Police v Posala [2015] WSSC 92 (31 August 2015)

SUPREME COURT OF SAMOA
Police v Posala [2015] WSSC 92

Case name:	Police v Posala
Citation:	[2015] WSSC 92
Decision date:	31 August 2015
Parties:	POLICE (prosecution) v FERRARI WILLIAM FRANCES POSALA male of Ululoloa and Lalovaea (accused)
Hearing date(s):	28 August 2015
File number(s):	S2776/15-S2779/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused is granted bail on these conditions: (a) The accused’s Samoan and New Zealand passports which have been surrendered to the police will continue to remain in the custody of the police until further order. (b) The accused will reside with his family at Lalovaea until further order. (c) The accused is not to visit Ululoloa or the house he rents at Ululoloa and from which the police had obtained the substances with which he is now being charged. (d) The accused is to report to the Apia CID every Monday and Thursday before 12noon. (e) The accused is to keep away from and not to contact or speak to any of the police witnesses. (f) The accused is to provide two sureties in the sum of $4,000 each to the satisfaction of the Registrar so that if the accused fails to answer to any of his other bail conditions then the sureties will each pay $4,000 into Court.
Representation:	K Hogan and L Tavita for prosecution L R Schuster for accused
Catchwords:	Bail application –risk that the defendant may not answer to bail–risk that the defendant may interfere with the witnesses or other evidence – risk the defendant may offend while on bail – possession of methamphetamine – possession of utensils – possession of marijuana leaves, branches, seeds – possession of ammunitions
Words and phrases:
Legislation cited:	Bail Act 2000 (NZ). S.8
Cases cited:	B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31, R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122 R v Chatha [2008] NZCA 547 R v Payne [Barrett’s Case] [2003] 3 NZLR 638 R v Crichton [2007] NZCA 593 Papu v Police [2006] WSSC 39 Taylor v Police [2013] NZHC 344
Law Text	Adams on Criminal Law vol 3
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S2776/15-S2779/15

BETWEEN

P O L I C E
Prosecution

A N D

FERRARI WILLIAM FRANCES POSALA a male of Ululoloa and Lalovaea.
Accused

Counsel:
K Hogan and L Tavita for prosecution
L R Schuster for accused

Hearing: 28 August 2015

Ruling: 31 August 2015

RULING ON BAIL APPLICATION

Approach to a bail application

1. In Papu v Police [2006] WSSC 39, this Court followed the approach to a bail application set out in the decision of the New Zealand Court of Appeal in R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122 which is also reported as B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31. This approach has been repeated with some significant modifications in s.8 of the Bail Act 2000 (NZ). It is therefore important to refer to s.8 of the Bail Act 2000 ( NZ) which, insofar as relevant, provides:
   • “(1) In considering whether there is just cause for continued detention, the Court must take into account –
     • (a) whether there is a risk that –
       • (i) the defendant may fail to appear in Court on the date to which the defendant has been remanded; or
       • (ii) the defendant may interfere with witnesses or evidence; or
       • (iii) the defendant may offend while on bail; and
     • (a) any matter that would make it unjust to detain the defendant.

(2) In considering whether there is just cause for continued detention under subsection (1), the Court may take into account the following:

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

(b) the strength of the evidence and the probability of conviction or otherwise:
(c) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:
(d) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:
(e) whether the defendant has a history of offending while on bail, or breaching Court orders, including orders imposing bail conditions:
(f) the likely length of time before the matter comes to hearing or trial:
(g) the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:
(h) any other special matter that is relevant in the particular circumstances”.

