and in particular my schooldays experience with tested tubes, I cannot see how a test tube can be used for smoking anything. Corporal Masofa in his evidence said of the instrument found by constable Edmond Masoe as a paipa (pipe) which is round with a long tube attached to it. Constable Lorraine Lees (constable Lorraine) in her evidence said that what was found by constable Edmond Masoe in the cistern of the toilet in the bathroom of the accused’s bedroom was not a paipa (pipe) but a glass tube. Constable Faonu’u Nafo’i (constable Faonu’u) in his evidence said that he was one of the police officers who searched the bathroom of the accused’s bedroom and he witnessed constable Edmond Masoe finding a pipe in the cistern (water tank) of the toilet in the accused’s bedroom. A glass pipe was shown by counsel for the prosecution to this witness and he confirmed that is the pipe found by constable Edmond Masoe. Sergeant Taalo, who was the exhibits officer during the search of the accused’s house, said in his evidence that what constable Edmond Masoe gave him was a glass pipe; he does not know what is a test tube. The glass pipe shown by counsel for the prosecution to this witness was confirmed by him as the glass pipe given to him by constable Edmond Masoe. Sergeant Samuelu who was one of the police officers who searched the bathroom of the accused’s bedroom said in his evidence that constable Edmond Masoe lifted off the cover of the cistern of the toilet in the bathroom and found a paipa made of glass. One end of this paipa is normal and has a small hole. The other part of the paipa is a tube. He also said that the Samoan word he uses to describe what was found by constable Edmond Masoe is "paipa". But to him its appropriate English translation is "glass tube". This witness was shown the same object that had been shown by counsel for the prosecution to the other police witnesses and he said that is the paipa that was found in the accused’s bathroom. Sergeant Herbert who labelled the exhibits sent to the ESR in New Zealand was also shown the same object that had been shown to the other police witnesses. He said that is the glass tube or pipe handed to him by sergeant Samuelu and which he sent to New Zealand for analysis. The report from the ESR forensic scientist refers to a glass pipe.

The reference to a flask by one prosecution witness, and the interchangeable reference by some police witnesses to the same object as a pipe or glass pipe and as a tube or glass tube is rather unfortunate because s.13 (b) of the Act uses the word "pipe" and information S68/07 charges the accused with possession of a "glass pipe". It is, perhaps, not surprising that counsel for the accused in his submission of no case to answer put the question: Is this a pipe and what is a pipe? Be that as it may, corporal Masofa and constable Faonu’u in their evidence clearly stated that what constable Edmond Masoe found was a glass pipe. Sergeant Taalo, the exhibits officer, said that what constable Edmond Masoe gave him was a glass pipe. Sergeant Samuelu referred to the same object as "paipa" even though he also said his English translation for that object is "glass tube". Sergeant Herbert who labelled the exhibits sent to the ESR referred to the same object as a glass tube or pipe. The report from the ESR forensic scientist refers to a glass pipe. The only prosecution witness who expressly rejected the use of the word paipa was constable Lorraine who said it was a glass tube. Constable Edmond Masoe was not available to give evidence as he is presently on an overseas peace-keeping mission by the United Nations.

In Adams on Criminal Law (cited by counsel by prosecution) in its commentary on the Misuse of Drugs Act 1975 (NZ), the learned author with regard to the meaning of the term "pipe" states at MD13.02:

" ‘Pipe’ does not mean only the sort of pipe which is commonly used to smokes tobacco, but includes, as a matter of ordinary usage in this context, any device which may be used to hold a controlled drug for the purpose of the inhalation of its smoke or fumes".

In this connection, constable Lorraine gave evidence, during examination in chief, that when the glass tube found in the water tank of the toilet of the bathroom of the accused’s bedroom was shown to the accused and inspector Fatu asked the accused as to who owned the tube, the accused replied that he did not own it. However, when inspector Fatu asked the accused again, the accused admitted that he had used the tube for smoking but when he was admitted to the hospital where he almost died of his illness, he ceased using the tube that was found in the water tank. When inspector Fatu was examined about the object that was found in the cistern of the toilet in the bathroom, the following was the question put and the answer that was received:

Q. Can you tell us what reaction the defendant had when you showed him this flask

A. I think I can recall it he didn’t say anything

Further on in his evidence in chief, inspector Fatu said that the flask looked like a test tube.

