Papu v Police [2006] WSSC 39 (10 July 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

LOI LOGAI PAPU and
VAVE SIIFUA TALIMATASI FAISAUVALE
males of Faleatiu.
Accused

AND

POLICE
Informant

Counsel: Attorney General B P Heather-Latu and P Chang for informant
M C Leung Wai for both accused

Hearing: 05 July 2006
Judgment: 10 July 2006

JUDGMENT OF SAPOLU CJ

Nature of proceedings

In these proceedings the Court is concerned with a bail application by the two accused Loi Logai Papu (Loi) and Vave Siifua Talimatasi (Vave) both being planters from the same family in the village of Faleatiu. The accused Loi aged 27 years is charged with six charges, namely, (a) one charge of being party to murder, (b) one charge of being party to attempted murder, (c) one charge of being party to arson, (d) another charge of being party to a different arson, (e) one charge of being armed with a dangerous weapon, and (f) one charge of discharging a firearm. The accused Vave aged 23 years is also charged with six charges, namely, (a) one charge of being party to murder, (b) one charge of being party to attempted murder, (c) one charge of being party to arson, (d) another charge of being a party to a different arson, (e) one charge of being armed with a dangerous weapon, and (f) one charge of discharging a firearm. All charges arose from the same incident.

History of proceedings

The incident from which the present charges arose occurred on New Year’s Eve, 31 December 2005 at the village of Satapuala. As claimed by the police, it resulted in the death of one man and six other people being injured. Two houses belonging to two different families of the village of Satapuala were also burnt down. The two accused and three co-accused, all from the same family in the neighbouring village of Faleatiu, were brought to the police on 6 January 2006 and remanded in custody in connexion with this incident. All five accused were subsequently charged with murder. Other joint charges relating to attempted murder and arson were also laid by the police. All the accused entered not guilty pleas to the charges.

On 6 February 2006 all of the accused being represented by the same counsel made a joint application for bail. I denied the application on 9 February setting out my reasons for doing so in a written decision. The trial of all the accused on the joint charge of murder alone was then set down for June 2006. This is because of the proviso to s.31 of the Criminal Procedure Act 1972 which provides that no information charging murder shall be tried with any other information. That trial commenced on Monday, 12 June before Vaai J and a panel of Assessors and ended on 28 June. As the Court was informed from the bar by the Attorney General, after the evidence for the prosecution was adduced and in particular the evidence by the three main witnesses for the prosecution, the present accused indicated that they had changed their instructions to their counsel. That resulted in the withdrawal of counsel from continuing to represent the present accused who were then removed from the trial which continued with the remaining three co-accused who were subsequently found guilty of murder. Because of this development, the police have laid a fresh information jointly charging only the present accused with being parties to murder. To this fresh information the accused, who are now represented by Mr Leung Wai, have not entered a plea but are now re-applying for bail.

Bail application

In presenting the present bail application on behalf of the accused, Mr Leung Wai relied on four main grounds. These are (a) the case by the prosecution against the accused is weak, (b) the risk of flight is minimal if the accused are granted bail, (c) there is no possibility of offending if bail is granted, and (d) there will be a lengthy delay in awaiting the trial of the accused.

With regard to the first ground that the case by the prosecution against the accused is weak, counsel submitted that the accused have maintained from the beginning of this matter, as shown from their cautioned statements made to the police, that they were not part of the group of men who were involved in the incident with which they have been charged. It was further submitted that there is no evidence from copies of the prosecution’s trial documents provided to counsel for the accused to show beyond reasonable doubt that the accused were present or involved in the offending with which they have been charged. It was also submitted that whilst the name of the first accused Loi appears in the statement of the prosecution witness Solialofi Tauailoto, the explanation given by that witness as to why he believed the first accused was involved in this incident was because the leader of the group of men said to be involved had mentioned his name. Counsel claimed this is hearsay. As to the second accused Vave, counsel submitted that the same witness Solialofi Tauailoto in his statement refers to that accused as having a paralysed right hand which is not correct.