2. The provisions of s.8 of the Bail Act 2000 (NZ) are discussed in Adams on Criminal Law vol 3, BL 8.01 – BL 8.12. Counsel who practise in the criminal law area will greatly benefit from studying in full that discussion.
3. For the purposes of the present bail application, I would refer to BL 8.01 of Adams on Criminal Law vol 3 where the learned authors state:
   • “The Court must determine whether there is just cause to detain the defendant in custody on the basis of the risk of one or more of the occurrences listed in subs (1); ie that the defendant may not answer to bail, may interfere with the witnesses or other evidence, or may otherwise offend while on bail; having also considered any particular matters making detention unjust...
   • “The section does not specify the degree of risk to be established. Between 2007 and 2008 the section required the prosecution to establish a ‘real and significant’ risk of the relevant consequence; the current wording has been returned to what was in force until the 2007 amendments. High Court Judges were divided as to whether the inclusion of the words ‘real and significant’ affected the test to be applied.... It has been held that the earlier wording has made no difference and the prosecution must still establish a real and significant risk of a relevant consequence before refusal of bail is justified: see Pulete v Police HC Auckland CRI – 2008 – 044 – 7515, 24 February 2009, [9]; Beckham v Police HC Auckland CRI – 2009 – 404 – 258, 18 August 2001, at [13] and Ranginui v Police HC Auckland CRI – 2010 092 – 1156, 7 September 2010, at [8].
   • “The determination of whether a risk exists requires ‘ a proper inference to be drawn from proved facts; as opposed to the Court engaging in speculation or guesswork about the possibility of a risk’... Any risk established must be measured against any countervailing consideration in subs (1) (b) ... If it is clear that bail should be refused because there is a substantial and unacceptable risk of one of the subs (1) consequences eventuating, there is no need to consider the subs (2) criteria...
   • “The Court must consider all relevant factors but the respective weights will depend on the circumstances of the case...
4. The learned authors of Adams on Criminal Law then continue on to say:
   • “Subsection (2) provides that in considering whether there is just cause for continued detention under subs (1) the Court may take into account the additional matters set out in subs (2). There is an apparent division of opinion in the High Court as to whether this wording means the Court may (but not must) consider the matters set out in s.8 (2) only insofar as they affect the assessment of the risks in s.8 (1), or whether the Court may have regard to the s.8 (2) matters separately from assessing the s.8 (1) risks and therefore possibly conclude that one or more matters set out in subs (2) provides a ‘just cause’ for detention, even though none of the primary concerns in subs (1) would justify detention... Neither the likely length of time before the matter comes to hearing or trial (s.8 (2) (f)) nor the possibility of prejudice to the defence in the preparation of the defence of the defendant is remanded in custody (s.8 (2) (g)) have any apparent logical bearing on any of the s.8 (1) risks. Indeed....the prospect of a lengthy delay before the trial may require bail to be granted despite the existence of a risk of the kind set out in s.8 (1). The practical effect of the different readings of s.8 (2) may be limited because as noted in Wilson v Police HC Auckland CRI – 2005 – 404 – 63, 2 May 2005 it will be rare that some subs (2) factor would be of sufficient seriousness to justify the refusal of bail without there also being a real risk of flight, interference with witnesses or reoffending”.

Background

5. The background to this bail application is provided in the affidavit of the accused and in the submissions of counsel for the prosecution which were presented orally. It shows that the accused is 29 years and is an architect by profession. He was born in New Zealand and has a New Zealand passport which has expired and has been surrendered to the police. He also has a Samoan passport which has been surrendered to the police.
6. The accused’s father is a Samoan and lives in Samoa. The accused says that all of his family is here in Samoa and he has no intention of travelling anywhere if released on bail. The accused’s family home is at Lalovaea but he also rents a house at Ululoloa.
7. According to the submissions by counsel for the prosecution, at 5:00am on Saturday morning 22 August 2015 the police undertook a raid of the house rented by the accused at Ululoloa. The police found four adults in the house. They also found in one of the rooms one plastic bag containing 3.1 grams of methamphetamine, one plastic bag containing 0.1 gram of methamphetamine, one plastic pipe, one stainless steel pipe, loose marijuana leaves weighing 2.6 grams, twenty three small marijuana branches without leaves weighing 0.4 grams, forty three marijuana seeds, and ammunitions. The submissions by counsel for the prosecution suggest that the accused arrived at the house at Ululoloa early Saturday morning while the police were there and that the police understand that the accused usually resides at the Ululoloa house with the adults found by the police inside the house.
8. The accused and the four adults found by the police in the Ululoloa house have been jointly charged by the police with five different counts of (a) possession of methamphetamine, (b) possession of utensils, (c) possession of loose marijuana leaves and twenty three small marijuana branches without leaves, (d) possession of forty three marijuana seeds, and (e) possession of ammunitions. There was no dispute that the narcotic related charges are serious charges and carry heavy maximum penalties.