When sergeant Samuelu was cross-examined about the paipa (which he translated into English as a glass tube) the following were the questions put to him and the answers he gave in reply:

Q. Is that your evidence you want to give to the Court that it is an object used for smoking drugs? Is that correct?

A. My observation as a police officer in some of the work I had been involved in that is the only basis on which I can explain this kind of object.

Q. Have you witnessed anyone smoking this kind of object for you to say this object is used for smoking?

A. I have not seen anyone using it; I’ve only seen it in movies and in some of the items obtained from police work in previous years; they appear like the object you are asking about.

The report from the ESR forensic scientist refers to a glass pipe. Detective sergeant McCambridge who has been employed in the New Zealand Police for over thirty years and has been involved in a large number of drug enquiries was also called as a witness by the prosecution. He testified that there are a number of methods commonly used for smoking methamphetamine which is commonly known by a number of slang terms such as "meth", "speed", "P" and "ice". These methods include the use of a glass pipe. Methamphetamine is placed inside the pipe. A heat source is then placed underneath the pipe beneath the methamphetamine causing it to vaporise. The vapour is then inhaled.

I have given careful consideration to the prosecution’s evidence including the apparent inconsistency between the evidence of constable Lorraine and that of inspector Fatu to which I have referred. I have also considered the definition of a "pipe" given in Adams on Criminal Law (supra). In my view, there is sufficient in the prosecution’s evidence to establish a prima facie case that the object found by the police in the cistern of the toilet in the bathroom of the accused’s bedroom is a pipe in terms of the legal definition of a pipe. However, there is one other matter raised in the no case to answer submission that I have to deal with. This is again the apparent inconsistency between the evidence of sergeant Herbert and what is in the report of the ESR forensic scientist.

Sergeant Herbert said in his evidence that he received on 6 February 2006 from sergeant Samuelu, amongst other substances, a copper tube and a glass tube. Later in his evidence he referred to the glass tube "as a glass tube or pipe". All those substances were given exhibit labels by sergeant Herbert. The label was: "Police v Patrick Nicky Chan Chui, EXHDS/2006-39. The copper tube was given the special label of "39C" and the glass tube was given the special label of "39D". There was then a waiting period for a licence to send the exhibits to the ESR in New Zealand. On 22 March 2006, the copper tube and glass tube were placed in a separate envelope which was further labelled as EXHDS/2006-39C (1) and 39C (2). It was the copper tube that was labelled 39C (1) and the glass tube as 39C (2). These tubes together with other substances were then sent to the ESR on the same day, 22 March 2006.

A report from an ESR forensic scientist states that the ESR laboratory records show that the ESR received a sealed envelope from "Chief Inspector M Matafeo". The envelope contained, amongst other things, a sealed standard drugs envelope marked in part "Police v Patrick Nicky Chan Chui" and "EXHDS/2006-39C (1) (2)". The standard drugs envelope contained a smoking device and a glass pipe. Upon analysis, the smoking device was found to contain traces of cocaine but no common controlled drugs or prescription medicines were detected in the glass pipe.

The inconsistency which was pointed out in the no case to answer submission is that it appears from the evidence of sergeant Herbert that it was him who sent the items in question to the ESR. However, the report from the ESR forensic scientist states that the items were received from chief inspector M Matafeo. It raises the question whether the prosecution has established to the required standard that the items sergeant Herbert claims to have sent to the ESR are the same items that the ESR forensic scientist analysed and on which he prepared his report.

I accept that there is an apparent inconsistency between the evidence of sergeant Herbert and the report from the ESR scientist. However, as earlier pointed out, it is not every inconsistency in the prosecution’s evidence that will result in a successful submission of no case to answer. If anything, the inconsistency pointed out for the accused will only raise the question whether the glass pipe that was analysed by the ESR forensic scientist is the same as the glass pipe that was found in the cistern of the toilet in the bathroom of the accused’s bedroom and sergeant Herbert states he sent to the ESR. If there is any reasonable doubt about the matter, then ESR report should be excluded to the extent that it is of doubtful relevance to the issue of the glass pipe. But it does not mean that the said glass pipe is not a pipe. There is other evidence given by the prosecution witnesses to show that the said glass pipe is a pipe.