As for the second ground that the flight risk is minimal if the accused were granted bail, counsel submitted that the accused are Samoan citizens and are unemployed. It was also submitted that the accused are willing to comply with any reasonable bail conditions and will also be able to provide sureties if required.

In respect of the third ground, counsel submitted that except for the first named accused, the second named accused has no previous convictions so that the possibility of offending while on bail is minimal. The accused could also be ordered to stay away from the village of Faleatiu to avoid any fear of tampering with prosecution witnesses. Both accused have families they can stay with elsewhere.

With regard to the fourth ground, counsel submitted that if a trial date is set now, the trial will not be held until towards the middle of next year. But the accused have been in custody since 6 January 2006. That would mean the accused would be in custody for about eighteen months before their next trial. However, when counsel was asked if he would be available if the next trial of this matter is set for August, that is next month, he replied yes.

Counsel for the accused in support of the grounds upon which he relied for his bail application cited Hubbard v Police [1986] 2NZLR 738 a decision of Chilwell J in the High Court of New Zealand.

Opposition to bail application

In opposing the bail application, the Attorney General on behalf of the informant relied on essentially six grounds. These are (a) the seriousness of the charge of being party to murder which carries a mandatory statutory penalty of life imprisonment as well as the gravity of the total offending with which the accused have been charged, (b) the prosecution has a very strong case against the accused, (c) risk of tampering with key prosecution witnesses and protection of those witnesses, (d) integrity of the trial process, (e) risk of the accused absconding if granted bail, and (f) public safety.

With regard to the first ground, the Attorney General submitted that apart from the very serious nature of the joint charge of being party to murder against both accused, the gravity of their total offending when considered collectively and individually is also very serious. As a result of the incident, which gave rise to these charges, one man was shot dead, three children were shot at, and two houses were burnt down.

As for the second ground, the Attorney General submitted that the prosecution has an extremely strong case. It was pointed out that at the murder trial that was held from 12 to 28 June 2006, the present accused were clearly and positively identified by eye witnesses prior to their decision to change their instructions to counsel representing them and leading to their removal from the trial. The remaining three accused were all found guilty of murder.

In relation to the third ground, it was pointed out that the three youths who were victims in this incident are the key witnesses for the prosecution. They have been kept in hiding under police protection because of credible fears concerning their safety from the accused and their family. It was also pointed out that it has twice been necessary to relocate these youths since they were taken into hiding under police protection as a result of certain incidents that have taken place which involved threats to their immediate families and leaks about their whereabouts. From the statements made by two of the youths to the police and the affidavit of a senior police officer, it appears that when one of the youths was returned to his home at Satapuala, his father received a phone call threatening the youth’s life and his family. The youth concerned was immediately taken away from home of his family by the police for safety. The family of the youth was also threatened that once the accused (this must be all five accused jointly charged with murder) are released from custody they will be coming to burn down their house. Furthermore, when the three youths were staying with a family near Apia for their protection, they were seen on the road by certain relatives of the accused who attempted to approach them. The youths fearing for their lives ran away and were then immediately relocated by the police.

In respect of the fourth ground, it was submitted that there is a high risk that the three youths who are the surviving victims and are key witnesses for the prosecution will not give evidence or continue to cooperate with the police if the accused are granted bail. This is because the youths are very scared of the accused. At present they are continually being moved around for their safety.

As for the fifth ground, it was submitted that that there is a real risk that the accused will not appear at their trial if bail is granted and that will impose a heavy and dangerous burden on the police in trying to find and arrest them.

Finally, it was submitted in relation to the sixth ground that relations between Satapuala, the village of all the victims of this incident, and Faleatiu, the village of all the accused, are still hostile, delicate and sensitive and the release of the present accused could inflame the situation given the recent murder convictions of the co-accused who had been jointly charged with the present accused for murder.

On the question of an early trial date, the Attorney General informed the Court that the prosecution is willing to have its cases set for trial in August adjourned so that this matter can be given an early trial date. This is to meet the concern that if the accused are not granted bail that would mean they would be kept in custody until towards the middle of next year before their trial can be held.