Bail application

9. On Sunday 23 August 2015, the accused and three of the adults who were found by the police in the Ululoloa house were remanded in custody by a deputy registrar for mention on Monday 7 September 2015. One of the four adults found in the Ululoloa house was remanded on bail to the same mention date.
10. The accused has now applied for bail. The grounds of his bail application are (a) he is bailable at the discretion of the Court because of the nature of the offences with which he has been charged, (b) he is not a flight risk because his family all reside and live in Samoa and he has a job as an architect in Samoa, (c) there is no risk that he will offend while on bail as he has no previous criminal conviction but has only been arrested once for a traffic offence, (d) as an architect he is currently obligated under a number of work contracts to perform a number of architectural designs and there is a risk that he may lose those contracts and clients if his incarceration continues, and (e) he vehemently denies the allegations and charges against him.

Opposition to bail application

11. The police do not oppose the bail application on the ground that there is a risk that the accused will offend if granted bail. This is because there is no evidence of such a risk as the accused has no previous criminal conviction record in Samoa but only one traffic conviction in New Zealand. However, the police opposes bail being granted on the ground that there is a risk of the accused absconding if granted bail and that there is also a risk of the accused interfering with witnesses.
12. In support of the first ground that the accused is a flight risk, counsel for the prosecution submitted that the accused is facing serious charges which carry heavy maximum penalties. There is therefore a strong incentive for the accused to flee the jurisdiction. The accused also appears to have connections with New Zealand as he was born in New Zealand and the police do not understand the accused to have children residing here in Samoa.
13. In support of the second ground that there is a risk that the accused will interfere with witnesses, counsel for the prosecution submitted that the police investigation into this matter is still at an early stage as the police raid on the house at Ululoloa was only undertaken on 22 August and this case is scheduled for mention on 7 September.
14. Counsel for the prosecution further submitted that if the Court is inclined to grant bail then an additional condition requiring the accused to provide sureties in the sum of $20,000 be imposed. Counsel further requested that the accused be required to pay into Court a sum of $20,000 which will be forfeited if the accused fails to answer any of his bail conditions. However, Ms Hogan for the prosecution further said that she has only just started practising in Samoa and is not yet familiar with the way bail applications are dealt with here. She told the Court that she prefers to leave this particular matter concerning sureties and a monetary payment to the discretion of the Court.

The issues

15. As it appears from s.8 of the Bail Act 2000 (NZ) and R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122, also reported as B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31, the three primary considerations to be taken into account when dealing with a bail application are whether there is a risk that (a) the accused may fail to appear in Court on the date to which he has been remanded, (b) the accused may interfere with witnesses or evidence, and (c) the accused may offend while on bail.
16. In opposing bail, counsel for the prosecution, as earlier mentioned, does not rely on whether there is a risk that the accused may offend while on bail. What counsel claims is that there is a risk of the accused absconding while on bail and of interfering with witnesses.

