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Police v Finau [2017] WSDC 24 (3 November 2017)

DISTRICT COURT OF SAMOA
Police v Finau [2017] WSDC 24


Case name:
Police v Finau


Citation:


Decision date:
03 November 2017


Parties:
POLICE (Infomant) and ALENI FINAU (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
-It is in the interest of fairness and justice, that bail be immediately granted to you Finau on the same conditions that I granted bail on 13/09 with variations. The conditions are:
- i) Residence: You are to reside at Faatoia at all times;
- ii) Curfew: You are not to go anywhere between the hours of 6.00pm in the evening to 8.00am the next day;
- iii) Offending: You are not to re-offend from now until your trial;
- iv) Signing: You are to sign in before 12.00pm on Monday, Wednesday and Friday at the Apia Police Station.


Representation:
Ms V Afoa for Prosecution
Mr K Koria for Defendant


Catchwords:
Bail application


Words and phrases:


Legislation cited:

New Zealand Bail Act 2000 s. 8(1), (2);
New Zealand Bill of Rights Act 1990 s. 25(c);


Cases cited:
P v Ah Ching [2016] WSSC 31 at para 12
P v Barlow [2017] WSSC 107;
P v Faleupolu [2017] WSDC 22 (4 October 2017)
P v Leleimalefaga [2017] WSSC 121 at para 12
P v Papu [2006] WSSC 39
P v Posala [2015] WSSC 92 at para 3
P v Pule [2017] WSSC 127
R v Blaikie (1999) CRNZ 122
Ranginui v Police HC Auckland Cri – 2010 092 to 1156, 7 September 2-10.
Nnamdi v Attorney General [2011] WSSC 91
Hereora v Queen [2011] NZCA 429;

Adams on Criminal Law Vol 3 BL


Summary of decision:

THE DISTRICT COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E
Informant


A N D:


ALENI FINAU
Defendant


Counsel:
Ms V Afoa for Prosecution
Mr K Koria for Defendant


Date: 03 November 2017


BAIL RULING

THIS PROCEEDING

  1. This proceeding is concerned with the Accused, Aleni Finau’s (“Finau”) application for bail. In actual fact it is a review of bail as this was denied on 24/10/17.
  2. Finau you face seven (7) charges relating to obtaining by deception. These are listed below in accordance with the filing dates:
    1. Information number D1628/17
      • Filing date: 25/05/17;
      • Particulars: At Vaivase Uta on 24/05/17, defendant obtained by Deception $100 from Peau F Williams of Siumu & Sinamoga;
      • Mention date: 06/06/17;
      • Plea: Not Guilty 01/08/17;
      • Bail: Denied by J Roma 6/06/17 but later granted by J Saaga on 01/08/17;
      • Status: Adjourned for hearing 1/09/17. Court unavailable on that date & further adjourned to 5/9/17 for mention to set new date. On 5/09/17 adjourned by J Roma and remanded on same bail conditions to 2/11/17 for hearing.
    2. Information number D2740/17
      • Filing date: 16/08/17
      • Particulars: At Vaivase-uta on 13/08/17 defendant by deception caused loss to Kionasina Sa of Vaivase-Uta
      • Mention date: 18/08/17 but court record says first called on 12/09/17
      • Plea: Not Guilty 13/09/17
      • Bail: Prosecution sought adjournment without plea to finalise charges. Defendant sought bail saying he was arrested again for this charge when he went in to report and have been in custody since. Police oppose. Adjourned 13/09/17 for police to finalise charges. On 13/09/17 defendant entered a not guilty plea to this charge and D2739/17, bail granted on conditions and matter adjourned for hearing 2/11/17 to be heard together with other charges on advice of Police.
    3. Information number D2739/17
      • Filing date: 18/08/17;
      • Particulars: At Vaivase uta on 14/08/17 defendant by deception caused loss to Kionasina Sa of Vaivase-uta;
      • Mention date: 12/09/17 (Additional charge);
      • Plea: Not Guilty;
      • Bail: As above;
      • Status: As above.
    4. Information number D2849/17
      • Filing date: 01/09/17;
      • Particulars: At Falefa on 22/12/16 defendant obtained by deception $622 cash property of Petelo Anitelea of Faleasiu and Matautu;
      • Mention date: 05/09/17;
      • Plea: Not guilty 05/09/17;
      • Bail: Bail granted on same conditions by J Roma 05/09/17;
      • Status: Adjourned to 02/11/17 for hearing.
    5. Information number D3994/17
      • Filing date: 13/09/17;
      • Particulars: At Pesega on 12/08/17 defendant by deception obtained a Forester Subaru plate number R416 valued at $140 per day thereby causing loss to AA Rentals;
      • Mention date: 26/09/17. Called and adjourned to 24/10/17 for Police to finalise charges;
      • Plea: Not guilty 24/10/17;
      • Bail: remanded in custody;
      • Status: Adjourned to 02/10/11 to be heard together with other charges on request of prosecution.
    6. Information number D3993/17
      • Filing date: 13/09/17;
      • Particulars: At Matautu on 9/08/17 defendant obtained by deception a Rav4 Plate number R739 valued at $140 per day property of Funway Rentals at Matautu tai;
      • Mention date: 26/09/17;
      • Plea: Not Guilty 24/10/17;
      • Bail: Remanded in custody. Police opposed bail;
      • Status: As above.
    7. Information number D4567/17
      • Filing date: 24/10/17
      • Particulars: At Lotopa on 10/08/17 D obtained by deception $100 cash and Dell top laptop valued at AUD$500 belonging to Dorothy Ah Chong of Moamoa
      • Mention date: 24/10/17
      • Plea: Not Guilty 24/10/17
      • Bail: Remanded in custody on advice of Police oppose bail and reoffended
      • Status: As above.
  3. As noted above, the charges were filed separately and called for mention on different dates.
  4. All charges came before me for hearing on 2/11/17 where you sought an adjournment to instruct a lawyer to act for you. Prosecution consented to the application.
  5. You also drew my attention to the fact that you were not released on bail on previous occasions despite bail being granted. Clarification was sought from Prosecution who confirmed this. The explanation was you faced serious similar charges, reoffended whilst on bail and have previous convictions for similar offending.
  6. I recall the same explanation was put forth on 24/10/17.You had asked for bail. Police objected saying that “o le tatalaina lea i tua o le ua tula’i na alu atu ai ma maua mai ai i nisi mataupu pei o le ala lea na taofia ai lava” When asked if this was a separate matter from those the Court dealt with on 13/09, Prosecution confirmed it was.
  7. Given the urgency of your bail and the trial not proceeding due to your application for counsel to act, I then adjourned the matter to the next day 3/11/17 for you to engage counsel and for the bail hearing. Police was ordered to file the grounds opposing bail by 10am the next day and the Court will then hear submissions at 12.30pm. This was received.
  8. The next day, Mr Koria appeared on your behalf. The gist of Mr Koria’s argument was that you had been deprived from enjoying your bail conditions previously granted by the Court. You only enjoyed this for two weeks from the period of 1/08/17 to 16/08/17. This was after J Saaga granted bail on 1/08/19 on the charge recorded as information D1628/17. Mr Koria also emphasised the presumption of innocence given your denial of the charges.
  9. Police opposed bail on the grounds set out in its submission. These were:
    1. your previous convictions from 2012 to 2016 which included offences of a similar nature; the likelihood of reoffending and risk to the public;
    2. seriousness of the offending and likelihood of absconding;
    3. an early hearing date can be achieved if prosecution vacates one of its fixtures; and
    4. you can access your counsel at Tafaigata prison or alternative arrangements may be made for you to be brought to the Apia station to see your counsel.