Relevant law

As the accused are charged with murder and other serious crimes which carry maximum penalties of more than two years imprisonment, they are not bailable as of right but at the discretion of the Court under s.71 (5) of the Criminal Procedure Act 1972. Section 71(5), however, provides no guidance as to how that discretion is to be exercised. I have therefore decided to refer to New Zealand authorities on the exercise of the Court’s discretion on bail applications.

In Hubbard v Police [1986]2 NZLR 738, a case cited by counsel for the accused, Chilwell J in the High Court of New Zealand said at p.739:

"The Court can only proceed on the information which it has. For the purpose of determining the matters I have to determine. I rely upon the outline of the facts as given by counsel for the Crown.

There are two main tests involving factual questions which have to be considered by the Court in determining whether to grant or refuse bail. They are, first the probability or otherwise of the defendant answering to his bail and attending at his trial, and, secondly, the public interest. So far as the first factor is concerned, the criteria to be considered include:

(i) The nature of the offence with which the person is charged and whether it is a grave or less serious one of its kind.

(ii) The strength of the evidence, that is, the probability of conviction or otherwise.

(iii) The seriousness of the punishment to which the person is liable; and the severity of the punishment that is likely to be imposed.

(iv) The character and past conduct or behaviour of the defendant.

(v) Any other special matter that is relevant in the particular circumstances to the question of the likelihood of the accused appearing or not appearing.

Public interest criteria include:

(i) How speedy or how delayed is the trial of the defendants likely to be?

(ii) Whether there is a risk of the defendants tampering with witnesses.

(iii) Whether there is a risk that the defendant may re-offend while on bail.

(iv) The possibility of prejudice to the defence in the preparation of the defence.

Any other special matter that is relevant in the particular circumstances to the public interest"

In the more recent case of R v Blaikie (1999) 17 CRNZ122, Blanchard J in delivering the judgment of the New Zealand Court of Appeal on an appeal against refusal of bail in the High Court said at p.125:

"[8] The seriousness of the charge faced will not in itself provide a justification for refusal of bail. Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also that there is something additional which favours detention of the accused in the public interest, and that combination of factors is not outweighed by considerations favouring bail. The societal interest must be unable to be met by the granting of bail upon terms as to residence, reporting to police, curfew, non-association, travel restrictions and the like.

[9] Having noted that the charge faced is serious, the Court will need to be satisfied concerning the strength of the prosecution case for it would be wrong in principle to cause an accused to be held in custody pending trial if the case appears weak.

[10] Matters which will provide grounds for not granting bail when the accused faces an apparently strong case are the likelihood that the accused:

(a) Will offend while on bail (past criminal history, including any previous breach of bail, being the focus of attention along with anything known about the accused’s criminal associations); or
(b) Will abscond or otherwise fail to answer bail at trial or when earlier required to make a further appearance; or
(c) Will seek to interfere with witnesses in the case with a view to deterring them from giving evidence or otherwise influencing their testimony

[11] The seriousness of the charge faced is particularly relevant to the possibility of the failure to answer bail. The more serious the charge and the heavier the potential penalty hanging over the accused, the greater is the incentive for the accused to try to abscond, particularly if facing a strong case...The administration of justice can be made to look foolish in the eyes of the public, and correspondingly devalued, when absconding occurs after bail is granted, as of course it does also when a bailed accused commits a crime.

[12] Another important consideration is the likely length of the detention before trial. Where it is unlikely to occur within a few months the delay will be a factor favouring the granting of bail but it is not in itself determinative.

[13] The Court should have regard also to the need of the accused to have access to defence counsel in order to prepare for trial and any apparent difficulty of doing so from prison in a particular case (see s.24(d) of the Bill of Rights which provides for the right to adequate time and facilities to prepare a defence).

[14] It is the task of the Judge hearing a bail application to balance these various factors, giving due weight of course to the Bill of Rights guarantees, and to form a judgment upon whether bail should be granted and if so, the conditions to attach to it."

Law applied to the facts

In applying the legal approach and principles which are relevant to the exercise of discretion in a bail application, I have in mind the approach and principles set out in R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122. Where there is an inconsistency between the approach in that case and the approach stated in Hubbard v Police [1986] 2 NZLR 738, I propose to follow the approach in R v Blaikie.

