Lam v Police [2018] WSSC 119 (4 December 2018)

SUPREME COURT OF SAMOA
Lam v Police [2018] WSSC 119

Case name:	Lam v Police
Citation:	[2018] WSSC 119
Decision date:	4 December 2018
Parties:	KOLANI JUNIOR LAM (Appellant) v POLICE (Respondent)
Hearing date(s):	28, 29 November 2018
File number(s):	S1718/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The application for bail is denied. - This matter is further adjourned for re-mention on Monday 10 December 2018 to set a hearing date in February 2019
Representation:	K Koria for applicant L Sua Mailo for respondent
Catchwords:	application for bail – gravity of the offence – presumption of innocence – real and significant risk – bail denied
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016s.98 (4)
Cases cited:	Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 103 Police v Foai [2018] WSSC 99. Police v Leleimalefaga [2017] WSSC 121; Police v Posala [2015] WSSC 92; Police v Pule [2017] WSSC 127; R v Lindsay James Tawairua Wilson [2003] NZCA 3
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

KOLANI JUNIOR LAM male of Sinamoga
Applicant

A N D

P O L I C E
Respondent

Counsel:
L K Koria for applicant
L Sua-Mailo for respondent

Hearing: 28, 29 November 2018

Ruling: 4 December 2018

RULING ON BAIL APPLICATION

Proceedings

1. These proceedings are concerned with an application by the applicant for bail. The applicant has been remanded in custody since 6 November 2018. He has been charged by the police with one count of murder in respect of his wife, one count of assault in respect of a step daughter, and one count of possession of narcotics, namely, marijuana. He has pleaded not guilty to the charges against him. He is now seeking bail to await the date of his trial. The police opposes bail.
2. The bail application is brought pursuant to s.98 (4) of the Criminal Procedure Act 2016 which provides:

“(4) A defendant charged with an offence and is not bailable as of right is bailable at the discretion of the Court unless the Court is satisfied that there is just cause for the defendant to be remanded in custody”.

3. Because of the nature of the charges against the applicant, he is not bailable as of right but at the discretion of the Court. The crucial question is whether there is just cause for the defendant to be remanded in custody.

Approach to a bail application

4. The modern approach of the Samoan Courts to an application for bail is now well established: see Police v Posala [2015] WSSC 92; Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 103; Police v Leleimalefaga [2017] WSSC 121; Police v Pule [2017] WSSC 127; Police v Foai [2018] WSSC 99.
5. Under this modern approach, the Court, in considering whether there is just cause for a defendant to be remanded in custody, must take into account:
   • (a) Whether there is a risk that the defendant may fail to appear on the date to which he has been remanded; or
   • (b) Whether there is a risk that the defendant may interfere with witnesses or evidence; or
   • (c) Whether there is a risk that the defendant may offend while on bail; and
   • (d) Any matter that would make it unjust to detain the defendant.
6. All of the above considerations are mandatory and are stated in s.99 (a), (b), (d) and perhaps (k) of s.99 of Criminal Procedure Act 2016. The next stage of this approach is that in assessing the risks and any matter that would make it unjust to detain the defendant as stated in 5 above, the Court may take into account the other matters stated in s.99. These matters are discretionary. In other words, the modern approach to a bail application involves two stages. The first stage is mandatory and the second stage involves consideration of discretionary matters. The difficulty with s.99 is that it has lumped together the two stages of the modern approach, that is to say, it has made no distinction between considerations which should be mandatory and considerations which should be discretionary resulting in confusion and making it difficult to apply the provision. This is the difficulty that this Court was referring to in Police v Barlow [2017] WSSC 107, para 13, where it is stated:
   • “So it is a two-step process. Section 99 of the Criminal Procedure Act 2016 has lumped together the risks that must be taken into account and the factors that may be taken into consideration in the assessment of the risks and whether there is any other matter that would make it unjust to detain the accused. To avoid difficulties in the application of s.99 because of the way it has been drafted, I am of the respectful view that the approach to a bail application in Police v Posala [2015] WSSC 92 should be followed. It is a clear and logical approach. It also avoids the difficulties that would arise from a strict application of s.99.”

