Police v Pule [2017] WSSC 127 (12 September 2017)

SUPREME COURT OF SAMOA
Police v Pule [2017] WSSC 127

Case name:	Police v Pule
Citation:	[2017] WSSC 127
Decision date:	12 September 2017
Parties:	POLICE v LATAI PULE male of Lotoso’a, Saleimoa.
Hearing date(s):	12 September 2017
File number(s):	S686/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- For the above reasons, the accused’s bail application is denied. This matter is set down for hearing on the date recommended by the prosecution which is the week commencing 9 October 2017
Representation:	L Sio and A Matalasi for prosecution K Koria 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:
Cases cited:	Police v Ah Ching [2016] WSSC 31, para 14; Police v Barlow [2017] WSSC 107; Police v Leleimalefaga [2017] WSSC 121 Police v Posala [2015] WSSC 92 para
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

LATAI PULE male of Lotoso’a, Saleimoa.
Accused

Counsel:
L Sio and A Matalasi for prosecution
K Koria for accused

Hearing: 12 September 2017

Ruling: 12 September 2017

RULING ON BAIL APPLICATION

Proceedings

1. These proceedings are concerned with an application for bail brought on behalf of the accused under s.98 of the Criminal Procedure Act 2014. The application is opposed by the prosecution.
2. On 4 September 2017, when the prosecution was ready to proceed with the trial of this matter, Nelson J the trial Judge told the accused that he could apply for legal aid and adjourned the hearing. Nelson J may not be aware of the practice during criminal mentions that every unrepresented accused is first asked before he/she pleads whether he/she wants counsel. If he/she says yes, then the accused is advised that he/she may apply to the Registrar for legal aid if he/she cannot afford legal representation. If the accused says no then a hearing date is set.

Background

3. The brief facts of this matter as alleged by the prosecution are contained in the affidavit of 12 September 2017 of the complainant. It is there stated that on Friday 17 March 2017, the accused who is the complainant’s husband assaulted the complainant at their home at Lotoso’a, Saleimoa. He punched the complainant on the mouth and again punched her on the mouth and left eye. As the complainant screamed for help, the accused grabbed hold of her t-shirt and laid on top of her whilst trying to reach for a machete. He then picked up an electric wire (uaea moli), tied it around her neck and strangled her. Whilst she was gasping for air the accused’s sister came and took off the wire from her neck. The assault then stopped. Subsequently, the accused was apprehended by the police and he was remanded in custody.
4. The accused has been charged by the police with attempted murder, causing actual bodily harm with intent, and being armed with a dangerous weapon, namely, an electric wire, without a lawful purpose. He was then remanded in custody. At the mentions on 8 May 2017, the accused was released on bail. One of this bail conditions was that he was to reside at his family at Satuimalufilufi and not to have any contact with the complainant. However, instead of residing at Satuimalufilufi, the accused went back to his wife at Lotoso’a, Saleimoa, and stayed there. He has been brought back into custody.
5. In his affidavit of 11 September 2017, the accused says that the complainant visited him whilst he was in custody and he apologised to her and they reconciled. In the affidavit by the complainant, she says that after the mentions on Monday 4 September 2017, the accused apologised to her at the Court House and she accepted his apology. However, as the accused was led away by the police he called out to her to have him released on bail and from the look on his face and the manner in which he called out to her, she realised that he was not truly remorseful but had only apologised to her so that he can be released. I accept what the complainant says in her affidavit as more credible than what the accused says in his affidavit. The complainant further says in her affidavit that prior to this incident, the accused had assaulted her on different occasions. She is afraid that if the accused is released on bail again the accused will assault her again for reporting this matter to the police. She is concerned about her safety and that of her one year old son.
6. In the affidavit of 12 September 2017 by police constable Josie Papalii, the police officer says that on Monday 11 May 2017 after the accused was released on bail on 8 May 2017, the accused returned at night to the complainant at Lotoso’a, Saleimoa and threatened to kill her. If this is correct, it is another offence.

Issues

7. I will approach the present bail application on the basis of the approach adopted in Police v Posala [2015] WSSC 92 para 18 and applied in Police v Ah Ching [2016] WSSC 31, para 14; Police v Barlow [2017] WSSC 107; Police v Leleimalefaga [2017] WSSC 121.

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

8. On the material placed before me, I am not satisfied to the required standard that there is a real and significant risk that the accused may fail to appeal on the date to which he will be remanded for trial. As I understand the submissions by counsel for the prosecution, they do not contend that there is such a real and significant risk here.

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

9. The accused’s wife is the victim in this matter. She will be the key witness for the prosecution. She is afraid that if the accused is released again on bail he will assault her for reporting this matter to the police. She has a history of being assaulted by the accused on different occasions prior to the present incident.
10. When the accused was released on bail with the special condition that he was to reside at Satuimalufilufi away from the victim, he went back to the victim at Lotoso’a, Saleimoa, contrary to this condition of his bail. And the victim is seriously concerned for her safety and that of her one year old son if the accused is released on bail again.
11. In these circumstances, I am satisfied that there is a real and significant risk that the accused may interfere not only with the victim but also her evidence if granted bail again.

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

12. The concern expressed by the victim for her safety and that of her one year old son if the accused is released on bail again and the history of pervious assaults of the victim by the accused, sufficiently suggests that the accused may reoffend by assaulting the victim again if granted bail. I am therefore satisfied that there is a real and significant risk that the accused may reoffend while on bail.

(d) Fourth issue: Is there any matter not already covered that would make it unjust to detain the accused?

13. The prosecution has already agreed to make room with its criminal cases for the hearing of this case in October this year so that the accused would not have to be in custody for long to await his trial. This takes care of any possible defence contention that the accused may be detained for too long before his trial but he is entitled to rely on the presumption of innocence.
14. There is no other possible matter that would make it unjust to detain the accused.

Conclusion

15. For the above reasons, the accused’s bail application is denied. This matter is set down for hearing on the date recommended by the prosecution which is the week commencing 9 October 2017.

CHIEF JUSTICE