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Police v Faleupolu [2017] WSDC 22 (4 October 2017)

IN THE DISTRICT COURT OF SAMOA
Police v Faleupolu [2017] WSDC 22


Case name:
Police v Faleupolu


Citation:


Decision date:
04 October 2017


Parties:
POLICE (Informant) and TUIFAGALILO FALEUPOLU, male of Lotofaga (Defendant)


Hearing date(s):
03 October 2017


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
Bail application is granted with conditions.


Representation:
V Afoa for Prosecution
M V Peteru for the Defendant


Catchwords:
Bail application – possession of unlawful weapon


Words and phrases:


Legislation cited:
Criminal Procedure Act 2016 ss. 98; 99; 105
New Zealand Bill of Rights Act 1990 s. 25(c)


Cases cited:
Adams on Criminal Law Vol 3 BL 8.03;
Faafua v Police [2010] WSSC 33;
Hereora v Queen [2011] NZCA 429;
Hubbard v Police [1986] 2 NZLR738;
Nguyen v Police 7/04/06, Frater J HC Auckland CRI -2006- 404 -71;
Papu v Police [2006] WSC 39;
Police v Ah Ching [2016] WSSC 31;
Police v Barlow [2017] WSSC 107;
Police v Falealili [2013] WSSC 137;
Police v Leleimalefaga [2017] WSSC 121;
Police v Posala [2015] WSSC 92;
Police v Pule [2017] WSSC 127;
Police v Stehlin [1993] WSCA 5;
Ranginui v Police HC Auckland Cri – 2010 092 to 1156, 7 September 2-10;
R v Blaikie (1999) CRNZ 122;
Ulugia v Police [2010] WSSC 184;
Vitale v Police [1999] WSCA 4.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN


P O L I C E
Prosecution


AND


TUIFAGALILO FALEUPOLU male of Lotofaga
Accused


Counsel:
Ms V Afoa for Prosecution
Ms M V Peteru for the Defendant


Hearing: 3 October 2017
Bail Ruling: 4 October 2017


RULING ON BAIL APPLICATION

Proceedings

  1. The Defendant Tuifagalilo Faleupolu (“Faleupolu”) is charged with one count alleging that on 26/09/17, he was in possession of an unlawful weapon namely a .32 calibre semi- automatic pistol (“the gun”) and 24 ammunitions for an unlawful weapon not being so authorised by the Minister of Police.
  2. Prosecution informed the charge is yet to be finalised and will be seeking a two weeks adjournment for that purpose. Ms Peteru for Faleupolu indicated that the defence had no objection to the proposed application but sought bail be granted on conditions. A bail application with an affidavit in support has been filed and I understand from Prosecution they were served with these documents on Thursday, 28/09/17.
  3. I must note here, that when this matter was called for mention after 10am 3/10/17, Faleupolu had not been brought from Tafaigata so I stood it down. At first the Court was informed he was on his way. When the matter was recalled, Ms Peteru informed that she had contacted Ms Titi for the Prosecution and she had requested if the matter could be stood down until 2pm for them to bring the Defendant to court and to review their file as they only just received it from Police.
  4. I rejected the request as the Court had a full day with criminal, traffic and civil mentions which made it even more important that this defendant be brought to Court in a timely manner for his bail hearing to be dealt with, not when Police felt convenient to them. However, the delay, in my view, had the potential of interfering with the order and due disposition of Court business on the day.
  5. I also noted that other custodies were brought on time but not this particular defendant. But Prosecution had notice on 28/09/17 of the bail application and of the date fixed by the deputy registrar to hear that application being 3/10/17. The bail hearing fixture by the deputy registrar equates to a judicial direction and must be complied with. So arrangements should have been made to ensure Faleupolu was in Court on time.
  6. I directed that if Faleupolu is not in Court by 1pm, I will issue an order for contempt of court charges to be brought against whoever is responsible for the delay. I must say, I am very concerned about the blaze attitude in having Faleupolu in Court on time. But I must warn now, such attitude will not be condoned any further. When an accused in custody is meant to be in Court as directed either by a Court Registrar or Judge then that must be done. Of all places where law and order must be maintained, it is here in Court.
  7. I do note Ms Afoa’s profuse apologies to the Court for the delay which I accepted. I know she tried her best as Prosecutor dealing with the long list of criminal and traffic matters and at the same time liaising with Police to bring the defendant to Court as directed.
  8. Faleupolu was eventually brought to Court at 11.55am and I then heard from Ms Peteru on the bail application. Police opposed the application but no substantive grounds were advanced. I stood down the matter until 4pm to hear more from the Prosecution before the delivery of this decision.
  9. Just after 4pm, an affidavit by a Corporal Aasa Afoa (“Corporal Aasa”) was received clarifying the grounds for opposing bail. I heard again from Prosecution and Defence Counsel and adjourn the matter to 4/10/17 for a decision.
  10. This is my ruling.

