Police v Sione [2020] WSSC 105 (22 July 2020)

IN THE SUPREME COURT OF SAMOA
Police v Sione & Anor [2020] WSSC 105 (22 July 2020)

Case name:	Police v Sione & Anor
Citation:	[2020] WSSC 105
Decision date:	22 July 2020
Parties:	POLICE (Prosecution) v LEMA’I FAIOSO SIONE also known as SIMANU FAIOSO SIONE male of Nuu and Tuasivi Savaii (First Defendant) and MALELE PAULO also known as KING FAIPOPO male of Vailoa Aleipata and Australia (Second Defendant).
Hearing date(s):	13 July 2020
File number(s):	S1531/19; S1551/19
Jurisdiction:
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The applications lack merit and are accordingly denied.
Representation:	L Su’a-Mailo for prosecution I Sapolu for defendants
Catchwords:	Conspiracy to murder – jointly charged.
Words and phrases:	“Application to leave jurisdiction” – “defendants granted bail pending trial” – “police oppose both applications”.
Legislation cited:	Crimes Act 2013, s. 106(1).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

LEMA’I FAIOSO SIONE also known as SIMANU FAIOSO SIONE male of Nuu and Tuasivi Savaii.

First Defendant

AND:

MALELE PAULO also known as KING FAIPOPO male of Vailoa Aleipata and Australia.

Second Defendant

Counsel: L Su’a-Mailo for prosecution
I Sapolu for defendants

Hearing: 13 July 2020
Decision: 22 July 2020

DECISION OF THE COURT
(Application to leave jurisdiction)

1. Defendants are jointly charged that between 30 April and 12 August 2019 they conspired with others to murder the Prime Minister of Samoa. Conspiracy to murder a person is pursuant to s.106(1) of the Crimes Act 2013 punishable by imprisonment for life. There is no doubting the seriousness of the allegation especially when involving an occupant of high public office such as in the present case.
2. To this charge the defendants pleaded not guilty and trial is scheduled for the week commencing 09 November 2020. The defendants have been granted bail pending trial subject to various conditions. These include surrender of their travel documents to the Registrar of the Court to be held pending final disposal of this matter and that they report periodically to the Police.
3. Defendants now seek variation of their bail to allow them both to travel to Australia. In the case of the first defendant, with his wife and three daughters for the birth of their first grandchild as well as for a medical checkup; and in the case of the second, to visit his wife and family in Sydney, Australia.
4. No supporting medical or other documents verifying the pregnancy of the first defendant’s daughter and the necessity for him to receive medical treatment in Australia has been provided. He is a permanent resident of Australia and it appears from his wife’s affidavit filed in support of an original bail application that she was resident in Australia until these charges were laid against her husband. If granted permission to travel the defendant denies any plans to remain in Australia and points to the fact that he owns freehold property and assets in Samoa worth approximately SAT$½m which he is prepared to make available to the Court as security for his return. He has family in Melbourne, Victoria which is where he will be residing.
5. The second defendant is a citizen of New Zealand as well as a permanent resident of Australia. Prior to this matter he was living in Sydney, Australia in the family home with his wife and children. He works as a roofer in Australia and was only arrested when he visited Samoa to bury his mother. Notwithstanding that his father lives here, clearly his place of normal residence is Sydney Australia.
6. Unsurprisingly, the Police oppose both applications. In respect of Malele Paulo they point inter alia to his tenuous ties to Samoa, the fact that he ordinarily resides in Australia where his wife and children presently live and the fact that he is a permanent resident of that country. For Lema’i Sione the absence of documents supporting his application, the fact that he too is a permanent resident of Australia and that his wife and daughters will also be travelling to support the birth of the grandchild. In respect of both defendants the seriousness of the charge is emphasised as well as the fact that while extradition is available as between Samoa and Australia, the process can be lengthy cumbersome and costly. To that must be added the further fact that additional hurdles are usually faced when seeking to extradite citizens and permanent residents of a country as opposed to non-citizens and non-residents.
7. The law applicable to bail and its conditions was exhaustively traversed by Tuala-Warren, J when she granted the defendants bail: see her ruling of 28 February 2020. I do not propose to revisit this other than to note that applications for variation of said bail conditions is that much more an exercise vesting in the discretion of the court.
8. In relation to the second defendant the risk of his failing to return for trial from his home country is extreme. I am also not persuaded as to the bona fides for his trip in this day and age of easily accessible video and other forms of communication with family members. I am also mindful trial day is a little over three months away and if the defendant genuinely wishes as he says to clear his name, no unreasonable or unduly burdensome effort will be required for his continued stay.
9. In respect of his co-defendant I am also not persuaded of the bona-fides of his trip given the absence of supporting documents and the fact that his wife and daughters will be attendant at the birth of his first grandchild. Again the easy availability of communication with Australia militates against any family or other hardship.
10. It is also relevant that at present Melbourne and the State of Victoria is in lockdown due to the increasing number of Corona Virus cases. I take judicial notice of the fact that its airports and ports are closed and that according to the Victoria State Government website their State of Emergency has been extended at this stage to 16 August 2020. There is no sign of this abating. So that even if permission were given the defendant would be barred from travelling. It is perhaps in his best interests to stay in COVID-free Samoa because people should run away from risk not towards it.
11. No amount of surety bond whether in cash form or otherwise overcomes the risks that are apparent and inherent in allowing the defendants at this point in time to travel to Australia. The applications lack merit and are accordingly denied.

JUSTICE NELSON