I am also of the view that the inconsistency between the evidence of sergeant Herbert and what is said in the report by the ESR scientist does not, on its own, necessarily lead to the conclusion that the glass pipe analysed by the ESR scientist is not the same as the glass pipe found in the accused’s bedroom or raise a reasonable doubt about that matter. The Court would have to consider all of the relevant evidence and determine as a question of fact whether the glass pipe found in the accused’s bedroom is the same as the glass pipe that was analysed by the ESR scientist. In this connection, there are also similarities and consistencies between the evidence of sergeant Herbert and what is said in the report of the ESR scientist. The time factor is also relevant. Sergeant Herbert in his evidence said that he sent the glass pipe and other exhibits on 22 March 2006 and the report by the ESR scientist states that the ESR laboratory records show that those items were received by the ESR on 29 March 2006.

The issue of possession was not raised in relation to information S68/06 but if that issue were raised, the authorities on possession cited in relation to information S67/06 would also be applicable here. Purpose was also not raised as in issue in relation to information S68/06 but if that issue was raised the evidence of constable Lorraine, sergeant Samuelu, detective sergeant Mc Cambridge and the other prosecution witnesses who described the features of the glass pipe would have been relevant to show purpose, namely, for smoking drugs. With respect I was not impressed with the evidence of Inspector Fatu when he said that what was found by constable Edmond Masoe in the cistern of the toilet in the accused’s bathroom was a flask and when he later refer to the same object as a test tube I was also not impressed with his answer when he was asked in examination in chief as to what was the accused’s reaction when he showed him the flask and he said "I think I can recall it he didn’t say anything". I found constable Lorraine’s evidence to the contrary to be of better quality and more acceptable.

Information 105/06 charging possession of a copper pipe for the purpose of consumption of narcotics

Counsel for the accused submitted that there is no case to answer in respect of information 105/06 on four grounds. These are: (a) there is no evidence from constable Misiluki Lolesio (constable Misiluki) who found the copper pipe in the accused’s house, (b) there is a possibility of the police planting the pipe inside the accused’s house, (c) there is a breach in the chain of custody, and (d) there is no evidence that the copper pipe was in the possession of the accused or that he had any knowledge of it. I will now deal with each of those grounds in turn.

In relation to ground (a), what is required of the prosecution is to prove the charge to the required standard. If that can be achieved through the evidence of other witnesses, then it is not necessary to call constable Misiluki who found the copper pipe in the accused’s house to testify as a witness. The reason for the prosecution not calling constable Misiluki as a witness is because he is currently engaged in an overseas peace-keeping mission by the United Nation. However, the prosecution called as witnesses other police officers who were members of the police team that searched the house of the accused.

Inspector Fatu who led the police team that searched the accused’s house said in evidence that one of the police officers found in one of the bedrooms of the accused’s house, which the accused said was the bedroom of his children, underneath the mattress on a single bed. The witness described the pipe as brown. When he was shown the pipe by counsel for the prosecution, he confirmed that is the copper pipe that was found in the accused’s house in the bedroom of his children.

Constable Lorraine in her evidence said that she was a member of the police team that searched the accused’s house. She was also one of the police officers who searched the bedroom of the accused’s children. She also said there was a bed in that bedroom which was searched and constable Misiluki found a copper pipe underneath the mattress. She described the pipe as brown and like a pipe used by old men (toeaiina) for smoking tobacco. She also said that inspector Fatu asked the accused inside the house whether he had any knowledge of the pipe and the accused said no. This copper was shown by counsel for the prosecution to constable Lorraine during her evidence in chief and she said that is the pipe found by constable Misiluki inside the bedroom that they searched.

Sergeant Taalo, the police exhibits officer, said in his evidence in chief that constable Misiluki gave him a paipa u’amea (iron pipe) inside one of the bedrooms of the accused’s house. He brought that pipe together with the glass pipe to the police station after the search. When the police arrived back at the station, sergeant Taalo gave the two pipes to sergeant Samuelu.