The crime of murder with which the accused are charged is a most serious crime and carries the mandatory statutory penalty of life imprisonment. Apart from that, the accused are also charged with a number of other offences including the serious crimes of attempted murder and arson which carry maximum penalties of lengthy terms of imprisonment. The gravity of the total offending alleged against the accused collectively and individually is very serious indeed. Perhaps what the Attorney General says in her written submission that the alleged offending in this case is one of the worst in the history of Samoa is not out of tune.

Even though it is undesirable at this stage to traverse in detail the case by the prosecution against the accused, it would be helpful for the purpose of a bail application which is opposed if the prosecution provides a summary or outline of the facts of its case in order to assist the Court in assessing its strength. In this case, I am satisfied from the material put before me that it has been demonstrated that the prosecution at this stage has a strong case. At least I am not able to say that it is weak. From the submissions of counsel for the accused, it appears that what the accused are claiming is that they were not part of the group of men who were involved in the incident with which they have been charged. This suggests that the accused are likely to rely on alibi as a defence. The Attorney General for the informant on the other hand informed the Court that at the joint murder trial of the present accused and three other co-accused, the present accused were clearly and positively identified by eye witnesses prior to their to change their instructions to counsel who were representing them and their co-accused. I have also perused the statement, produced by present counsel for the accused, of the witness Solialofi Tauailoto who is one of the three youths who are the surviving victims in this alleged incident. It is clear from that statement that Solialofi is claiming that he had more than one opportunity to observe the accused Loi at very close quarters during the alleged incident. I have also not been able to find anything in the statement by Solialofi to show that he did not know the accused Loi prior to this incident. I was also informed from the bar by the Attorney General that the three co-accused who were jointly charged with murder with the present accused were found guilty of murder and are now serving the mandatory penalty of life imprisonment. Such a verdict cannot be evidence of a weak case by the prosecution even against the present accused.

I am also satisfied on the material put before me that there is a likelihood or significant risk that the accused will not answer to their bail at trial if they are granted bail. The charge of murder is very serious indeed. The gravity of the total offending alleged against the accused is also very serious. The penalty for murder is life imprisonment and the maximum penalties for the other offences such as attempted murder and arson are lengthy terms of imprisonment. Those factors when combined with the apparent strength of the prosecution’s case at this stage increases the risk and likelihood that if the accused are granted bail they will not answer to their bail at trial. If that happens, counsel for the informant expressed grave concern that it will impose a heavy and dangerous burden on the police to find and arrest them.

I am also satisfied on the material put before me that there is a likelihood that if the accused are granted bail they will seek to interfere with the three youths who are the victims and key witnesses for the prosecution with a view to deterring them from giving evidence or influencing their testimony. The youths concerned are very scared of the accused and their co-accused and they are being kept in hiding under police supervision for their safety. They have also been moved around for their protection.

The family of one of the youths has also been threatened that once the accused are released from custody they will burn down their house. Whether that is only scare tactics not enough to constitute a likelihood that the accused will offend if granted bail, it does not inspire confidence to grant bail particularly when such a threat is considered together with other factors.

The material placed before me also show that relations between Satapuala, the village of the victims, and Faleatiu, the village of the accused, are still hostile, delicate and sensitive. There is still tension between the two villages from the time the alleged incident occurred. It is feared that a release of the accused from custody, especially soon after their co-accused were found guilty of murder, could inflame what is still a hostile, delicate and sensitive environment. The safety of the public is a relevant factor in the consideration of a bail application.

As for the concern about a possible lengthy pre-trial delay whilst the accused are detained in custody to await their next trial, I have decided to set this case for trial next month, that is August. Counsel on both sides have indicated their availability at that time and the Attorney General has indicated her willingness to adjourn some of the criminal prosecutions set for trial in August to make room for this case to proceed to trial.

In all the circumstances, I have decided in the exercise of my discretion to deny the bail application. Bail is accordingly denied.

CHIEF JUSTICE