LAW

Criminal Procedure Act 2016

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

“99. Factors relevant to decision as to bail - In considering whether there is just cause for the defendant to be remanded in custody or for continued detention, a Court must take into account the following:

(a) whether there is a risk that the defendant may fail to appear in Court on the date to which the defendant has been remanded;

(b) whether there is a risk that the defendant may interfere with witnesses or evidence;

(c) any previous conviction on an offence of a similar nature;

(d) whether there is a risk that the defendant may offend while on bail;

(e) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;

(f) the character and past character or behaviour, in particular proven criminal behaviour of the defendant;

(g) whether the defendant has a history of offending while on bail, or breaching Court orders including other orders imposing bail conditions;

(h) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind;

(i) the strength of the evidence and the probability of conviction or otherwise;

(j) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;

(k) any other matter that is relevant in the particular circumstances”.

  1. Section 105 CPA is also relevant as it provides for the type of evidence that may be received in the hearing of a bail application.

Approach to Bail Application

  1. Recently in the bail matter of P v Faleupolu[1] I dealt with an application for bail where I followed the learned CJ Sapolu’s approach in Police v Posala[2] also applied in Police v Barlow[3]..
  2. Posala as noted in Faleupolu followed the NZ Court of Appeal decision of R v Blaikie[4] first adopted in P v Papu.[5] Blaikie later formed s.8 (1) and (2) of the NZ Bail Act 2000.
  3. Papu and Posala followed the test in Blaikie that in dealing with a bail application, the key question for consideration is whether there is just cause for the continued detention of an accused in custody. This test is similarly reflected in s.99 of our CPA.
  4. Posala identified the factors that must be taken into account in considering the question of whether there is just cause for continued detention as follow:[6]
    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. The above replicates s.8(1) NZ Bail Act 2000 identified as the risks NZ Courts must consider if there is just cause for continued detention. Then the NZ provision in s.8(2) then sets out the factors that may be taken into account in determining the risks in s.8(1) and ultimately the question of just cause for detention.[7]
  6. Unlike, the NZ provision, our s.99 CPA as noted by the learned CJ Sapolu in Barlow[8], lumps together the risks and factors to consider. The use of the word must in our s.99 CPA means it is mandatory and therefore stringent compared to the discretionary NZ approach under s.8(2).
  7. Posala and Barlow recognise that it is not just any type of risk that will attract the denial of bail but the risk must be ‘real and significant’. This also mirrors the NZ approach to bail.[9]
  8. The onus of proof lies with the Prosecution. But I also note the reverse onus on the Accused to satisfy the Court on the balance of probabilities where any of the situations set out in s.101 CPA apply. None of these situations apply here.
  9. In Barlow[10] the learned CJ Sapolu, set out the factors to consider in determining whether there is just cause for continued detention which mirrors s.8(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.”
  10. As in Faleupolu, I agree here with the learned CJ Sapolu’s observation in Barlow that this is a sensible approach to adopt to determining the ultimate question of bail or jail pending trial.
  11. The Court is required to carry out a wide reaching enquiry involving looking at the risks set out in paragraph 16 above also reflected in s.99(a) (b) (d) CPA and all relevant factors. At the end of the day, it is a balancing exercise and one that cannot be taken lightly.
  12. I now turn to address the four risks set out in paragraph 16 above and assessing these against the factors in paragraph 21 above and s.99 CPA.

Discussion

First issue: Is there a risk you may fail to appear in Court?

