Police v Leleimalefaga [2017] WSSC 121 (4 September 2017)

SUPREME COURT OF SAMOA
Police v Leleimalefaga [2017] WSSC 121

Case name:	Police v Leleimalefaga
Citation:	[2017] WSSC 121
Decision date:	Ruling: 4 September 2017
Parties:	POLICE v LELEIMALEFAGA male of Salesatele, Falealili.
Hearing date(s):	1 September 2017
File number(s):	S974/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- As I am satisfied that there are real and significant risks that the accused will interfere with the potential prosecution witnesses and will re-offend if granted bail, and that there is no other special matter that would make it unjust to detain the accused, the application for bail is denied
Representation:	A Matalasi and R Masinalupe for prosecution U I Sapolu for accused
Catchwords:	any other special matter that would make it unjust to detain the accused – bail application – previous consistent statement evidence – recent complaint evidence –risk that the accused may fail to appear on the date to which he has been remanded – risk that the accused may interfere with witnesses or evidence – risk that the accused may offend while on bail –
Words and phrases:
Legislation cited:	Crimes Act 2013 Criminal Procedure Act 2016 Evidence Act 2015 Evidence Act 2006 (NZ)
Cases cited:	Hart v R [2010] NZSC 91; [2011] 1 NZLR 1 Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 107 Police v Posala [2015] WSSC 92; R v Court [1989] AC 28; [1988] 2 A11 ER 221 R v Hall [1952] 1 KB 302 (CA), at 307 R v K HC Whangarei CRI-2008-027-2728, 9 December 2009
	R v Payne [Barrett’s Case] [2003] 3 NZLR 638, also reported as R v Payne (2003) 20 CRNZ 189 (CA)... Rongonui v R [2011] NZSC 92; [2011] 1 NZLR 23
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER
of an application for bail.

BETWEEN

P O L I C E
Prosecution

A N D

IE’U LELEIMALEFAGA male of Salesatele, Falealili.
Accused

Counsel:
A Matalasi and R Masinalupe for prosecution
U I Sapolu for accused

Hearing: 1 September 2017
Ruling: 4 September 2017

RULING ON BAIL APPLICATION

The charge

1. The accused, a 40 year old male, is charged under s.58 (3) of the Crimes Act 2013 with having indecently assaulted a girl under the age of 12 years. He has pleaded not guilty to the charge. Section 58 insofar as relevant provides:

“(1) ...

“(2) ...

“(3) A person who does an indecent act with or on a child is liable to imprisonment for a term not exceeding 14 years.

“(4) It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12 years.

“(5) It is not a defence to a charge under this section that the child consented.

“(6) In this section:

“ ‘child’ means a person under the age of 12 years.

“ ‘doing an indecent act with or on a child’ includes indecently assaulting the child”.

2. In terms of s.58 (3), the charge of indecent assault brought by the prosecution consists, in my opinion, of four elements which the prosecution must prove beyond reasonable doubt. These four elements are:
   • (a) Firstly, that the victim was at the material time under the age of 12 years;
   • (b) Secondly, that the accused assaulted the victim;
   • (c) Thirdly, that the assault was “indecent” according to the standards of right-minded members of the community; and
   • (d) Fourthly, that the accused intended to commit an assault which is indecent on the victim.
3. Section 58 of our Crimes Act 2013 is similar, but not identical, in wording to s.132 of the Crimes Act 1961 (NZ). In the discussion on crimes against morality in Adams on Criminal Law vol 1, Part 7, CA 135.02, the learned authors when referring to the elements which constitute an “indecent assault” said:
   • “ R v Court [1989] AC 28; [1988] 2 A11 ER 221 (HL) suggests the prosecution must prove:

“(a) That the defendant assaulted the complainant.

“(b) That the assault, or the assault and the circumstances accompanying it, were indecent. ‘Indecent’ means that which is capable of being, and which the tribunal of fact finds would be, considered by right-minded persons as indecent...; and

“(c) That the defendant intended to commit an assault that in its nature or because of the circumstances, was indecent. As Lord Griffiths put it at 34, the ‘extra mental element’ required for indecent assault is an intent to do something indecent ... in the sense of an affront to ... sexual modesty or, in other words, an intent to do that which the jury find indecent.’ Evidence of the defendant’s reasons for acting will be admissible to support or negative that the assault was an indecent one and was so intended, even if such reasons were not disclosed at the time of the act. For example, evidence that the defendant’s secret motive was to obtain sexual gratification or to humiliate the victim may show that an act otherwise capable of being regarded as decent was indecent, and evidence that the motive was to punish wrongdoing, or to search the complainant, might show the contrary”.