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

17. In dealing with the question of whether there is a risk that the accused may fail to appear in Court on the date to which he has been remanded, the risk must be a ‘real and significant’ one and not just any fanciful or hypothetical risk. The prosecution must establish a real and significant risk: Adams on Criminal Law vol 3, BL 8.01. The Court is required to draw inferences from proved facts but not to engage in speculation or guesswork: Adams on Criminal Law vol 3, BL 8.01.
18. In Adams on Criminal Law vol 3, BL 8.03, the learned authors state:
    • “Bail may be refused where a substantial risk exists: R v Chatha [2008] NZCA 547 at [69]. In assessing the risk that a defendant may fail to appear for trial or for the continuation of the trial, the Court must have regard to a number of factors including the likely penalty which would follow any conviction, the nature of the offence, and facts relating to the particular defendant. As the Court of Appeal observed in B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31 at [11]:
      • ‘“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 and having associations with an overseas country. Experience suggests that certain crimes – drug importing being the most obvious – present a higher risk of such behaviour.’
    • “Cases since B v Police (No 2) have recognised that bail is now regularly granted to persons charged with very serious offences, and so the gravity of the offence is not of itself enough to justify a conclusion that there is a real and significant risk that the accused person will not answer bail: Mills v Police 8/7/08 Woodhouse J HC Rotorua CRI – 2008 -463 – 43 at [7]. The Court may therefore also take into account the strength of the prosecution case (and therefore the likelihood of conviction) in assessing the risk of non-appearance, as well as the increasing risk of flight as the time of the trial approachs: R v Payne [Barrett’s Case] [2003] 3 NZLR 638, also reported as R v Payne (2003) 20 CRNZ 189 (CA)...’
    • “The risk of non-appearance must be judged in the light of the defendant’s prior history, including previous absconding...previous offending and previous failures to answer bail including police bail...’”
19. Further on in BL 8.03, the learned authors of Adams on Criminal Law continue by saying:
    • “Personal factors such as family or residential ties may affect the likelihood a defendant will not appear in Court as required. The risk of absconding may be minimised by imposing conditions such as regular reporting to police, the surrender of any passports held and notification of possible issuers of travel documents..., the lodging of a cash sum: Zhang v Police 30/1/04, Rodney Hansen J HC Auckland CRI – 2003 – 404 398, or the provision of a recognizance from a surety: R v Crichton [2007] NZCA 593, at [11]”.
20. It is clear from the passages cited from Adams on Criminal Law vol 3, 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 the 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 the police, notification f possible issuers of travel documents, sureties, or a monetary payment into Court.
21. With this bail application, the accused does not have a history of previous criminal offending, or of absconding, or of previous failure to answer bail. I am also doubtful at this stage about the strength of the case for the prosecution against the accused. The information provided by counsel or the prosecution is that when the police raided the house rented by the accused at Ululoloa at 5:00am in the morning, they found in a room methamphetamine with a total weight of 3.2 grams, utensils, marijuana substances, and ammunitions. The police also found four adults in the house. The accused was not one of them but the police understand that the accused usually resides in the house with those four adults. When the accused arrived at the house on the morning of the raid, the police were still there. The accused denies the allegations and charges against him but I suppose the police are going to say that the Ululoloa house is rented under his name and he usually resides there with the four adults found by the police in the house. On the basis of this information, the police appear to have a prima facie case for possession. But whether the drugs belonged to the accused or he had knowledge of them is not clear. At this stage, the accused may therefore have a possible defence.
22. In respect of personal factors such as family or residential ties, the accused is New Zealand born and may have connections in New Zealand. He says, however, that all of his family resides here in Samoa. His family home is at Lalovaea. He is also an architect and practises his profession here in Samoa. He has also surrendered his Samoan passport and an expired New Zealand passport to the police. A reporting condition and other bail conditions suggested by counsel for the accused may also be imposed to minimise the risk of flight.
23. From the above discussion, I would assess the risk of the accused failing to appear in Court if granted bail to be less than real and significant.

