Ulugia v Police [2010] WSSC 184 (5 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

PITA ULUGIA
of Letogo and Togafuafua, Apia, Samoa
Appellant

AND:

POLICE
Respondent

Counsels: Raymond Schuster for the appellant
Precious Chang for the respondent

Ruling: 5th August 2010

RULING OF THE COURT

1. The appellant and others were on the 6th April 2010 convicted by assessors for the offence of manslaughter. On the 30th June 2010 he was sentenced to 4 years and 6 months imprisonment. His appeal against conviction and sentence will likely be heard during the September 2010 session of the Court of Appeal. He has filed an application for bail pending the determination of his appeal. The application is opposed by the prosecution.

2. When the prosecution opened its case to the assessors on the charge of murder it was relying upon both subsections 1 and 2 of section 23 of the Crimes Ordinance 1961. The prosecution was advancing its case on the several alternative basis in relation to each accused. One was that the accused was guilty as a principal party in terms of section 23 (1) (a). Another was that the accused aided, abetted or incited one of the other accuseds in terms of section 23 (1) (b), (c) or (d). Another was that all the accuseds formed a common intention to assault the deceased and that it ought to have been known that causing the death was a probable consequence of assaulting the deceased for the purposes of section 23 (2).

3. During the course of the trial, counsel told the court, the prosecution will pursue the charge of murder under section 23 (2) only.

Notice of Appeal

4. Section 164K Criminal Procedure Act 1972 provides to a convicted person the right to appeal against conviction and sentence to the Court of Appeal.

5. The grounds of Appeal against conviction are that there was an error of law in that:

(a) the judge in his summing up did not put the appellant's case to the assessors separate from the others defendants in view of the facts and elements of the charge following the Court of Appeal of Samoa case of A-G v. Alaimoana Kolio & others (unreported) 19/9/2008.

(b) the verdict of not guilty of murder but guilty of manslaughter was unreasonable or cannot be supported having regard to the evidence.

(c) that on any ground there was a miscarriage of justice.

6. The grounds of appeal against sentence are:

(a) the sentence imposed was manifestly excessive given the circumstances of the case;

(b) the sentence does not reflect the nature of the involvement of the appellant in the circumstances of this matter and is a miscarriage of justice;

(c) the sentence is not in line with Samoa's international obligations under the Convention on the Rights of the Child ratified by Samoa on the 11th November 1994.

Granting of Bail Pending Determination of Appeal

7. Grant of bail to an appellant is governed by section 164C Criminal Procedure Act. That section provides:

(1) "The Court of Appeal or the Judge who presided at the trial in the Court below may, if the Court or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the Court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody only under the conviction to which the appeal relates".

(2) ...

(3) ...

8. Before his conviction and the imposition of the custodial sentence, the appellant was in his final year at Samoa College; described by his School Principal in a written testimonial attached to the Probation Reprot as an:

"Average, student with potential to achieve pursued goals?

Counsel for the appellant contended the appellant has the potential to secure a scholarship to further his studies overseas, an opportunity which should not be denied to the appellant by confining him to custody. Although his appeal application will be determined during the September 2010 sitting of the Court of Appeal, his absence from class and study for a spell of about two months is a significant vital period with irreparable damage impacting adversely on his future academic life should he succeed in his appeal.

9. Counsel for the prosecution on the other hand contended that based on the decision in A-G v. Alaimoana Kolio & others there was no error of law and there was undisputed evidence to support a conviction in manslaughter. There is, the prosecution argued, no reasonable prospect of the appeal succeeding.

Discussion

10. Section 164C Criminal Procedure Act 1972 in its very general wording does not provide guidelines to assist the court in considering bail applications of those in custody after convictions. The granting of bail after conviction, is a totally different proposition from the granting of bail pending trial, at which point the presumption of innocence still prevails because a convicted person's right of appeal does not revive the pre-conviction presumption of innocence.

11. It is noted in Halsbury Volume 11(2) paragraph 904 that granting of bail pending the determination of appeal is a power which is rarely exercised. Exceptional circumstances must be shown to exist before bail will be granted. It seems therefore that on an application for bail pending appeal there is a reversal of the usual onus of proof in criminal cases; that is the onus is on the applicant to show cause, why bail should be granted.

12. I agree with counsel for the appellant that this court should not appear to pre-empt the ultimate decision of the Court of Appeal by indulging into a consideration of the apparent strength of the grounds of appeal. It must be stressed however, as the prosecution contended, the appellant did not deny being a member of the group which assaulted the deceased and his friend. What was stressed by his counsel to the assessors was the appellant's degree of involvement. He was nonetheless seen by one eyewitness assaulting the deceased who was lying motionless on the ground.

13. Bearing in mind that the grant of bail to convicted persons appears to be regarded as an exception rather than the rule and bearing in mind that the onus is on the appellant to show cause why bail should be granted; it seems to me, bearing also in mind that the appeal application will be determined next month, as well as the nature the defence, that the application for bail should be declined.

Conclusion

The application for bail is accordingly denied.

JUSTICE VAAI