Sergeant Samuelu in his evidence said that he was one of the police officers who searched the bedroom which the accused said was the bedroom of his children. During the search of that bedroom constable Misiluki found a pipe under the mattress of the bed. Sergeant Samuelu described the pipe as brown in colour like an iron, and like copper. The other part of the pipe is a handle. This pipe together with the other exhibits were shown to the accused by sergeant Samuelu when he started to interview the accused at the police station. The accused, however, did not want to make a statement. So the interview stopped. Sergeant Samuelu said the exhibits were then given to sergeant Herbert.

On the evidence I have set out, there is sufficient acceptable evidence to show that it was constable Misiluki who discovered the pipe inside the bedroom of the accused’s children. It was not necessary for the prosecution to call constable Misiluki who is on an overseas peace-keeping mission by the United Nations, to give evidence in order to establish a case to answer.

In respect of ground (b), there is no evidence, whatsoever, that the police planted any of the substances or items with which the accused has been charged in the house of the accused. This ground of the no case to answer submission has no substance.

In respect of ground (c) which claims that there is a breach in the chain of custody, this ground again relies on the inconsistency between the evidence of sergeant Herbert and the report from the relevant ESR forensic scientist. To start with, it is clear from the evidence of sergeant Taalo that constable Misiluki who found the copper pipe gave that pipe to him, as police exhibits officer, at the scene of the search. Sergeant Taalo brought the copper pipe and the other exhibits with him to the police station. He then gave the copper pipe and those other exhibits to sergeant Samuelu who was to interview the accused. Sergeant Samuelu, at the start of the interview, showed the exhibits to the accused. When the accused did want to make a statement, the interview stopped. Sergeant Samuelu then passed on the exhibits, including the copper pipe to sergeant Herbert.

The inconsistency between the evidence of sergeant Herbert and the report by the ESR forensic scientist has already been discussed in other parts of this judgment including that part relating to the glass pipe which is the subject of information S68/06. Even though the report from the ESR scientist refers to a smoking device which contains traces of cocaine but not a copper pipe, constable Lorraine in her evidence described the brown copper pipe found on the bed under the mattress in the bedroom of the accused’s children to be like a pipe used by old men (toeaiina) for smoking tobacco. The evidence of other police officers like sergeant Taalo and sergeant Samuelu about the "paipa" also lend support to the evidence of constable Lorraine that the "paipa" which was found in the bedroom of the accused’s children was a smoking pipe rather than some other kind of pipe. At least there is no evidence to suggest that the "paipa" in question was some kind of pipe other than the one as described by constable Lorraine in her evidence.

In respect of ground (d) which states that there is no evidence that the copper pipe was in the possession of the accused or that he had any knowledge of it, the evidence is that the copper pipe was found on a bed underneath the mattress in the bedroom of the accused’s children. That bedroom is one of the bedroom’s of the accused’s house. Thus the copper pipe was in the physical custody or control of the accused: see Police v Emirali [1976] 1 NZLR 286, 289; R v Cox [1990] NZCA 13; [1990] 2 NZLR 275, 278. The relevant passages in those two cases have already been cited in this judgment. Whether the accused had knowledge of the existence of the copper pipe inside his house is a matter of inference in this case. The discovery of the copper pipe inside the house of the accused gives rise to the inference that the accused was aware of its existence inside his house: Police v Emirali (supra). The discovery of a glass pipe in the cistern of the toilet of the bathroom of the accused’s bedroom and the substances found in a video case inside the accused’s bedroom which the accused admitted to the police were marijuana substances also lends support rather than contradict the inference concerning knowledge of the copper pipe on the part of the accused. There is also the statement in the report by one of the ESR forensic scientists that two of the cigarettes (joints) contained traces of cannabis and cocaine and the statement in the report by another ESR forensic scientist that he found the smoking device to contain traces of cocaine.