4. Further on at CA 135.02, the learned authors of Adams on Criminal Law(supra) go on to say:
   • “Where the act complained of is ‘inherently indecent’, the inference will generally be ‘irresistible’ that the intention was to assault the complainant ‘in a manner which right-minded persons would clearly think was indecent’ unless the defendant can suggest some ‘lawful justification’ for the conduct: R v Court, 42 – 43, per Lord Ackner – for example, that the act was done with a view to advice or treatment by a qualified, or even an unqualified, person: R v Hall [1952] 1 KB 302 (CA), at 307. In the absence of any such ‘lawful justification’, the fact that an ‘inherently decent’ act was done for the purpose other than sexual gratification is irrelevant: R v Court, at 35, per Lord Griffiths; R v K HC Whangarei CRI-2008-027-2728, 9 December 2009 (defendant claiming that his displacement of his (unconscious) victim’s clothing was to conceal his offending, not for sexual gratification”).
5. It is also to be remembered that for indecent assault under s.58, neither a belief by the accused that the victim was of or over the age of 12 years or consent by the victim is a defence.

Background

6. The statements given by the victim who is 8 years old, her brother who is 11 years old, her older sister who is 17 years old, and her mother show that at the material time the accused was living with their family. The accused is a relative of the victim’s mother.
7. On 28 June 2017 in the morning, the victim’s mother went to work while the victim’s father and older sister went to Apia. Only the victim, her brother, their younger sister, and the accused were left at home. I will now refer in a little detail to what the victim and her brother told the police in their statements because of the submission by defence counsel that the prosecution case is weak. These are not to be taken as the actual facts of this case because the actual facts are to be determined at the trial. The victim says in her statement to the police that while she and her younger sister were inside their parents bedroom on the day in question, the accused who was lying down in the sitting room watching TV called out to her to come for his errand. She then went to the accused. The accused then asked her to lie on his right hand and she did. The accused then wrapped his other hand around her and kissed her mouth. He also rubbed his hand on her private part. The victim also says that she knows the accused as he would come and stay with her family from time to time.
8. The victim’s brother in his statement to the police says that his father and his older sister went to Apia on Thursday morning leaving him, the victim, their younger sister, and the accused at home. He then went to sleep inside their bedroom with his sisters while the accused was watching TV in the sitting room. At that time his sisters were also inside the bedroom using their colour pencils. Later on when it rained, he woke up and went outside and bathed in the rain. He also says in his statement to the police that on the following morning, the victim told him that the accused had touched (tagotago) her private part. At that time, the victim had a worried look.
9. It may be that at the trial, the crucial issue would be one of credibility between the evidence of the victim and that of the accused. In other words, whose evidence is to be believed, the victim’s evidence or that of the accused. Depending on how the evidence will come out at the trial, the prosecution may seek to rely on what the victim is alleged to have told her brother that the accused had touched (tagotago) her private part to support the credibility of the victim’s evidence at the trial. What the victim’s brother said that the victim told him that the accused had touched her private part has traditionally been described at common law as “recent complaint” evidence. It is now encompassed under s.25 as a previous consistent statement.
10. When the accused was charged by the police on 2 July 2017, he was remanded in custody for mention on 17 July 2017. At the mentions on 17 July, the accused was further remanded in custody for a re-mention on 31 July 2017 for the police to finalise their charges. On 31 July 2017, this matter was further adjourned for the accused to engage counsel as he indicated his wish to be represented by counsel. Counsel for the accused appeared and entered a plea of not guilty to the charge. The accused has been remanded in custody up to now, hence the application for bail.

Recent complaint

11. The admissibility in sexual cases of what used to be described at common law as “recent complaint” evidence is now to be considered under s.25 of the Evidence Act 2015 regarding the admissibility of previous consistent statement evidence. Section 25 provides:

“(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or (3) applies to the statement.

“(2) A previous statement of a witness that is consistent with the victim’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

“(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if:

“(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

“(b) the statement provides the Court with information that the witness is unable to recall”.