Law

  1. Faleupolu is not bailable as of right but at the discretion of the Court.
  2. Section 98 of the Criminal Procedure Act 2016 (“CPA”) deals with the rules pertaining to a bail application and provides as follows:
  3. Section 99 CPA then deals with the factors to be taken into account in determining whether there is just cause for the continued detention of an accused cited below:
  4. Section 105 CPA provides for the type of evidence that may be received in the hearing of a bail application.

Brief Background

  1. According to Police and confirmed by Defence Counsel, on 26/09/17, a Police search (“the search”) for narcotics was conducted on the vehicle driven by Faleupolu at the material time, as well as the premises at Lotofaga where Faleupolu currently resides. The gun and ammunitions the subject of the charge Faleupolu faces was confiscated from the search.
  2. Ms Peteru informs other items including passports of family members not charged with the offence, electronic devices and cash was also confiscated. Faleupolu was arrested and charged with this offence on the same date.
  3. According to Faleupolu’s affidavit sworn on 28/09/17 (“Faleupolu’s Affidavit”) the search was for narcotics but none was found. Ms Peteru told the Court that the search was thorough it started with the vehicle Faleupolu travelled in and later their premises.
  4. Faleupolu seeks bail whilst awaiting trial saying he has a construction project underway and a business requiring his attention. He resides overseas and in Samoa but has given his undertaking to remain in Samoa until the charge against him is concluded.
  5. The affidavit by Corporal Aasa sets out the grounds for opposing bail as well as details of the search, discovery of the gun, ammunitions, cash, scale and other items confiscated. It also confirms the charge and continuation of Police investigations.

Grounds in support of bail application

  1. Faleupolu seeks bail on the grounds as set out in his affidavit summarised by Defence Counsel as follows that:
    1. He denies the charge on the premise that he is not the only one who accesses the room in which the gun and ammunition was found, the house belonged to his parents and other relatives also reside there;
    2. Although the search was for narcotics, none was found and to date the only charge before the Court is possession of an unlawful weapon and ammunitions;
    1. The risk of flight is minimal as Faleupolu has just the one passport already surrendered to Police;
    1. Faleupolu is unaware of any potential witnesses and will not interfere;
    2. Faleupolu has no known previous convictions and unlikely to offend whilst on bail;
    3. There are no known risks to the community.

Grounds against Bail

  1. Prosecution seek further detainment on the grounds that:
    1. Police investigations are still continuing;
    2. The information received by Police leading to the search warrant and raid was Faleupolu dealt with ‘ice’. Police allege the large amounts of cash, electronic devices, a scale and other items that were confiscated during the search supported their theory of ‘dealing.’ Another theory is the scale confiscated from the vehicle is a tool used by drug dealers to weigh ‘ice’ for sale on market;
    1. There is a likelihood of flight and risk of non appearance in court;
    1. There is also a likelihood of tampering with witnesses; and
    2. There is also the likelihood of offending whilst on bail due to (b).

Approach to Bail Application.