  1. In assessing the risk of failure to appear, the factors the Court must take into account include those relating to the charge such as the nature of the offence, strength of the prosecution’s case and likelihood of a conviction, any previous convictions, absconding and previous failure to answer bail.[11]
  2. These are the factors listed in a), b) and c) in paragraph 21 above and those in s.99(c),(e),(f) (h) (i) CPA. I note (c) and (f) mean the same whilst (e) and (j) replicates each other. Whoever drafted the CPA should have paid due attention to these errors.
  3. It must be noted that the above is not set in concrete as these factors co relate and may also apply to consideration of other risks.
  4. Finau, the counts you face attracts maximum imprisonment penalties ranging from 7 years (1 count), 2 years (2 counts), 1 year (4 counts).[12] So in terms of gravity as reflected in the range of penalty, the offences are serious.[13] Police argue the seriousness of the offences and penalty poses a risk of failing to appear.[14]
  5. However, it is settled law that the gravity of the offence is insufficient in itself to justify a conclusion there is a real and significant risk an accused will not answer to bail.[15]
  6. There is nothing before me to indicate the strength and weaknesses of the Prosecution’s case and likelihood of a conviction. I bear in mind prosecution bears the burden here to satisfy me of this aspect and every other.
  7. But even if convicted, the value of the properties said to be obtained by deception is not substantial. I anticipate however that the totality principle, degree of culpability / criminality would be relevant considerations at sentence.
  8. There is also nothing before me to suggest you would be a flight risk despite Police arguing this is so. In a bail hearing as required under s.105 CPA, evidence must be produced to substantiate there is such risk.[16]Your counsel says you reside here permanently. [17]I believe that is so.
  9. You do have previous convictions for similar offending recorded on 7/09/15 where you were sentenced to 2 months imprisonment followed by 12 months supervision and 40 hours community service. There is also a related conviction for false pretence on 2/10/12. It seems this is the Prosecution’s strongest ammunition. I prefer to deal with this later as it has a bearing on the decision here.
  10. Your previous conviction record also suggests you answered to those charges and present to receive sentence.
  11. As our Courts have said on a number of occasions, the risk of non - appearance can be cured by surrendering of passport, reporting clauses, notification of any attempts to obtain a passport, deposit of cash or surety and any other the Court deems appropriate.[18]As I observed in Faleupolu, Police also have the practice of issuing departure prohibition notices to Samoa Immigration against any accused charged with a crime in our jurisdiction.
  12. I note that since you were charged with these offences in May this year, you have appeared on each occasion. Not once were you issued a warrant of arrest for failure to appear.
  13. For the reasons above and others canvassed in this decision, I am not satisfied that there is a real and significant risk of you will not appear in court to answer these charges.

Second issue: Is there a risk that you would interfere with witnesses or evidence?

  1. In assessing this risk, Posala referred to Adams on Criminal Law[19]where it stated:
  2. Police do not take issue with this and I note there is no proven instances of contact with witnesses. So I conclude there is no such risk.

Third& forth issue: Is there a risk that the accused may offend while on bail and any other matter that would make it unjust to detain you?