Presumption of innocence

7. Counsel for the applicant in his submission referred to the presumption of innocence as the initial consideration to be taken into account in a bail application. He referred to Article 9(3) of the Constitution which provides that every person charged with an offence shall be presumed innocent until proved guilty according to law. Whilst it is correct that a person charged with an offence is presumed innocent until proved guilty according to law, it must be borne in mind that an application for bail is not concerned with the innocence or guilt of a defendant. A bail application is concerned with the question of whether a defendant should be at liberty pending the determination of guilt or innocence. As the New Zealand Court of Appeal put it in its judgment in R v Lindsay James Tawairua Wilson [2003] NZCA 3, para [25], delivered by Elias CJ:
   • “The presumption of innocence is not eroded by the principles of public protection to be found in the Bail Act. Determinations of bail do not pre-determine guilt on the substantive charges. The question for the Court is whether the appellant should be at liberty pending such determination of guilt or innocence. The presumption of innocence is recognised in the general requirement that a defendant must be released on reasonable terms unless the Court is satisfied that there is just cause for continued detention (s.7. (5)).”

Bail application

8. The application for bail is based on the following grounds:

(a) The applicant is charged with a criminal offence and is presumed innocent until proved guilty.

(b) The applicant poses no flight risk and is willing to surrender his passport and to report to the police on a regular basis.
(c) The applicant has no previous convictions and there is no risk that he will offend if granted bail.
(d) The applicant is willing to abide by any conditions if bail is granted by the Court.
(e) The applicant intends to defend himself.

Opposition to bail

9. The bail application is opposed by the respondent/prosecution on the following grounds:

(a) There is a risk that the applicant may fail to appear in Court on the date to which he will be remanded for trial.

(b) There is a risk that the applicant may interfere with prosecution witnesses.
(c) There is a risk that the applicant may offend while on bail.
(d) The character and past behaviour of the applicant warrants that he be remanded in custody.
(e) The gravity of the offence of murder with which the applicant is being charged.
(f) The strength of the evidence and the probability of conviction.
(g) The severity of the punishment to which the applicant is liable.

10. The risks referred to in grounds (a), (b), and (c) of the respondent/prosecution’s opposition to bail are mandatory. They must be taken into consideration in a bail application. The matters referred to in grounds (d) – (g) of the opposition to bail are discretionary. These are matters which the Court may take into account in the assessment of the risks referred to in grounds (a), (b), and (c). This is what is meant by the “two steps process” referred to in Police v Barlow (supra).

Affidavit evidence

11. The sworn affidavits that were filed for the applicant in support of the bail application and for the respondent in opposition to the bail application are quite conflicting in several respects. I raised this with both counsel in Court and in an in - chambers meeting with them on 18 November 2018. At the in - chambers meeting, counsel for the applicant preferred not to call oral testimony to resolve the conflicts in the affidavit evidence as that may disclose before trial the defence that the applicant intends to run at the trial. Counsel for the respondent did not strongly oppose the position taken by counsel for the applicant. The hearing of the bail application therefore proceeded on the basis of submissions by counsel and the opposing affidavits and I am left to resolve as best I could the conflicts in the affidavit evidence.