  1. I intend to follow in this bail proceeding, the approach in Police v Posala,[1]also applied in Police v Ah Ching[2], Police v Barlow[3], Police v Lelefaga[4] and P v sup>[5]. The latter three were bail applicatinder the new CPA. Nevertheless, it is my view that the appr approach that generally applied prior to the new CPA as set down in Stehlin v Police[6]and Vitale and Gain v Police[7]and followed invariably in subsequent cases[8] still applies to date with some modifications as seen in Papu v Police[9]and Posala.
  2. I note that the Court of Appeal in Vitale followed the NZ High Court case of Hubbard v Police[10]where it was said that there were two factual questions for the Court to consider in a bail application. Firstly the probability or otherwise of the defendant answering to his bail and attending at his trial and secondly the public interest. Then in Papu CJ Sapolu decided to follow the approach and principles in the NZ Court of Appeal decision of R v Blaikie[11]also adopted in Posala.
  3. Papu and Posala, stated that when dealing with a bail application, the real question to be considered is whether there is just cause for the continued detention of an accused in custody. This is in line with the NZ approach to bail in their Bail Act 2000 which adopted the principles in Blaikie. I note the same is also mirrored in the implied policy of s99 CPA and principles of bail encompassed in Blaikie, Papu, Posala and subsequent cases like Barlow.
  4. In Posala it was said that the factors that must be taken into account in considering the question of whether there is just cause for continued detention are:[12]
    1. whether there is a risk that the accused may fail to appear on the date to which he has been remanded; or
    2. whether there is a risk that the accused may interfere with witnesses or evidence; or
    1. whether there is a risk that the accused may offend while on bail; and
    1. any matter that would make it unjust to detain the accused.
  5. Posala recognises that it is not just any type of risk that will attract the denial of bail but the risk must be ‘real and significant’. The onus of proof lies with the Prosecution. According to CJ Sapolu in Barlow, “whether such a risk exists requires a proper inference to be drawn from proved facts.”[13]
  6. In Barlow[14] CJ Sapolu, sest out the factors to consider in determining whether there is just cause for continued detention which mirrors s8(2) NZ Bail Act 2000 as follows:
    1. the nature of the offence charged;
    2. the strength of the evidence and the probability of conviction or otherwise,
    1. the seriousness of the punishment to which the accused is liable, and the severity of the punishment that is likely to be imposed,
    1. the character and past conduct or behaviour, in particular proven criminal behaviour, of the accused,
    2. whether the accused has a history of offending while on bail, or breaching Court orders, including orders imposing bail conditions,
    3. the likely length of time before the matter comes to hearing or trial,
    4. the possibility of prejudice to the defence in the preparation of the defence if the accused is remanded in custody,
    5. any other special matter that is relevant in the particular circumstances.”
28. The learned CJ Sapolu also noted that “the gravity of the offence with which the accused is charged is not of itself enough to justify a conclusion that there is a real and significant risk that the accused will not answer bail.”[15]
  1. In terms of s99 CPA and application of the approach in Posala, CJ Sapolu had this to say in Barlow which I intend to follow here:
  2. I now turn to address the four issues as set out in paragraph 25 above and assessing these against the factors provided under s99 CPA.

Discussion

a) First issue: Is there a risk the accused may fail to appear on the date to which he has been remanded?

  1. In Posala, CJ Sapolu cited with approval passages from Adams on Criminal Law[16] on how to assess this issue which I need not repeat here suffice to reproduce his Honour’s observation below which I adopt here:

“It is clear from the passages cited from Adams on Criminal Law Vol BL 8.03, that the gravity of the offence is no longer enough in itself to justify a conclusion that there is a real and significant risk that the accused will not answer bail. The Court may also take into account the strength of the case for the prosecution and therefore the likelihood of a conviction in assessing such risk. The risk of non - appearance must also be judged in light of the defendant’s previous history including any previous absconding, previous offending, and previous failure to answer bail including police bail. Furthermore the risk of absconding may be minimised by imposing bail conditions such as surrender of passports, regular reporting to police, notifications of possible issuers of travel documents, sureties or a monetary payment into court”..