12. The word “statement” is defined in s.2 to mean (a) a spoken or written assertion, in any form or manner, (including any sketch) by a person of any matter; or (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter.
13. For present purposes, it is s.25 (2) that is relevant. And I will now refer to the relevant New Zealand authorities on the interpretation and application of that provision because s.25 of our Evidence Act 2015 is identical to s.35 of the Evidence Act 2006 (NZ).
14. In Hart v R [2010] NZSC 91; [2011] 1 NZLR 1 in a joint judgment by Blanchard, Tipping, McGrath and Wilson JJ, delivered by Tipping J, it is there stated at paras [35] – [38]:
    • “Previous consistent statements
    • “[35] The current rule on this subject is contained in s.35 of the Act, ... The starting point in terms of subs (1) is that a previous statement of a witness that is consistent with the witness’s evidence as given in Court is not admissible unless it is rendered admissible by either subs (2) or subs (3). It is subs (2) which is in issue in the present case. It provides that a witness’s previous consistent statement is admissible to the extent that the admission of the statement is necessary to respond to a challenge to the witness’s veracity or accuracy. The challenge referred to is not a general but one based either on a previous inconsistent statement or on a claim of recent invention on the part of the witness.
    • “[36] Hence the first thing that must be shown by the party seeking to adduce a witness’s previous consistent statement under subs (2) is that there has been a challenge to the witness’s veracity or accuracy in a qualifying respect. It must have been suggested, on one or other of the bases referred to in the subsection, that the witness is being untruthful or inaccurate in their testimony. Next it must be shown that it is necessary to admit the witness’s previous statement in order to respond to the challenge to the witness’s veracity or accuracy. In recent invention cases the challenge is obviously to the witness’s veracity. The concept of necessity in this context means that it is necessary to admit the prior statement to do justice to the witness’s testimony in Court in the light of the attack on that testimony. A witness who is attacked for lack of veracity or accuracy on either of the statutory bases is entitled, to the extent necessary, to support their testimony in Court by reference to a consistent statement made out of Court on an earlier occasion. The touchstone is necessary extent of response, with relevance being implicit in the concept of necessity.
    • “[37] While the veracity or accuracy of evidence given in Court is not necessarily enhanced because of repetition, the policy of the subsection is that in qualifying circumstances, of which the Judge is gatekeeper, it is significant that a witness has said the same thing before. The trier of fact should be aware of that fact and assess its weight in the light of all the relevant circumstances.
    • “[38] It is important however, to reiterate that a general attack on a witness’s veracity or accuracy is not enough to trigger the operation of sub s (2). The attack must be based either on a previous inconsistent statement or on a claim of recent invention.
15. Further on, their Honours stated in paras [49] – [51]:
    • “[49] The definition of the expression ‘previous statement’ in s.4 is ‘a statement made by a witness at any time other than the hearing at which the witness is giving evidence...’
    • “[50] Thus the key present question in interpreting s.35 (2) is whether a prior consistent statement can be said to respond to a claim of recent invention if it was not made prior to the occasion of the alleged invention. As we have said, respond in this context means to rebut. To respond to a claim of recent invention the statement must tend to rebut the proposition that the witness’s trial evidence has been invented. While a consistent statement made before the occasion of the alleged invention clearly does so, it does not follow that a consistent statement made after the occasion of the alleged invention cannot do so.
    • “[51] The concept of invention carries with it the connotation of deliberately misleading the Court for some reason or other. In determining whether invention is being suggested it is the effect overall of the challenge to the witness’s evidence that matters, not the language in which the challenge is made. Once the claim of invention criterion under s.35 (2) is met, what is required is that the admission of the prior consistent statement be ‘necessary to respond’ to the challenge. Necessity is a matter of judicial assessment in respect of which the common law experience is likely to be of assistance. Whether the prior consistent statement ‘responds to’ the challenge to the witness’s veracity or accuracy must be measured by whether its contents, viewed in the light of the circumstances of its making, tend to rebut the claim that the witness has invented the evidence in question”.