The issues

12. I turn now to consider the relevant issues to a bail application.
    • (a) First issue: Is there a risk that the applicant may fail to appear on the date to which he will be remanded for trial?
13. The contention by counsel for the applicant is that the respondent has not demonstrated a real and significant risk that the applicant may fail to appear on the date to which he will be remanded for trial. This is because the applicant has undertaken to surrender all his travel documents to the Court, the applicant has a clean police record and has never been charged with an offence, and if the applicant is granted bail the Court may impose appropriate bail conditions to ensure that the applicant does not abscond. Counsel for the applicant also discussed the case for the respondent against the applicant on the charge of murder and submitted that the probability of a conviction on that charge is not high.
14. The contention of counsel for the respondent is that in light of the strength of the police evidence, the likelihood of a conviction on the charge of murder, and the severity of the penalty that will follow, there is a real and significant risk that the applicant may fail to appear on the date to which he will be remanded for trial. Counsel for the respondent also mentioned that the applicant had only recently been granted New Zealand citizenship so that he is able to obtain a New Zealand passport and flee the country.
15. After giving careful consideration to the competing contentions and submissions of counsel, I am not satisfied that there is a real and significant risk that the applicant may not appear on the date to which he will be remanded for trial if granted bail. This is because if granted bail, the applicant will be required to surrender any travel document he may have to the registrar. Appropriate bail conditions including reporting conditions will be imposed. The police may also seek a departure prohibition order to further prevent the applicant from leaving Samoa. The respondent may also advise the New Zealand immigration authorities in Apia about the police case against the applicant and request not to issue a New Zealand passport to the applicant until his case is completed.
    • (b) Second issue: Is there a risk that the applicant may interfere with witnesses or evidence?
16. Counsel for the respondent submitted that on the material before the Court there is a real and significant risk that the applicant may interfere with police witnesses if granted bail, especially Meaalii Tafa (Meaalii) a key police witness who was the babysitter for the children of the applicant and his wife, the deceased. Meaalii is an eye witness to the relationship between the applicant and his deceased wife and the nature of that relationship inside the home. In her sworn affidavit of 20 November 2018, Meaalii says at para 4 that the applicant told her that if the police ask about the “rope” then to tell them she does not know anything. The words used by Meaalii in her affidavit are as follows:
    • “O le aso 17 Oketopa 2018, sa faapea ona ou toe alu ai le fale i Sinamoga ina ua talosaga mai leoleo oute alu e faasino le maea. Sa faapea ona faapea mai ia Junior ia au e aunoa ma le iloa e leoleo a faapea e fesili mai ia leoleo, ona ou fai ai lea ou te leiloa se maea. E lei iai sa’u tala na tali ia Junior I lea tulaga ona ua mae’a ona faia la’u faamatalaga e faatatau i le maea”
17. In para 12 of Meaalii’s affidavit of 20 November 2018, she says that the applicant called her phone twice using a private number but she did not answer. She knew that it was the applicant who called her on the phone as her husband had told her not to answer the phone as the applicant had called him. The words used by Meaalii in her affidavit are as follows:
    • “E faalua ona vili atu i la’u telefoni e faaaoga atu le numera private, ou te iloaina o Kolani ona sa fai mai lo’u toalua sa vili muamua atu ia te ia ae a vili atu se numera private ona aua lea le talia ona o Kolani lea e vilivili atu.”
18. Meaalii also says in her affidavit that after the applicant was remanded in custody, he sent a letter to her and her husband together with $100 which she interpreted to be an attempt by the applicant to make her a witness for him. This letter was given to Meaalii’s husband by one Sio Aukusitino a neighbor of the applicant. As it appears from the applicant’s affidavit of 28 November 2018, the letter was given by the applicant to his parents when they visited him in prison. The letter was then given by the applicant’s parents to Sio Aukusitino to pass on to Meaalii and her husband. There is no mention in the letter of the $100 or what it was for. The letter is silent on the $100. The relevant part of the letter reads as follows:
    • “E manumalo lava le mea moni ma ou te talosaga atu ia te oe pe afai ou te tu ile faamasinoga ia e tumau pea i lau faamatalaga na ave i leoleo ona o i latou na tuaia au ma latou ave au i Tafaigata mo le fasioti tagata faamoemoeina. Faamolemole aua e te toe faia ni faamatalaga iai ona o lo’o taumafai lava le tiapolo e molia pea au”.
19. Given this part of the applicant’s letter and the absence of any reference in the letter to the $100 and what it was for, Meaalii has interpreted the $100 as a bribe to influence her to be a witness for the applicant. Meaalii says in para 14 of her affidavit:
    • “O le $100 sa... aumai ma le tusi e leai se mafuaaga e alai ona aumai lea tupe aua o lea e maua lo’u totogi mai ia Sofia ma o lo’o faapea foi ona iloa e Junior, o tamaiti o loo faapea ona tausi ma faatupe e Sofia. O lau faauigaiga o le $100 sa avatu ma le tusi, o loo faapea ona taumafai ia Junior ou te tu mo ia”
20. The applicant in his subsequent sworn affidavit of 28 November 2018 says that he asked his parents when they visited him in prison to give Sio Aukusitino some money to pass on to Meaalii to buy food for their children. I find this suspicious. Not only is there no reference in the applicant’s letter to the money or what it was for, but there is no evidence that the applicant was in the habit of giving money to Meaalii to buy food for her children before he was remanded in custody.
21. The applicant in his affidavit of 28 November 2018 also says that the reason why he asked Meaalii in his letter to stick to the statement she had already given to the police and not to change it was because he knew that people can change their statements and this can complicate matters very quickly. He was also very worried about the whole process against him being wrongly influenced by people telling Meaalii what to say. But that is in effect what the applicant is doing here. He is telling Meaalii what to do or not to do by telling her to stick to the statement she had already given to the police and not to change it. There is, however, no evidence to show that the applicant was aware of what Meaalii had said in her statement to the police at the time he sent the letter to Meaalii and her husband. So it is not clear what he intended by asking Meaalii to stick to her statement to the police. What is clear is that the reasons now given by the applicant for asking Meaalii in his letter to stick to her statement to the police do not appear in that letter. These reasons are now given after Meaalii had made her affidavit of 20 November referring to the applicant’s letter.
22. The applicant also says in his affidavit that his counsel has now advised him that it is not proper for him to contact Meaalii or any other police witness so that if he is granted bail he will not again contact any police witness. On the material before the Court, I am not satisfied that there is no real and significant risk that the applicant will not again try to contact the key police witness Meaalii.
23. Having considered the affidavits of Meaalii and the applicant, I find what Meaalii says to be more plausible. I do not find the explanation by the applicant to be satisfactory. I am also not sufficiently confident that if the applicant is granted bail he will not try to contact or communicate with Meaalii again.
24. The next important witness for the police is Talei Kelsall (Talei) the 13 year old step daughter of the applicant. Talei attends Robert Louis Stevenson College. She says in her affidavit of 20 November 2018 that while her statement was taken by a woman constable at the Apia police station she felt scared and intimidated by the applicant who was also at the police station as the applicant was consistently glaring at her. She felt so scared and upset that she was unable to finish her statement and had to come back to the police station another day to finish her statement. This is denied by the applicant in his affidavit of 28 November 2018. The applicant says that he was making a statement to a police officer at the Apia police station on the day in question. During one of the breaks from making his statement, he was allowed to go outside to smoke a cigarette. As he was walking out, he glanced up and looked at Talei who was being interviewed by a woman constable and simply walked past her. He did not stand and glare at her. It is not possible to reconcile these conflicts between the affidavit of Talei and that of the applicant without calling oral testimony. Counsel for the applicant preferred not to call oral testimony and counsel for the respondent did not strongly resist.
25. The police witnesses Talei, Meaalii and Moira McFarland say in their affidavits that on a day when Talei and Meaalii were interviewed at the Apia police station, the applicant was seeing driving around the police station. Talei and Meaalii were scared because of what they knew of the applicant. This is also denied by the applicant who says in one of his two affidavits that he was not driving around the police station in a car while Talei and Meaalii were interviewed by the police. An affidavit sworn by a relative of the applicant supports what the applicant says. Again, I am not able to resolve this conflict between the affidavits of Talei, Meaalii and Moira McFarland and the affidavits of the applicant and his relative in the absence of oral testimony.
    
