Police v Faasau [2018] WSSC 54 (6 April 2018)

SUPREME COURT OF SAMOA
Police v Faasau [2018] WSSC 54

Case name:	Police v Jeremiah Faasau
Citation:	[2018] WSSC 54
Decision date:	6 April 2018
Parties:	POLICE v JEREMIAH FAASAU male of Moataa.
Bail Variation Hearing date(s):	29 March 2019
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- The accused is granted bail to re-appear for mention on Monday 16 April 2018 at 10.00am to set a new hearing date on the following conditions: (i) The accused is to surrender all travel documents; (ii) The accused is to report to Apia Police every Monday before 12.00pm; (iii) The accused is to reside with Masa Fa’asau at Moata’a; (iv) He is prohibited from consuming alcohol whilst on bail; and (v) He is not to approach or make contact with any prosecution witnesses.
Representation:	F Ioane for prosecution A Faasau for the Accused
Catchwords:	accused is granted bail
Words and phrases:	The complainant however does not give any description of ‘the accused’
Legislation cited:	Criminal Procedure Act 1972 (repealed) and Criminal Procedure Act 2016
Cases cited:	Police v Barlow [2017] WSSC 107 (26 July 2017) his Honour Sapolu CJ, Police v Posala [2015] WSSC 92. Sapolu CJ, Police v Ah Ching [2016] WSSC 31
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

JEREMIAH FAASAU male of Moataa.
Accused

Counsel:
F Ioane for prosecution
A Faasau for the Accused

Decision: 6 April 2018

S E N T E N C E

1. The accused is said to be a 23 year old male from Moata’a. Since his arrest on the 7^th February 2018, the accused has been remanded in custody. He now applies for bail through counsel.
2. According to the affidavit evidence, the accused resides at Moata’a with his parents and paternal aunty Masa Fa’asau. He has entered a not guilty plea to the charges of burglary, theft, assault causing actual bodily harm, armed with a dangerous weapon and insulting words.
3. Prosecution states that the charges against the accused are scheduled to be heard in the Supreme Court on the 23^rd July 2018. The Court records show that no hearing date has been scheduled so at the end of this ruling, this matter will be adjourned for mention to Monday, 16 April 2018 at 10.00am to set a hearing date.

The Affidavit Evidence:

4. In support of the bail application, the accused has filed an affidavit. In his affidavit, he says that he has always attended his previous court matters and that he is not a flight risk. He has also filed an affidavit by Masa Fa’asau, his paternal aunty and by Justin Sagaga, a 28 year old male of Moata’a.
5. According to Masa Fa’asau, the accused has been in trouble with the law numerous times in the past. He resides with his parents and her at Moata’a. She deposes that in the accused previous matters before the Court, she ensured the accused attended Court and she will also do so for this matter now before the Court.
6. Masa Fa’asau says that on the night of the alleged assault on the complainant ‘Martin Tamasese’, the complainant described his assailant as short, fair skinned and wearing a jersey with red designs.
7. In his affidavit, Justin Sagaga says he was drinking ‘Russian Vodka’ mixed with a lot of water at his house with friends including the accused. After drinks and returning to his home, he heard a noise from the road. He went to the road and he saw the accused making noise there with his cousins and neighbors around. The complainant was also there and he asked the complainant what had happened. The complainant said he was assaulted by a short fair boy. He did not ‘say that it was Jerry.’
8. In opposing bail, prosecution has filed two affidavits. The first is by Constable Vaivali Laulu. Constable Laulu is the Investigating Officer and strongly opposes bail as the accused (a) has a previous conviction in 2015 for burglary and theft for which he was imprisoned for 9 months and (b) there is a likelihood that he will re-offend when he is granted bail given his previous conviction.
9. The second affidavit is by Edwin Tamasese, the complainant. In his affidavit, he describes the alleged events on the night of the 2^nd February 2018. He says he saw ‘the accused pulling a glass window louver’, the accused running ‘towards him’ and the accused hitting him ‘with the glass and it hit the left side of my face.’ He says that he could see the face clearly ‘as the light from the kitchen was shining on his face’. The complainant however does not give any description of ‘the accused’. He also does not give any account of how he has identified ‘the accused’ as the alleged assailant for example, if he had seen him before and if so, where he had seen him so as to give a foundation to his identification of the accused as the alleged perpetrator.

The Application:

10. The accused application for bail is made pursuant to section 71 of the Criminal Procedure Act 1972 (repealed). The CPA 1972 has been repealed and replaced with the Criminal Procedure Act 2016 (“the CPA 2016”). The application for bail also states that the accused is also seeking an amendment to his bail conditions “to allow the defendant to travel to New Zealand.” This application is treated as brought pursuant to the CPA 2016, the provisions of which were relied on by both counsels in their submissions. The application for bail also does not seek orders permitting the accused to travel to New Zealand, that ground apparently having been made in error.
11. The application by the accused is opposed by the prosecution.