16. In Rongonui v R [2011] NZSC 92; [2011] 1 NZLR 23; in the joint judgment of Blanchard, Tipping, McGrath and Wilson which was also delivered by Tipping J in contemporaneously with the judgment in Hart v R (supra), their Honours stated in paras [41] – [44]:
    • “[41] The Law Commission, which drafted the original text of the Bill, said that what became s.35 ‘replaced’ the law on recent complaints in sexual cases. The Select Committee tacitly accepted this replacement. The Law Commission’s draft, as introduced to Parliament, allowed a previous consistent statement to be admitted in response to a challenge to truthfulness (veracity) or accuracy.
    • “[42] The Commission thereby meant to preserve the affect of the recent complaint doctrine but on the basis that the evidence was henceforth to be admissible only in response to a challenge to the complainant’s veracity or accuracy. The Select Committee narrowed the scope of that challenge to challenges based on previous inconsistent statements and those based on recent invention, they being examples of particular types of challenge. Thus what used to be called ‘recent complaint’ evidence is now admissible as a previous consistent statement if, as will usually be the case, it is necessary to admit it in response to a claim of recent invention. The previous statement no longer has to be ‘recent’, that is proximate in time to the events concerned.
    • “[43] A procedural consequence is that whereas recent complaint was historically given by the complainant in evidence-in-chief, now, under the recent invention limb s.35 (2), the admissibility of responding evidence will normally depend, as at common law, on the nature of the defence and the cross-examination of the complainant. If permitted, the responding evidence will be given in re-examination. Most defences in sexual cases involve the proposition either that the alleged offending did not occur at all or that the conduct involved was consensual. The very nature of such defences must, at least implicitly, involve a challenge to the complainant’s veracity on the basis of invention; that is a contrivance later in time than the events in issue. Thus in most case of this kind it is likely that the evidence which the complainant would have been able to give in evidence-in-chief, as recent complaint evidence at common law, will now be admissible, in re-examination, as a previous consistent statement under s.35 (2).
    • “[44] There may be cases in which the required challenge to the complainant’s veracity or accuracy has become apparent in a sufficiently clear way before trial or during counsel’s opening address to enable the Judge to rule that the complainant may give responding evidence as part of her evidence-in-chief. Indeed this process may be fairer to the accused because, if the complainant’s evidence is given in re-examination, the accused would require permission under s.97 (s.82 of our Act) to be able to cross-examine on it. While permission would likely be granted, the cross-examination could be followed by further re-examination; altogether rather an untidy process and one which may operate to the disadvantage of the accused by effectively splitting cross-examination. The practical implications of bringing ‘recent compliant’ evidence within the law relating to previous consistent statement do not appear to have been given much attention in the formulation of the change”.
17. I have cited at some length from the decisions of the New Zealand Supreme Court in Hart v R [2010] NZSC 91; [2011] 1 NZLR 1 and Rongonui v R [2010] NZSC 92; [2011] 1 NZLR 23 because the traditional common law on the admissibility of ‘recent complaint’ evidence has been changed by s.35 of the Evidence Act 2006 (NZ) which is identical to s.25 of our Evidence Act 2015 but the issue of recent compliant evidence and its admissibility may arise in the trial of this case regarding the complaint by the victim to her brother. This change brings recent complaint evidence within the law relating to previous consistent statement evidence and provides the new requirements for the admissibility of recent complaint evidence. I would recommend to counsel to read the judgments of the New Zealand Supreme Court in full even though they are not easy reading.