26. Counsel for the respondent, however, is concerned that if the applicant is granted bail he will stay with his family at Falelauniu but Talei attends school at Robert Louis Stevenson College. Because of the proximity of Falelauniu to the Robert Louis Stevenson College, counsel for the respondent submitted that there is a significant risk that the applicant may interfere with this police witness who is scared of the applicant because of what she claims to have been done by the applicant to her and her mother in the past. What comes out quite clearly from the affidavits of Talei and Meaalii who had stayed together with the applicant and the deceased when she was alive is that these two police witnesses are very scared if the applicant is granted bail.
27. I have carefully weighed up the material placed before the Court and the submissions of counsel and I am satisfied that there is a real and significant risk that the applicant may interfere with police witnesses if granted bail.
    • (c) Third risk: Is there a risk that the applicant may offend while on bail?
28. I am not satisfied that the respondent has demonstrated that there is a real and significant risk that the applicant may reoffend if granted bail. This is separate from the risk of interfering with witnesses which can also amount to the offence of obstructing or perverting the course of justice. The applicant has no criminal history of offending or offending while on bail. There is also nothing in the material before the Court to suggest with sufficient clarity that the applicant may reoffend if granted bail.
    • (d) Fourth issue: Is there any matter that would it make it unjust to detain the applicant?
29. The criminal cases already set down for hearing are now up to May 2019. It may be unjust to detain the applicant until that time because of the presumption of innocence. Counsel for the respondent has agreed for this case to be heard in February 2019 and for some of the criminal cases already set down for that month to be moved. That should answer any concern that if bail is denied the applicant will be kept in custody for about six months to await trial.

Conclusion

30. As I am satisfied that there is a real and significant risk that the applicant may interfere with police witnesses if granted bail and there is no other matter that would make it unjust to continue to detain the applicant, the application for bail is denied.
31. This matter is further adjourned for re-mention on Monday 10 December 2018 to set a hearing date in February 2019.

CHIEF JUSTICE