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

24. In dealing with the question of whether there is a risk that the accused will interfere with witnesses or evidence if granted bail, again such a risk must be ‘real and significant’. In Adams on Criminal Law vol 3, BL 8.04, the learned authors state:
    • “Bail will not be granted if there is a real and substantial threat that the defendant will wrongly interfere with the course of justice by influencing witnesses or interfering with evidence, even though other factors might favour bail...Something more than a nebulous risk of such interference must shown: R v Hines 29/11/02, CA 384/02; although the threshold may be low. In Taylor v Police [2013] NZHC 344, at [14], it was held that where the defendant was on good terms with the complainants and their families and was facing serious charges the Court could infer a risk of the defendant seeking to influence the witnesses. Clearly the risk is lower if all relevant witnesses are police officers: Nguyen v Police 7/4/06, Frater J HC Auckland CRI – 2006 – 404 – 71; or where the witnesses are in a witness protection scheme; ... or where the critical evidence is that of intercepted communications... It is common for bail to be granted with conditions forbidding contact between the defendant and witnesses ... and/or with restrictions on where the defendant may live or on travel by the defendant so as to minimise the possibility of deliberate or accidental contact between the defendant and witnesses. Bail should not be refused because of the risk of such accidental contact... Bail may be refused if restrictive conditions may not sufficiently limit the risk of interference...
25. The learned authors of Adams on Criminal Law vol 3, BL 8.04 then continue on by saying:
    • “In assessing the risk of interference, the Court should consider any proven instances of contact with witnesses; ... as well as any prior convictions for offences against the administration of justice... The Court may consider the possibility that the defendant may procure others to influence witnesses ... However, this risk is likely to be lower than the risk of interference by the defendant if granted bail ...”
26. At this stage, it would appear that most of the witnesses for the prosecution will be police officers particularly the police officers who were members of the police party who carried out the raid at the Ululoloa house. The scientist who will carry out the scientific tests to determine the identity of the substances obtained by the police from the raid is also likely to be called by the prosecution. It is difficult to see any other potential witness. But if there is any other potential witness, I would not expect the police to disclose his/her name to the defence at this early stage of their investigation. The risk of the accused interfering with witnesses who are police officers and a scientist would be relatively low. Likewise, the evidence. I would expect the substances obtained by the police from their raid to have been safely locked away in the exhibits room in the police station by now.
27. I would therefore assess the risk of the accused interfering with witnesses or evidence as less than real and significant.

Additional consideration

28. It is also of relevance that the cases set down for hearing before this Court are now up to March 2016. The accused has been in custody since 23 August 2015. If he is to remain in custody until the hearing of this case, it would mean that he would be in custody for about seven months until mid March 2016 which would be the earliest time for his case to be heard as he denies the charges against him.

Resolution

29. I have decided to grant bail to the accused. This will include the usual bail conditions of surrendering travel documents, place of residence, and reporting to the police. I have considered the application by counsel for the prosecution for an additional bail condition of sureties or payment of a monetary deposit into Court. In the circumstances of this case, I have decided to order only sureties but not payment of a monetary deposit into Court. It is rare in the context of Samoa to order an accused person to pay a monetary deposit into Court as a bail condition. But this does not mean that the Court will not order an accused to pay a monetary deposit into Court where it is appropriate to do so.

Conclusion

30. The accused is granted bail on these conditions:
    • (g) The accused’s Samoan and New Zealand passports which have been surrendered to the police will continue to remain in the custody of the police until further order.
    • (h) The accused will reside with his family at Lalovaea until further order.
    • (i) The accused is not to visit Ululoloa or the house he rents at Ululoloa and from which the police had obtained the substances with which he is now being charged.
    • (j) The accused is to report to the Apia CID every Monday and Thursday before 12noon.
    • (k) The accused is to keep away from and not to contact or speak to any of the police witnesses.
    • (l) The accused is to provide two sureties in the sum of $4,000 each to the satisfaction of the Registrar so that if the accused fails to answer to any of his other bail conditions then the sureties will each pay $4,000 into Court.
      

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CHIEF JUSTICE