The inference of knowledge required for the physical element of possession can be displaced by evidence to the contrary; but such evidence must be acceptable: R v Jones [2007] NZCA 187; Police v Mariota [2003] WSSC 6; Police v Semeatu Siaosi [2007] WSSC 9. There is also the evidence of constable Lorraine that when the copper pipe was discovered, inspector Fatu showed it to the accused and asked him whether he had any knowledge of it. The accused replied no. After careful consideration of the accused’s brief out of Court denial, I cannot conclude with the necessary degree of confidence at this stage of proceedings, having regard to all of the relevant evidence, that it is sufficient to displace the inference of knowledge that is required for the physical element of possession.

I, therefore, conclude that there is a case to answer in respect of information S105/06.

Information 159/06 charging possession of fifty four .22 live ammunitions without lawful, proper and sufficient purpose.

The essence of the no case to answer submission in respect of information S159/06 is that there is no evidence to show that the accused’s possession of fifty four .22 live ammunitions was "without lawful, proper and sufficient cause".

Corporal Masofa in his evidence said that during the search by the police of the accused’s house, he found in one of the drawers of the dressing table which was inside the accused’s bedroom fifty four .22 live ammunitions. Some of the ammunitions were inside a plastic packet (pepa i’ila) and some were just scattered inside the drawer. Corporal Masofa also said in his evidence that he showed the ammunitions to the accused inside his house and asked him about them. The accused replied that the ammunitions had been lying inside the drawer for a long time but he has no gun. The ammunitions were then given by corporal Masofa to sergeant Taalo, the police exhibits officer. This was confirmed by sergeant Taalo in his evidence. Sergeant Taalo then placed the ammunitions inside a bag (taga pepa) and when the police team arrived back at the station he gave the ammunitions and the other exhibits found in the accused’s house to sergeant Samuelu who was to conduct the interview of the accused.

Superintendent Papali’i Talamesi Fitisemanu (superintendent Papali’i), the police officer who has been supervising firearms and ammunitions for twenty one years, said in his evidence that sergeant Samuelu gave him the ammunitions on 18 April 2006. He then inspected and checked the ammunitions and prepared a report of his findings which he produced as part of his evidence. This report shows that the ammunitions were .22 calibre ammunitions which can be discharged from a wide range of .22 calibre firearms such as: (a) single shot and automatic .22 rifles, and (b) pistols – revolvers and automatic .22 calibre. The report further states that pistols are illegal in Samoa and automatic rifles are given to select applicants.

Corporal Kapeli Faalogo who works in the section of the Ministry of Police that is responsible for the registration of firearms and the issuing of permits for ammunitions was also called as a witness by the prosecution. He testified that the people to whom licences for ammunitions are those people whose firearms are registered. He had checked the arms register and the name of the accused does not appear therein.

I accept the submission by counsel for the prosecution that pursuant to s.13 of the Arms Ordinance 1960 under which the accused has been charged, the burden of proving "lawful, proper, and sufficient purpose" is on the accused. Section13 (1) provides:

" (1) No person shall carry or be in possession of any firearm, ammunition, explosive, or dangerous weapon except for some lawful, proper and sufficient purpose, and the burden of proving such purpose shall lie on the defendant."

In terms of s.13 (1), it is for the accused to prove that he had some lawful, proper, and sufficient purpose for being in possession of the ammunitions with which he has been charged. Whether this is a legal burden of proof or simply an evidential burden of proof is not an issue in there proceedings.

From the foregoing, there is also a case to answer in respect of information S159/06.

Conclusions

1) In relation to information S67/06, I find that there is no case to answer in respect of the alleged five small plastic packets of dried marijuana leaves but there is a case to answer in respect of the alleged possession of the three joints of marijuana.

2) In relation to information S68/06, I find that there is a case to answer in respect of the alleged possession of a glass pipe for the purpose of consumption of narcotics.

3) In relation to information S105/06, I find that there is a case to answer in respect of the alleged possession of a copper pipe for the purpose of consumption of narcotics.

4) In relation to information S159/06, I find that there is a case to answer in respect of the alleged possession of 45, .22 live ammunitions without lawful, proper and sufficient purpose.

5) Informations S184/06 and S185/06 have already been dismissed as the prosecution offered no evidence in respect of those informations.

CHIEF JUSTICE

Solicitors

Attorney-General’s Office, Apia, for prosecution

Toa Law for accused