Relevant Law:

12. The relevant provisions for applications for bail are sections 98, 99 and 105 of the CPA 2016. Section 98 of the CPA relevantly provides:

“98. Rules as to granting bail - (1) A defendant is bailable as of right who is charged with an offence that is not punishable by imprisonment.
(2) A defendant is bailable as of right who is charged with an offence for which the maximum punishment is less than 3 years’ imprisonment, unless the offence is one that relates to assault on a child, or by a male on a female.
...
(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.” (emphasis added)

13. Section 99 of the CPA sets out factors relevant to the determination of bail. Section 99 provides:

“99. Factors relevant to decision as to bail - In considering whether there is just cause for the defendant to be remanded in custody or for continued detention, a Court must take into account the following:

(a) whether there is a risk that the defendant may fail to appear in Court on the date to which the defendant has been remanded;

(b) whether there is a risk that the defendant may interfere with witnesses or evidence;

(c) any previous conviction on an offence of a similar nature;

(d) whether there is a risk that the defendant may offend while on bail;

(e) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;

(f) the character and past character or behaviour, in particular proven criminal behaviour of the defendant;

(g) whether the defendant has a history of offending while on bail, or breaching Court orders including other orders imposing bail conditions;

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

(i) the strength of the evidence and the probability of conviction or otherwise;

(j) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;

(k) any other matter that is relevant in the particular circumstances.

Approach to Application for Bail:

14. In Police v Barlow [2017] WSSC 107 (26 July 2017), His Honour Sapolu CJ articulated the approach to bail applications which the Chief Justice had earlier discussed in Police v Posala [2015] WSSC 92. Sapolu CJ stated in Barlow (supra):
    

“8. In Police v Posala [2015] WSSC 92, this Court, on the basis of New Zealand authorities, said that in dealing with a bail application, the real question to be considered is whether there is just cause for the continued detention of the accused in custody. In considering that question, the Court must take into account:

(a) whether there is a risk that the accused may fail to appear on the date to which he has been remanded; or

(b) whether there is a risk that the accused may interfere with witnesses or evidence; or

(c) whether there is a risk that the accused may offend while on bail; and

(d) any matter that would make it unjust to detain the accused.

9. As it appears from Police v Posala [2015] WSSC 92, paras 3, 17; Police v Ah Ching [2016] WSSC 31, para 12, it is not just any type of risk that will be enough to justify denying bail to the accused. The risk must be a ‘real and significant’ one and it is for the prosecution to establish that such a risk exists. Whether such a risk exists requires a proper inference to be drawn from proved facts.”
   
15. In assessing the risk therefore, the Samoan Courts’ approach to bail is that the risk must be ‘real and significant’, not just fanciful or hypothetical.
16. In addition to considering the risks, Sapolu CJ set out the other factors that the Court may have regard to. Sapolu CJ further stated:

“10. In determining whether there is just cause for continued detention of the accused, including whether any of the said risks exists, the Court may take into account the following factors:

(a) the nature of the offence charged;

(b) the strength of the evidence and the probability of conviction or otherwise,

(c) the seriousness of the punishment to which the accused is liable, and the severity of the punishment that is likely to be imposed,

(d) the character and past conduct or behavior, in particular proven criminal behavior, of the accused,

(e) whether the accused 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 accused is remanded in custody,

(h) any other special matter that is relevant in the particular circumstances.

17. The gravity of the offence with which the accused is charged is not of itself enough to justify a conclusion that there is a real and significant risk that the accused will not answer bail: Police v Posala [2015] WSSC 92, para 18; Police v Ah Ching [2016] WSSC 31, para 14.”

Discussion:

18. The key basis on which the prosecution opposes bail is that there is a risk that (a) the accused has prior convictions for the same offending and (b) therefore, he is a likely to re-offend on bail.
19. There is no dispute that the accused has a prior conviction for burglary and theft entered in the Supreme Court on the 8^th May 2015 and for which he was imprisoned for 9 months. The onus however is on the prosecution to show that there is a real and significant risk that the accused is likely to re-offend whilst on bail and “[w]hether such a risk exists requires a proper inference to be drawn from proved facts.”
20. There is no evidence before the Court that the accused has previously failed to appear before the Court when granted bail. There is also no evidence before the Court that when previously granted bail, that the accused offended when on bail. The only evidence is that of the accused prior conviction for theft and burglary entered on the 8^th May 2015 as a basis for the denial of bail.
21. Each application for bail must be considered on its own merits. In the circumstances of this application, the prior convictions in 2015 fall well short warranting the denial of bail to the accused. The accused himself says he has not previously failed to appear before the Court. This is reiterated by Masa Faasau who has also said that she would ensure his attendance at Court.
22. In reaching the decision to grant bail, I also consider that the prosecution case against the accused may not be strong. This is because of the likely evidence of Justin Sagaga as stated in his affidavit. Furthermore, if bail is denied, that would result in the accused being remanded in custody likely until late August on the current Supreme Court listing. In all the circumstances, that would be unjust.
23. Appropriate bail conditions can be imposed to mitigate against the risks of the accused offending or failing to appear.

Result:

24. The accused is granted bail to re-appear for mention on Monday 16 April 2018 at 10.00am to set a new hearing date on the following conditions:
    • (i) The accused is to surrender all travel documents;
    • (ii) The accused is to report to Apia Police every Monday before 12.00pm;
    • (iii) The accused is to reside with Masa Fa’asau at Moata’a;
    • (iv) He is prohibited from consuming alcohol whilst on bail; and
    • (v) He is not to approach or make contact with any prosecution witnesses.
      

JUSTICE CLARKE