The bail application

18. The application for bail has been brought for the accused under s.98 of the Criminal Procedure Act 2016. The grounds of the bail application are as follows:
    • (a) the accused has pleaded not guilty and he vehemently denies the charge against him;
    • (b) so that the accused may provide full and detailed instructions to his counsel which include a sight visit with his lawyer;
    • (c) so that the accused may arrange his family and occupational affairs as the accused was earning at least $300 from his employment as a fisherman;
    • (d) so he may get his witnesses who were present on the date and time of the alleged offence to speak with his lawyer;
    • (e) the accused has no history of breaching bail, no history of failure to turn up to Court, no history of re-offending whilst on bail, no history of tampering with witnesses;
    • (f) the victim lives at Talimatau but the accused if granted bail will live at Faleasiu and may report to the Faleolo police station or the Afega police station twice a week;
    • (g) the accused has a highly supportive family;
    • (h) it is highly unlikely that the accused will offend whilst on bail given his intensive involvement in his occupation as a fisherman; and
    • (i) the prosecution case is weak.
19. The grounds of the bail application are also substantially set out in the accused’s supporting affidavit. The application is also supported by a letter of 31 August 2017 from the accused’s uncle who is an assistant pastor of the Worship Centre at Faleasiu.

Opposition to bail

1. The prosecution opposes the bail application on the following grounds:
   • (a) there is a real and significant risk that the accused will try to tamper with the evidence or influence the prosecution’s witnesses as he knows all of them as they are his relatives and they were living together at the time of the alleged offending;
   • (b) there is a risk that the accused will re-offend if granted bail as he has a long list of previous convictions from 2003 to 2012 and, except for the previous conviction for murder in 2003, all the subsequent offences for which the accused was convicted down to 2012 were committed whilst the accused was serving his life sentence for murder;
   • (c) an early hearing date can be arranged for this year for the trial to take place;
   • (d) the accused will not be denied access to counsel if he remains n custody as defence counsel can visit the accused in Tafaigata prison or arrangements can be made with the prison authorities for the accused to be brought over to the Apia police station for defence counsel to interview him and obtain any instructions; and
   • (e) breach of parole conditions as shown by the letter from the parole service.
20. The letter of 30 August 2017 from the parole service shows that the accused was convicted of murder and sentenced on 16 April 2003 to life imprisonment. This letter also states that the accused was imprisoned for raping and then murdering a female. However, the previous convictions card of the accused does not show a previous conviction for rape. Counsel for the prosecution told the Court that the prosecution for some reason not known to them did not proceed with the rape charge. I will, therefore, take it that the accused was convicted only of murder in 2003.
21. The letter from the parole service also shows that the accused’s application for parole was twice rejected by the parole board because of his previous convictions whilst servicing his life sentence. Under the law that was applicable at the time, a prisoner serving a life sentence was only eligible for parole after servicing 10 years of his life sentence. The accused was not granted parole until 23 June 2016 which means he was only granted parole after serving 13 years of his life sentence. One of the special conditions of his parole was that he was to live with his family at Salesatele, Falealili. This was later changed to Aleisa upon request by the accused. However, it appears from the police statement of the victim, her brother, her older sister, and her mother that at the time of the present alleged offending the accused was staying at their family at Talimatau instead of Aleisa. And he often stayed with the victim’s family which is contrary to his special parole condition that he is to stay at Aleisa.

The issues

22. Following the approach to a bail application applied in Police v Posala [2015] WSSC 92; Police v Ah Ching [2016] WSSC 31; and Police v Barlow [2017] WSSC 107, I turn now to consider the relevant issues to an application for bail.

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

23. It was the contention of counsel for the accused that there is no risk that the accused will fail to appear in Court on the date of his trial if granted bail because he has no history of breaching bail and no history of failure to turn up in Court. That is correct. But that must have been so because for all the offences that the accused committed from 2007 to 2012 whilst serving his life sentence commencing in 2003 for murder, he must have been just arrested by the police and taken back to prison to continue serving his life sentence. There was no room for bail to be granted to him. He had to go back to prison. This is assuming that the burglary and theft for which the accused was convicted in 2008 and the possession of narcotics for which he was convicted in 2011 were committed outside of the prison.
24. There is no also no evidence that the accused fled or tried to flee the country when he escaped from prison twice in 2008, once in 2010, and once in 2012. The accused is now employed as a fisherman on a fishing alia. I am also not convinced that he will try to flee the country on a fishing alia if granted bail. It will be too risky and too dangerous to do so. There is also all likelihood that he will be deported back to Samoa if he escapes in an alia to another country so that it would not be worthwhile taking the risk.
25. Also of relevance to the present issue is the submission by defence counsel that the prosecution case is weak which counsel for the prosecution opposed. In Adams Criminal Law vol 3 BL 8.03, the learned authors state:
    • “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 risk of flight as the time of the trial approaches: 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 prior absconding...., previous offending and previous failures to answer bail including police bail...”
26. As earlier mentioned, it would appear from the police statements produced by the prosecution that to prove the charge the prosecution would be likely to rely on the evidence of the victim and the evidence of her 11 year old brother that the victim had told him the following morning that the accused had touched (tagotago) her private part and that she appeared worried. What the brother says about what the victim told him would be “recent complaint” evidence under the common law but now called previous consistent statement evidence in terms of s.25 of the Evidence Act 2015. Whether such a statement will be admissible will depend on how the evidence will come out at the trial. If what the victim told her brother turns out to be admissible in evidence at the trial, the relevant prosecution evidence will be: (a) evidence of the victim, (b) evidence of the brother about what the victim had told him, and (c) evidence of the brother about the appearance (worried look) of the victim at the time she told him that the accused had touched her.
27. Whilst I would not say that the case for the prosecution is very strong on the basis of the police statements by the victim and her brother, I also cannot say that it is a weak case.
28. After weighing up all the relevant circumstances, I am not satisfied that there is a real and significant risk that the accused will fail to appear on the date to which he will be remanded for trial. There is also no risk of flight. Perhaps, I should add that the prosecution did not contend that there is a real and significant risk that the accused will not appear at his trial if granted bail.

