Police v Foai [2018] WSSC 99 (21 August 2018)

IN THE SUPREME COURT OF SAMOA
Police v Foai [2018] WSSC 99

Case name:	Police v Foai
Citation:	[2018] WSSC 99
Decision date:	21 August 2018
Parties:	POLICE v RAPI FOAI, male of Lepea.
Hearing date(s):	14 August 2018
File number(s):	S930/18 & S931/18
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- Accordingly, I am satisfied that there is just cause for the continued detention of the accused. - You are remanded in custody to the week commencing 5 November 2018 for the hearing of your matter. - If the hearing does not proceed that week, you may wish to re-apply through counsel for bail at that point in time.
Representation:	F Ioane for Prosecution M Soonalole for Accused
Catchwords:
Words and phrases:	Murder, breach of bail condition.
Legislation cited:	Criminal Procedure Act 2016
Cases cited:	B v Police (No 2)[2000] 1 NZLR 31 Police v Ah Ching[2016] WSSC 31, Police v Barlow [2017] WSSC 107 (26 July 2017) Police v Posala [2015] WSSC 92. Sapolu CJ, R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122, 125.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

RAPI FOAI, male of Lepea
Accused

Counsel:
F Ioane for Prosecution
M Soonalole for the Accused

Sentence: 21 August 2018

RULING ON BAIL APPLICATION

1. On the 14th June 2018, the accused was charged with murder and in the alternative, manslaughter.
2. On the 18th June 2018, he was granted bail by the Honourable Chief Justice. The accused accepts through counsel that he has failed to comply with his bail condition that he reside at Matautu-tai in that he visited his family at Lepea to see his 7 year old daughter (paragraph 4, affidavit of accused).
3. As a result of the breach of his bail conditions, the accused was arrested and remanded in custody on the 30th July 2018.
4. The accused applies for bail on the grounds that:
   • (i) He has entered a plea of not guilty;
   • (ii) He only went to Lepea to visit his 7 year old daughter who has been sick, unwell and not attending school;
   • (iii) His remand in custody would be prejudicial to the preparation of his defence;
   • (iv) That he will not tamper with and it would be impossible to tamper with any prosecution witnesses;
   • (v) That he has breached one condition of bail but has otherwise not re-offended;
   • (vi) He is not a flight risk; and
   • (vii) If granted bail, he will relocate with his family to his sister at Vailele.
5. The accused and his wife have filed affidavits in support of bail. There is also an affidavit provided by the Secretary of the Village Council of Lepea advising that the accused has now been banished from Lepea and that village families have been informed that should the accused be sighted in the village, the authorities should be contacted.
6. The application for bail is opposed by the prosecution on the grounds that:
   • The accused is not bailable as of right;
   • There is a high risk that the accused may interfere with prosecution witnesses and evidence;
   • The seriousness of the punishment to which the accused is liable and the severity of the punishment that is likely to be imposed; and
   • The strength of the prosecution evidence against the Accused and the probability of conviction.
7. Prosecution has filed 6 affidavits in support of opposing bail.

Factual Background:

8. There is no evidential material before the Court setting out the background to the alleged offending. There is also no evidence before me that links the accused to the alleged assault on the deceased. Prosecution advises that the relevant witness presented late and they were accordingly unable to complete and file the affidavit setting out the alleged offending by the accused by the bail hearing date.
9. I have however referred to the autopsy report of Dr Paul Botterill which details the deceased various alleged admissions to hospital. Dr Botterill reports an alleged assault on the deceased complicated by ‘left frontal skull fracture’ in November 2017. In February 2018, the records show subsequent cerebral abscess which was treated with antibiotics. The deceased however allegedly absconded from hospital before treatment was completed. He re-presented to hospital on the 9th April 2018 following a 4 day history of impaired consciousness, confusion, disorientation, fevers and chills.
10. The report notes the deceased’s condition as varied but then deteriorated and urgent surgical drainage of the access was performed on the 18th April 2018. His condition did not improve and the deceased allegedly passed away the following morning. This history may invoke section 96 of the Crimes Act 2013.
11. In any event, after the accused was charged and granted bail on or about the 18th June 2018, it is not in dispute that the accused breached bail by going to Lepea. According to the various prosecution affidavits, the accused was at Lepea between the 24th June to the 23rd July 2018.Through counsel, it is submitted that the accused visited Lepea. Based on the prosecution affidavits, I do not accept the submission by accused counsel that the accused visited Lepea. I am satisfied on balance that the accused resided at Lepea and not Matautu-tai between approximately the 24th June to the 23rd July 2018. Three prosecution deponents state that the accused was living with his family at Lepea.
12. While at Lepea, the accused took an active part in village affairs. The un-contradicted evidence is that he participated in the Sunday village toonai, the conduct of the village asiasiga and the collections of money.
13. While at Lepea, the most serious issue that I must consider are the altercations that the accused is alleged to have become involved. These include:
    • (a) With the prosecution witness Avaisega Sione and cousin of the deceased, an argument with Avaisega following a dispute between the accused children and Avaisega’s niece or nephew where the accused is said to have threatened the witness by stating “Fa’akalikali oe pe a uma le fa’amasigoga”. Avaisega Sione says that he and his children are scared of the accused and he is known to be violent;
    • (b) Fa’alua Tafea, a cousin of the deceased deposes that between 24th June and 23rd July 2018, arguments occurred with the accused whereby he threatened Fa’aluaTafea and his family stating “Fa’akalikali le kou i le iuga e o’oaipe a uma le fa’amasigoga”; and
    • (c) A third deponent with no family relationship with the accused or deceased deposes to a ‘little altercation’ between her husband and the accused over the village collection and refers to the accused as arrogant and violent.
14. There is no affidavit evidence on behalf of the accused disputing these allegations.
15. Whilst the accused and his wife say that the reason the accused returned to Lepea was to care for his “7 year old daughter who was very sick and unsettled as she had not seen me in a while”, there is also no medical evidence to support the alleged illness.
16. The accused says that it would be prejudicial for his defence if he was remanded in custody and that if granted bail, he will relocate his family to Vailele.

The Relevant Law:

17. The relevant statutory provisions for applications for bail are sections 98, 99, 105 and 112 of the Criminal Procedure Act 2016 (“CPA”).
18. Section 112 of the CPA provides that a constable may arrest without warrant any defendant that the constable believes on reasonable grounds that the defendant has contravened any condition of bail (section 112(1)(b)). The defendant must be brought before the Court as soon as possible (section 112(2)) and in any such case, the Court must reconsider the question of bail if it is satisfied that the defendant has contravened or failed to comply with any condition of bail (section 112(3)).
19. Section 98 of the CPA sets out the rules as to the grant of bail. The accused is not bailable as of right. Accordingly, he 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.” (section 98(4), CPA)
20. 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:

21. In Police v Barlow [2017] WSSC 107 (26 July 2017), the Honourable Chief Justice articulated the approach to bail applications which had earlier been 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.”

22. 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.
23. In addition to considering the risks, Sapolu CJ further stated:

“11. 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:

24. The start point of any application for bail is that a person who has pleaded not guilty must be presumed to be innocent of the charged offending until proven guilty according to the law(article 9(3), Constitution of the Independent State of Samoa 1960). The onus remains in this case on prosecution to show why bail should not be granted.
25. I will turn to the specific grounds raised by Prosecution.

There is a high risk that the accused may interfere with prosecution witnesses and evidence:

26. Based on the affidavit evidence filed on behalf of prosecution, the accused had an exchange of words with one of the Prosecution witnesses, Avaisega Sione. That exchange of words occurred following an altercation between the accused’s children and the deponent’s sister’s children. According to Avaisega Sione, the accused threatening remarks makes specific reference to what will happen after the Court case.
27. Two other prosecution deponents also refer to altercations with the accused whilst he was on bail and residing in Lepea. One of those other deponents also alleges that the accused made threatening remarks about what will happen after the Court proceedings.
28. I accept that there is a moderate risk of the accused interfering with prosecution witnesses and evidence. The accused conduct whilst on bail and his flagrant disregard for his bail conditions and actions satisfy me that this moderate level of risk exists.