  1. The charge before the Court attracts a penalty of 5 years imprisonment or a fine not exceeding 10,000.[17] Ms Peteru informs Faleupolu vehemently denies the charge and will be entering a not guilty plea. So in terms of gravity as reflected in the penalty, it is a serious offence.[18]But as stated in Posala, the gravity is not of itself sufficient to justify continued detention. In Blaikie it was there observed that[19]:
  2. Adams on Criminal Law observed that cases since Blaikie have recognised that bail is now regularly granted to person with very serious offences.[20]
  3. As to the strength and weaknesses of the Prosecution’s case and likelihood of a conviction, there is nothing before me to assist or ascertain this at this stage.[21] But what I do have is information from Ms Peteru of their defence that Faleupolu is not the only one who resides at the raided premises but that others in his family also reside there and freely access the room in which the weapon and ammunitions were discovered. Whether this defence will hold water, is not for me to decide in this proceeding. But at this stage on the information before me, it hardly justifies further detainment.
  4. Faleupolu, Ms Peteru informs is a mechanic by trade and self-employed. He resides at Lotofaga with his parents when he is in Samoa but also has a residence in Los Angeles, USA. He frequently travels there to purchase vehicles and import these to Samoa.
  5. According to Ms Peteru, Faleupolu had travelled to Samoa for some business and to construct his parents’ home at Lotofaga where the Police raid took place. He had also on this occasion imported some vehicles and was working on fixing these for re-sale.
  6. Police say Faleupolu is a flight risk[22] given his US citizenship and travels regularly.[23] It is alleged that Police has received information Faleupolu intends to leave the jurisdiction and if granted bail it is likely he will not comply with its conditions and unlikely to appear in Court. But there is no travel itinerary to this effect. With all due respect, this is highly speculative and I cannot continue to detain Faleupolu on speculations and guesswork. There must be proved facts as required under s.105 CPA. In Ranginui v Police[24]the High Court there said:
  7. It is a known fact that Police practice where an accused (including those remanded at liberty), faces criminal charges even minor ones, is to issue notices to the Ministry of Samoa Immigration, prohibiting an accused from leaving the country (“Police DPO”). Quite often an accused, unaware of this, and the procedure to apply for leave to leave the jurisdiction would face the dilemma of not being able to board the plane at the airport due to this Police DPO. At times too, defence counsel would invariably negotiate with Prosecution to allow the concerned accused to leave upon furnishing a return ticket. So Police does have this procedure in place.
  8. The risk of flight and failure to appear for court fixtures is usually cured by surrendering travel documents, reporting clauses, depositing of cash payment and notification of any attempts to issue a passport.[25] Faleupolu is represented by senior defence Counsel who is very familiar with the procedure to seek leave from the Court to leave the jurisdiction. So if there is such an intention, then I am certain Ms Peteru will be filing the appropriate application.
  9. This is the first time Faleupolu has been charged here with an offence. So there is no history of non - compliance with bail conditions or previous absconding. There is nothing before me to suggest he will not appear at subsequent callings of this matter.[26] He has given an undertaking in his affidavit that he will see this to the end.
  10. Furthermore, Faleupolu is also a resident here and runs a business as a mechanic reselling vehicles at a profit. His parents also reside here in Samoa meaning he has permanent ties that would always draw him back to Samoa.
  11. Overall, I am not satisfied that there is a real and significant risk of flight or of Faleupolu not appearing in Court if he is granted bail.

b) Second issue: Is there a risk that the accused may interfere with witnesses or evidence?

  1. In assessing this risk, Posala referred once again to Adams on Criminal Law[27]where it stated:
  2. According to Corporal Aasa, Faleupolu has the potential to influence witnesses.[28] But again this assertion is made without any proper evidential foundation meaning there is no statement or affidavit from a potential witness that Faleupolu is already attempting to do this. Section 105 CPA applies. There must be proved facts. Compared to Barlow, an affidavit by the Accused’s wife and statement by the key witness was before the Court which assisted in assessing this factor. The allegation here however, is, but mere speculation and I cannot rely on Corporal Aasa’s speculations as gospel.
  3. Faleupolu, as Ms Peteru points out does not have any knowledge of the informant or witnesses for the Prosecution. He cannot tamper with witnesses if he has no such knowledge. Also he has no history of offences against the administration of justice. It is likely most known witnesses are Police officers who carried out the raid. However, as was said in Nguyen v Police there is a lower risk of interference if relevant witnesses are police officers.[29]
  4. Where there are concerns about interfering with witnesses it is usually cured with a condition forbidding contact with Prosecution witnesses.
  5. It is my opinion, there is no real and significant risk that Faleupolu will interfere with any potential Prosecution witnesses if granted bail.