(b) Second issue: Is there a risk that the accused may interfere with witnesses?

29. The potential witnesses for the prosecution, namely, the victim and her brother are both of a young age. They attend primary school at a nearby village. They are both known to the accused as they are relatives and the accused used to stay at their home from time to time. In my view, given the young age of the victim and her brother they are in a particularly vulnerable position, especially when they are on their own when going to school.
30. The accused has a bad criminal record. I am concerned that there is a risk that the accused may try to interfere with the victim, or her brother, or both, especially when they are on their own when going to school. It also appears from the report from the probation service and what counsel for the prosecution told the Court that the victim of the murder charge for which the accused was sentenced to life imprisonment for murder was a female. Counsel for prosecution also said that the accused was charged with murder and rape but the prosecution proceeded only with the murder charge.
31. In my view, there is a real and significant risk that the accused may interfere with the two potential witnesses for the prosecution if granted bail.

(c) Third issue: Is there a risk that the accused may offend while on bail?

32. The accused was sentenced to life imprisonment for murder in 2003; he was convicted of theft in 2007, theft and burglary in 2008, escape from lawful custody twice in 2008, escape from lawful custody in 2010, possession of narcotics in 2011, and again escape from lawful custody in 2012. He was granted parole on 23 June 2016. He is now being charged with indecent assault of a girl under the age of 12 years on 28 June 2017.
33. Under the special conditions of the accused’s parole, he was to reside with his family at Salesatele, Falealili. This was later changed to Aleisa upon request by the accused. The offending with which the accused is now being charged is alleged to have been committed at Talimatau. And the victim and her brother’s statements to the police show that the accused used to come and stay with their family which is a breach of the accused’s special parole condition as to residence. This is also an offence under the parole legislation.
34. In para 9 of the report of 30 August 2017 from the parole service , it is there stated that the parole service have continued to visit the accused’s places of residence but the occupants did not know of the accused’s whereabouts, not a sign that the accused was complying with his parole condition as to residence.
35. In these circumstances, I am of the view that there is a real and significant risk that the accused may re-offend while on bail.

(d) Fourth issue: Is there any other special matter that would make it unjust to detain the accused?

36. There were other matters, unrelated to any of the risks, raised by defence counsel in support of the bail application but in my view they are not sufficiently cogent to make the accused’s continued detention unjust. Defence counsel may gain access to the accused at Tafaigata prison and interview him there. If there are any difficulties in that regard, arrangements can be made to bring the accused to the Apia police station to facilitate access by defence counsel to the accused for an interview.
37. If the accused wants to make a site visit with his counsel, there is really nothing to stop that provided it is done at a reasonable time. But I would suggest that the police should be present for safety reasons in case there is still any anger on the part of the victim’s family against the accused.
38. I do not know what family affairs that the accused says that he has to arrange because according to the report from the parole service, they have continued to visit the places of residence where the accused was supposed to stay but the occupants told the parole service that they do not know the accused’s whereabouts. I also do not know what arrangements that the accused needs to make with his employment as a fisherman on a fishing alia. This is not a complex occupation. Someone else can easily take the place of the accused. Apparently, the accused is also not the owner of the fishing alia. So what occupational arrangements does he want to make?
39. I am also not clear what witnesses that the accused is saying are his witnesses who were present on the date and at the time of the alleged offending that he wants his lawyer to interview. This is because it is clear from the police statements of the victim and her brother that the only people who were in the house at the material time were the victim, her brother, their younger sister, and the accused. There was no one else.
40. Defence counsel also referred to the accused’s plea of not guilty. I would have given weight to this factor if there was to be a lengthy period in custody before the date of trial because of the presumption of innocence. But this case is now set down for hearing in the week commencing 23 October 2017.
41. I am therefore not persuaded that there is any other matter that would make it unjust to detain the accused.

Conclusion

42. As I am satisfied that there are real and significant risks that the accused will interfere with the potential prosecution witnesses and will re-offend if granted bail, and that there is no other special matter that would make it unjust to detain the accused, the application for bail is denied.

CHIEF JUSTICE