  1. The factors in paragraph 20 (d) and (e) and s.99 (d) (f) (g) apply to the third issue and the rest the fourth one.
  2. Prosecution argue there is a high likelihood you would reoffend because you have previous convictions from 2012 to 2016 some of which were for similar offending. Furthermore because of this history, Police say there is a risk of reoffending and the safety of the public is stake especially the victims in the matters alleged in the offences here.
  3. I noted in paragraph 33 above your previous convictions. I note from the court file that the offences in informations D2740/17, D2739/17, D3993/17, D3994/17, D4567/17 where allegedly committed after you were granted bail on 1/08/17.
  4. For the first two, bail was granted on 13/09/17. However the last three informations were filed after bail was granted on 13/09/17.
  5. Be that as it may, as I said in Faleupolu, a primary principal of criminal law is an accused such as yourself is presumed innocent until proven guilty. This principle is 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.
  6. As I said in Faleupolu, where an Accused such as yourself denies the charges 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.
  7. Certainly in New Zealand, this principle recognised under s.25(c) of their NZ Bill of Rights Act 1990 (NZBORA) is built into a bail application and considered in conjunction with the factors in s8 (2) Bail Act 2000 in the overall assessment of just cause for detention.[20]
  8. 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:
  9. In Hereora v Queen[21] the NZ Court of Appeal dealt with an appeal against the denial of bail. The Court there held that the right under the NZBORA including the presumption of innocence and adequate time to prepare a defence were relevant considerations in a bail application. The Court of Appeal also dealt with the important relationship between the NZBORA and Bail Act.
  10. As an accused, you are entitled to have adequate time and facilities available to you to prepare your defence which in my view include having easy access to your lawyer. This is a minimum right recognised under Article 9(4)(c) Constitution. It has been held that further detainment in custody may well hinder this.[22]
  11. But there is a more crucial factor I must consider which bears significant weight in my decision here. This relates to the manner in which Police dealt with you Finau on each occasion you were granted bail. This only became clearer when all charges against you were brought to my attention on 2/11/17 where you sought an adjournment and bail.
  12. On 25/05/17 you were charged with the offence in D1628/17 and remanded in custody for first mentioned on 6/06/17. The matter went through a series of adjournments. Police opposed bail which was initially denied by J Roma. But J Saaga on 1/08/17 later remanded you on bail to 2/11/17 for hearing on the condition that you sign in twice and surrender all travel documents. The total time you spent in custody on this occasion was 9 weeks 5 days.
  13. Then whilst on bail, Police laid the charges in D2740/17 and D2739/17 on 18/08/17. This was meant to be mentioned on 18/08/17 but was actually first called on 12/09/17. According to you, you had gone to sign in when Police arrested you and held in custody for these charges.
  14. Whilst awaiting the first calling of these charges, Police laid another charge on 1/09/17 for an incident said to have arisen on 22/12/16. This is information D2849/17. It was first called for mention on 5/09/17 where J Roma granted bail on the same conditions as those imposed on 1/08/17.
  15. Police instead of releasing you as per your bail, decided to hold you in custody pending the calling of the charges in information D2740 & 2739 on 12/09/17. These charges could have been brought to the Court’s attention to be dealt with together on this occasion instead of further detaining you.
  16. On 12/09/17 these charges were called. Police sought an adjournment to finalise charges. You informed you were still in custody even after bail had been granted by J Roma on 5/09/17. Police opposed bail. I then gave Police until 4pm 12/09/17 to finalise charges and recalled the matter to hear bail the next day 13/09/17.
  17. On that date I granted bail on the conditions that you sign in at the Apia station every Wednesdays and Fridays before 12pm, reside at Vaivase with your parents at all times, a curfew from 6pm to 8am and that you were not to offend whilst on bail.
  18. As later discovered, you were never released as ordered. Instead Police filed on that very day more charges particularised in informations D3993/17 and D3994/17. These charges related to an alleged incident on 10 & 12/08/17 and were used as a basis to further hold you in custody. It was for first calling before J Saaga on 26/09/17 where Police opposed bail which was denied and the matter further adjourned to 24/10/17 to finalise charges.
  19. On 24/10/17 you informed me you were still in custody. Police opposed bail on the grounds noted in paragraph 6 above. On that basis you were remanded in custody pending the hearing of all matters against you on 2/11/17.
  20. As seen from the summary above, when you were granted bail on 1/08/17, you enjoyed at least 18 days of liberty. Then on 18/08/17 Police decided to arrest you on further charges. Another charge was filed on 1/09/17 and called on 5/09/17 where you were released on bail. Police however, decided to still hold you in custody pending the calling of other charges on 12/09/17.
  21. Even when bail was granted on 13/09/17 you were still not released instead two additional charges were brought against you on that very day that were not before me when I considered bail. The deputy registrar remanded you further in custody on those new charges to 26/09/17.
  22. At the time, the Court did not have the benefit of seeing the full file of all charges. But what I did have was advice from the Prosecution, you reoffended whilst on bail. I took this to mean you reoffended after bail was granted on 13/09/17. You were remanded further in custody.
  23. However, having examined the charges against you in full, I note that the charges documented in information D2993 & 3994 that were recalled before me on 24/10/17 related to alleged incidents on 10/08/17 & 12/08/17. An additional count in information D4567/17 was filed on 24/10/17. All these related to incidents which predated the granting of bail on 5/09/17 and 13/09/17. The Court however was led to believe these charges arose post bail. This is a grave cause for concern and one I do not take lightly.
  24. There were a number of options Police could have taken. These included instead of holding Finau in custody, to use the summoning process if there are additional charges additional charges and alerting the Registrar to the fact bail had been granted.
  25. But to hold an accused who was granted bail and conveniently filing charges on the very day of awarding bail to justify further detention is in my opinion, wrong and imports bad faith and abuse of process. It may well expose the Ministry of Police to potential civil claim in torts. I need not remind Prosecution about the adverse repercussions of such claims as evident in the case of Nnamdi v AG[23].
  26. In my opinion, an act of good faith on the part of Police could have averted what we now face. I remind once again to all who appear in Court of their utmost duty not to mislead the Court. The administration of justice demands it.
  27. Accused persons are humans and deserved to be treated as such. Where the plea is not guilty the presumption of innocence is a relevant consideration. Where Police seek further detention on the basis of new charges, then the accused must be brought to Court at the earliest for bail. This goes to the protection of the right to liberty.
  28. A court order granting bail must be complied with as soon as the Accused meets the terms of release, such as surrendering of passport. Failure to comply may well tantamount to contempt of court for disobedience of Court order.
    1. I trust there will not be a recurrence of such conduct and Prosecution is urged to be more vigilant and prosecute matters with fairness, independence and integrity bearing in mind your duty to the administration of justice.