(c) Third issue: Is there a risk that the accused may offend while on bail?

  1. Police say the accused is likely to reoffend if granted bail.[30] But there is nothing before me to support this speculation or to infer this is likely. As I said above, there is no known history of offending either here in Samoa or any other county and Prosecution confirmed this.
  2. Police carried out this raid due to information received about Faleupolu dealing with drugs. But none was found. There is no known history of addiction to narcotic substances or drugs which in itself is a powerful incentive for reoffending.[31] At the end of the day, I must bear in mind the charge before this Court is possession of an unlawful firearm.
  3. Police fear their investigations will be compromised if Faleupolu is granted bail. But in what way? They say the confiscation of cash, electronic devices and other items in their minds is cause for suspicion. However, according to Ms Peteru, Faleupolu had just sold a station wagon vehicle registration # 19853 to a Ioane Tulasi for $12,000 and a letter to that effect with a vehicle registration transfer form was submitted to the Court as confirmation. The sale of another vehicle is also pending,
  4. As I understand the Prosecution’s argument, because of these confiscated items it renders support to their suspicion of the likelihood of reoffending. With all due respect, suspicion does not in my mind justify continued detainment.
  5. I therefore hold there is no real and significant risk that Faleupolu may reoffend if granted bail.

(d) Fourth issue: Is there any matter not already covered that would make it unjust to detain the accused?

  1. A primary principal of criminal law is an accused is presumed innocent until proven guilty. For our part, this has been elevated as a fundamental human right entrenched in Article 9 (3) of our Constitution which states “Every person charged with an offence shall be presumed innocent until proved guilty according to law. In my opinion, this principal must be adhered to from the start of the criminal process to the end unless there is a just reason for departing from it.
  2. New Zealand bail applications are governed by their Bail Act 2000 which goes hand in hand with the NZ Bill of Rights Act 1990 (“NZBORA”). What this means is, in considering a bail application, NZ Courts are required to take into account any likely infringements of fundamental rights protected by the NZBORA. Such rights include inter alia the presumption of innocence, right to liberty, delay in having the matter heard, and adequate facilities to prepare a defence. So it is a balancing exercise.
  3. Unlike Samoa, where our Constitution is the supreme law of the land, NZ has an unwritten constitution so it does not have the same supreme and entrenched status as our Constitution. The right to be presumed innocent is provided under s25 (c) NZBORA. Blaikie was one of the first cases to address the provisions of the NZBORA in a bail application. It had this to say about the presumption of innocence:
  4. In Hereora v Queen[32] the NZ Court of Appeal dealt with an appeal against the denial of bail. The Court there held that the rights under the NZBORA including the right to be presumed innocent until proven guilty, undue delay in having the charge heard, prejudice to the accused in preparing his or her defence are relevant considerations in a bail application. The Court of Appeal there had this to say about the relationship between the NZBORA and Bail Act:
  5. I see great sense in adopting the NZ balancing approach to our own local context given the supremacy of the provisions of our Constitution. This in my opinion would require balancing the provisions of the CPA in ss98 & 99 and the principles and approach in Posala and Barlow with the fundamental rights enshrined in our Constitution. Again, each bail application will turn on its own facts.
  6. As I said above, where a defendant pleads not guilty or intimates this to be the plea, the presumption of innocence until proven guilty is a prevalent consideration that must be adhered to unless there is just cause for continued detainment. We saw this in Barlow where bail was denied despite his not guilty plea on the premise that he was likely to interfere with witnesses and his previous conviction on a similar offence.
  7. This case however is distinguished and the presumption of innocence in my view ought to be given substantial weight given the circumstances of the offending and information before me for this bail hearing.
  8. In addition, the accused is entitled to have adequate time and facilities available to him to prepare his defence which in my view include having free access to his lawyer. Further detainment in custody may well hinder this.
  9. Police has sought an adjournment to finalise charges. Given the intimation of a not guilty plea, it is unlikely the charge would go to hearing before the end of the year. In the meantime, Police wants Faleupolu in custody. I cannot entertain this for the reasons alluded to in this ruling.
  10. There is the fundamental right under Article 6 (1) not to be deprived of personal liberty except in accordance with the law. Here, Faleupolu was lawfully remanded in custody pending his appearance in Court. If I hold there is no just reason to further detain Faleupolu then he must be released. Any further detainment may well lead to a breach of his right to liberty.
  11. There has been a similar case of this nature before this Court where bail was granted. So there must be consistency. It is my view that, it is not in the public interest to deviate from the approach this Court has taken in offences of similar nature in the absence of any convincing provable facts of a real and significant risk justifying further detainment.
  12. Whilst I accept each case depends on its own peculiar circumstances, here, Prosecution has not demonstrated at all that continued detention is justified.

