Police v Ah Ching [2016] WSSC 31 (11 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Allen AH CHING [2016] WSSC 31

Case name:	Police v Allen AH CHING
Citation:	[2016] WSSC 31
Decision date:	11 March 2016
Parties:	Police (Informant) and Allen AH CHING , male of Falealupo and Vaitele-Fou (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Laulusāmanaia Justice Mata Tuatagaloa
On appeal from:
Order:	Bail is denied.
Representation:	Ms F Ioane for the Prosecution Mr D Kerslake for the Defendant
Catchwords:	Bail application - attempted murder - causing grievous bodily injuries - armed with a dangerous weapon – domestic violence involved – bail denied
Words and phrases:
Legislation cited:	Crimes Act 2013 ss 118(1); Police Offences Ordinance 1961
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

ALLEN AH CHING, male of Falealupo and Vaitele-fou
Defendant

Counsel:
Ms F Ioane for the Prosecution
Mr D Kerslake for the Defendant

Sentence: 11 March 2016

DECISION ON BAIL APPLICATION

1. The accused is charged with attempted murder, causing grievous bodily injuries and armed with a dangerous weapon, a kitchen knife.
2. The charges of attempted murder carries a penalty of life imprisonment and grievous bodily injuries under s. 118(1) Crimes Act 2013 carries a maximum penalty of 10 years’ imprisonment. The lesser offence of armed with a dangerous weapon carries a maximum penalty of 12 months’ imprisonment under the Police Offences Ordinance 1961.
3. The serious offences of attempted murder and grievous bodily injuries are triable under the jurisdiction of this Court, while the armed with a dangerous weapon offence falls within the jurisdiction of the District Court. However, that does not preclude this Court from having the jurisdiction to deal with this offence together with the (other two) charges within its jurisdiction.
4. Given the maximum penalties for the attempted murder (life imprisonment) and grievous bodily injuries (10 years), the accused is not bailable as of right but bailable at the discretion of the Court.

Background:

5. The background of this bail application is provided in the affidavit of the accused and the affidavit of the victim who was the de-facto wife of the accused.
6. The accused and the victim were in a de-facto relationship since 2012 and they have two children aged 3 and 2 years old. They lived at (or with) the accused family at Vaitele-fou. In October 2015, the victim left the accused and her two children went and lived with her aunty at Toamua claiming that the accused (beats her) and, is very violent towards her. The victim also claimed that the reason why she went back to the accused was because of her children. The accused again started beating her when she went back to him even with her mother and younger brother around. The victim in her affidavit truly fears for her life and safety if the accused is granted bail.
7. The accused on the other hand said in his affidavit that the victim left him and his children for another man. The victim came back and begged him to take her back.
8. What was very clear from the accused’s affidavit and from that of the victim is that the accused is very jealous of the victim and suspicious of her when she is late home or when the victim talks to her male co-workers.

Bail Application:

9. The grounds of the bail application as amended by counsel for the accused on
   26 February 2016 are:
   1. The accused has been remanded in custody since 25 January 2015;
   2. The accused has pleaded not guilty to all charges and hearing of the charges is set down for 5 September 2016;
   3. There is minimal risk of the accused failing to appear for trial;
   4. There is minimal risk of the accused interfering with Prosecution witnesses;
   5. The accused is not likely to offend whilst on bail;
   6. Any risks can be minimized greatly by the restrictive bail conditions as follows:
      1. accused to surrender travel documents;
      2. accused to reside at Aleisa away from victim;
      3. accused to sign in at Faleata Police Station.

Opposition to Bail Application:

10. The grounds on which the prosecution opposes bail are:
    1. The safety of the victim. As deposed in the sworn affidavit of the victim, this is not a one-off incident but rather a continuous habit of the defendant because of his jealousy and suspicion of her;
    2. The safety of their children is at risk given his violent nature;
    3. The seriousness of the charges the defendant is charged with;
    4. The nature of the attack itself portrays the great risk to the victim from the defendant; and
    5. There has not been any reconciliation between the victim and defendant. This could be because the defendant is in custody. Nevertheless, there has been no reconciliation between the two families.

The issues:

11. The three primary consideration to be taken in to account when dealing with a bail application are whether there is a risk:^[1]
    1. the accused may fail to appear in Court on the date to which he is recommended;
    2. the accused may interfere with witnesses or evidence; and
    100. the accused may offend while on bail.
12. The risk must be a ‘real and significant’ one and not just any fanciful or hypothetical risk.^[2]

Is there a risk that the accused may fail to appear in Court?

13. In assessing the risk that a defendant may fail to appear for trial the Court must have regard to the following factors:^[3]
    • − likely penalty which would follow any conviction;
    • − nature of the offence;
    • − strength of the prosecution case (likelihood of conviction); and
    • − facts relating to the particular defendant, for example, personal factrs such as family or residential ties, previous offending, previous failure to answer bail to name a few.
14. 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 defendant will not answer bail.
15. The risk of absconding and failure to appear in Court as proposed by defendant’s counsel, Mr Kerslake can be minimized by the defendant surrendering his passport and reporting to the Faleata Police Station.
16. However, on the basis of the victim’s affidavit provided by the prosecution in opposing bail being granted provides very strong evidence for the prosecution’s case against the defendant. The victim herself is without doubt would be the prosecution’s key witness. On the basis of the sworn affidavit of the victim, there is in the Court’s opinion that the prosecution has a strong case against the defendant and the likelihood of a conviction is very high.

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

17. Again bail will not be granted if there is a real and substantial risk that defendant will interfere with prosecution witnesses and evidence. The primary issue is the safety of the victim.
18. Although counsel for defendant saying in application for bail that the defendant when granted bail can reside at Aleisa, away from Vaitele or Toamua where the victim lives, the distance between the two villages is still less than 30 minutes away. The risk of the defendant tampering and interfering with this prosecution witness (victim) not to mention her safety is too high.
19. Although the defendant is entitled to the presumption of innocence, I nevertheless need to take into account the nature of the allegations at this point in the proceedings when assessing the question of risk.
20. Clearly there will be a considerable time before a trial can be held on 5 September 2016. Time in custody until trial is usually an important consideration, and rightly so, but in my view that cannot be a factor when considering the safety of the victim.
21. In the circumstances of this case and the conditions of bail proposed by counsel for the defendant, those conditions cannot be relied on to achieve the level of safety which this victim requires or would guarantee that the defendant would not breach bail.
22. There is in my assessment a very high risk to the victim’s safety if the defendant is granted bail.
23. Bail is denied.
24. Counsel can revisit bail perhaps when safety of the victim is no longer an issue.

__________________________
JUSTICE TUATAGALOA

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^[1] Police v Posala [2015] WSSC 92
^[2] Adams on Criminal Law vol. 3, BL 8.01
^[3] Adams on Criminal Law vol. 3, BL 8.03