CONCLUSION

  1. In the circumstances, it is in the interest of fairness and justice that bail be granted immediately to you Finau on the conditions imposed on 13/09/17 with variations. The conditions are:
    1. Residence: You are to reside at Faatoia at all times;
    2. Curfew: You are not to go anywhere between the hours of 6.00pm in the evening to 8.00am the next day;
    3. Offending: You are not to re-offend from now until your trial;
    4. Signing: You are to sign in before 12.00pm on Monday, Wednesday and Friday at the Apia Police Station.
  2. Ms Afoa, please relay to Police that any further non-compliance with this bail order will not be tolerated and if they decide to file any further charges arising from incidents pre bail, then they are to consider summoning the accused.
  3. This matter is adjourned for hearing to 10 May 2018 at 10 am.

JUDGE ALALATOA R VIANE PAPALII

[1] P v Faleupolu [2017] WSDC 22 (4 October 2017)
[2] P v Posala [2015] WSSC 92 at para 3. Also see P v Ah Ching [2016] WSSC 31 at para 21
[3] P v Barlow [2017] WSSC 107; also see P v Leleimalefaga [2017] WSSC 127 & P v Pule [2017] WSSC 121
[4] R v Blaikie (1999) CRNZ 122.
[5] P v Papu [2006] WSSC 39
[6]Supra n 1 at paras 15 & 16
[7] See NZ Bail Act 2000.
[8] Supra n 3 at 10
[9] See Blaikie supra n 4
[10] Supra n 3 at para 10
[11] Ibid
[12] This reflects s 99 (e) & (j) CPA which replicates each other
[13]Section 99(h) CPA
[14] Prosecution submissions at para 27 & 28
[15] See Posala, Supra n 2 and Adams on Criminal Law Vol 3 BL 8.03
[16] Also see Ranginui v Police HC Auckland Cri – 2010 092 to 1156, 7 September 2-10 at para 8
[17]Section 99 (a) CPA
[18] See Posala supra n 2
[19]Supra n 15 at para 8.04
[20] But note the exceptions under ss 8(4), 10, 12 & 17 A. Where s(8) (4) applies, the paramount concern is the protection of the victim over presumption of innocence.
[21]Hereora v Queen [2011] NZCA 429 at paras 16, 17 & 18
[22] See Blaikie & Hereora
[23] Nnamdi v Attorney General [2011] WSSC 91

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