The seriousness of the punishment to which the accused is liable and the severity of the punishment that is likely to be imposed

29. The charge of murder and manslaughter are serious charges. If convicted of murder or manslaughter, there is no question that the punishment that the accused will be liable to will be life imprisonment for murder and for manslaughter, up to life imprisonment.

The strength of the prosecution evidence against the Applicant and the probability of conviction.

30. In opposing bail, the prosecution grounds of opposition refers to the strength of the evidence against the accused and the probability of conviction. There is no material before me filed by the prosecution that supports the strength of the evidence against the accused and the probability of a conviction. I therefore cannot assess the strength and probability of conviction on the material before me.

Other Factors:

31. The accused is 56 years of age and has no prior convictions. His past character and the absence of any proven criminal conviction weighs in his favour for the grant of bail. Similarly, as he has no prior convictions, there is no history of offending. There is also no history of breaching Court orders when on bail, except for the breach of bail conditions which he accepts has occurred in this case.
32. Through counsel, it is the accused submission that his continued detention will prejudice his preparations for trial. He does not set out how his continued detention will prejudice the conduct of his defence. It is not uncommon for prisoners and those on remand in custody to make preparations for their trial from custody. I do not accept on the material before me that continued detention will affect his preparations.
33. The offence for which the accused is charged is the most serious of charges being that of murder and in the alternative, manslaughter. There is therefore no question that the charges against the accused are serious charges. As the New Zealand Court of Appeal however held in R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122, 125 and followed in B v Police (No 2)[2000] 1 NZLR 31, the seriousness of the charge in itself is not however enough to deny bail. In B v Police, The Court of Appeal stated:

“[8] The seriousness of the charge faced will not in itself provide a justification for refusal of bail. Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also that there is something additional which favours detention of the accused in the public interest, and that combination of factors is not outweighed by considerations favouring bail. The societal interest must be unable to be met by the granting of bail upon terms as to residence, reporting to police, curfew, non-association, travel restrictions and the like.”

34. Whilst the accused has no prior convictions or history of offending when on bail, the circumstances of his breach of his bail conditions and conduct at Lepea while in breach of bail leads to serious concern as to whether or not he will comply with any further bail conditions that the Court might impose today. Within approximately a week of his release on bail by the Chief Justice, the accused returned to Lepea and resided there. Lepea is also the location of the alleged assault on the deceased.
35. At Lepea, rather than avoiding incident given the very serious and pending matters before the Court, the accused became embroiled in a number of disputes including the alleged threatening of a prosecution witness and others within the Lepea community.
36. The accused justifies his return to Lepea to care for his sick daughter. There is no independent medical evidence of her illness and certainly nothing that suggests any such illness was life threatening. The accused blatantly breached his bail conditions and did so over the course of a month between June and July. The appropriate course for him was to seek variation of bail conditions.
37. By itself, the accused return to Lepea in breach of bail might lead to a conclusion that just cause did not exist for the continued detention of the accused pending hearing. However, on returning to Lepea, the accused became involved in a number of arguments including with a prosecution witness. In that argument and another, the accused on the evidence before me expressly referred to what will occur when the Court proceedings are completed.
38. In my view, given his recent conduct and blatant breach of his bail conditions within a week of his earlier release on bail, there is a real and significant risk that the accused will not comply with any restrictive bail conditions imposed by this Court. I am not satisfied that societal interests can be met by appropriate bail conditions.
39. In reaching this conclusion, I also note that the trial of this matter is set down for week commencing 5 November 2018. That hearing date is approximately two and a half months from today. The time to trial will not be unnecessarily lengthy.

Conclusion:

40. Accordingly, I am satisfied that there is just cause for the continued detention of the accused.
41. You are remanded in custody to the week commencing 5 November 2018 for the hearing of your matter.
42. If the hearing does not proceed that week, you may wish to re-apply through counsel for bail at that point in time.

JUSTICE CLARKE