Conclusion

  1. For the above reasons, the bail application is granted on the following strict conditions.
    1. Faleupolu’s passport must remain surrendered but to the Court Registrar not Police.
    2. If he has a Samoan passport then this must be surrendered. If he does not have one, a letter from the Samoan Immigration must be furnished to the Court Registrar confirming this before he is released;
    1. He is prohibited from obtaining a passport either a Samoan one or any other from the Countries he is a citizen until this matter is concluded;
    1. Police is to issue a DPO as is their normal practice to ensure he does not board a plane or ferry out of Samoa without leave of the Court;
    2. Should he wish to travel then the proper application must be filed for leave to leave jurisdiction;
    3. He is to sign in at the Lotofaga post every Thursday of every week before 12pm;
    4. He is not to tamper with any Police witnesses meaning he is not to make direct or indirect contact with any of Prosecution’s witnesses;
    5. He is to reside at Lotofaga at all times.

JUDGE ALALATOA R VIANE PAPALII

[1]P v Posala [2015] WSSC 92 at para 3
[2]P v Ah Ching [2016] WSSC 31 at para 12
[3]P v Barlow [2017] WSSC 107;
[4]P v Leleimalefaga [2017] WSSC 121 at para 12
[5]P v Pule [2017] WSSC 127
[6]P v Stehlin [1993] WSCA 5
[7]Vitale v Police [1999] WSCA 4

[8]See Faafua v Police [2010] WSSC 33 and Ulugia v Po#160; [2010] WSSC 184 andPolice v Falealili [2013] WSSC #160;

[9]Papu v Police [2006] WSC 39
[10]Hubbard v Police [1986] 2 NZLR738
[11]R v Blaikie (1999) CRNZ 122.
[12]Supra n 1 at paras 15 & 16
[13]Supra n 3 at para 9
[14]Supra n 3 at para 10

[15]Supra n 3; also seePolice v Posala [2015] WSSC 92, para 18; Police v Ah Ching [2016] WSSC 31, para 14.


[16]Adams on Criminal Law Vol 3 BL 8.03
[17] This reflects s 99 (e)& (j) CPA which replicate each other
[18]Section 99(h) CPA
[19] Supra n 11 at para 11
[20]Cited in Posalaat para 18
[21]Section 99(i) CPA
[22]Section 99 (a) CPA
[23]Paragraph 5 Corporal Aasa’s affidavit.
[24]Ranginui v Police HC Auckland Cri – 2010 092 to 1156, 7 September 2-10 at para 8
[25]See Posala
[26]Section 99 (c), (f) & (g)
[27]Supra n 16 at para 8.04
[28]Section 99 (b) CPA
[29]See Nguyen v Police 7/04/06, Frater J HC Auckland CRI -2006- 404 -71
[30]Section 99 (d) CPA
[31] See Hereora v Queen [2011] NZCA 429.

[32]Ibid at paras 16, 17 & 18

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