Police v Palemene [2020] WSSC 3 (24 January 2020)

SUPREME COURT OF SAMOA
Police v Palemene [2020] WSSC 3

Case name:	Police v Palemene
Citation:	[2020] WSSC 3
Decision date:	24 January 2020
Parties:	POLICE v FAAVAE PALEMENE male of Vaiafai Iva Savaii and Nuu Fou.
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Daryl Clarke
On appeal from:
Order:	- Bail is granted. - Matter is adjourned for mention to set a new hearing date to Monday 3 February 2020 at 10.00 on the conditions that the accused: (a) surrender all travel documents to the Registrar of the Court; (b) reside with his cousin Tofilau Vaima’a Taua at Safaatoa, Lefaga and he is not to reside at any other location except with a variation to these bail conditions by order of the Court; (c) report every Tuesday and Friday at the Lotofaga Police Post before 12.00pm; (d) is prohibited from stepping foot in Nuufou nor is he to have contact with any prosecution witnesses or the complainant whatsoever; and (e) (e) is to forthwith provide a cell phone number on which he is contactable during his bail period to his lawyer. -
Representation:	Q. Sauaga for Prosecution M Soonalole for Accused
Catchwords:	bail application
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016 s. 98(4),
Cases cited:	Lam v Police [2018] WSSC 119 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;
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

PO L I C E
Prosecution

A N D
FAAVAE PALEMENE, male of Vaiafai Iva Savaii and Nuu Fou.

Accused

Representation:
Q. Sauaga for Prosecution
M Soonalole for Accused

Bail Hearing: 17 January 2020
Ruling: 24 January 2020

BAIL APPLICATION RULING

1. The accused applies for bail. The application is opposed by prosecution on the grounds of (a) the strength of the prosecution evidence and probability of conviction; (b) the risk that the accused may fail to appear in Court on the date he is remanded to; and (c) his history of breaching his bail conditions.
2. The accused is charged with the attempted sexual violation, indecent assault and two charges of sexual connection. He has pleaded not guilty to the charges. He appears to have no prior convictions.

Background:

3. Following his arrest on or about 26 December 2018, the accused was remanded in custody and charged. On the 18^th February 2019, he was granted bail to re-appear on the 12^th August 2019 for hearing on the condition that (1) he surrender his travel documents; (2) resides with his family at Moata’a unless he has permission from the Court to change his place of residence; (3) signs at Apia Police every Tuesday and Friday before 12pm; and (4) that he is prohibited from stepping foot in Nuu-Fou.
4. According to the affidavit evidence of Constable Timena Faapue which is not in dispute, after the grant of bail, the accused signed at Apia Police from the 22^nd February 2019 to the 19^th March 2019 only. Following enquiries, the accused was found not to be residing at Moata’a and had relocated himself to Savaii. He then did not appear for his hearing on the 12^th August 2019 and the hearing date was therefore vacated. A Warrant of Arrest was issued and the accused was then remanded in custody on or about the 11^th November 2019.
5. The accused addressed the Court. He also filed an affidavit in support of bail. In his affidavit, the accused acknowledges that he breached bail so that he could stay with his children. He had been residing with a distant relative at Moata’a and wanted to see his children who he had been separated from. He expresses his deep remorse for not complying with his bail conditions, he now understands the importance of complying with bail, that he will comply with bail and not interfere with prosecution witnesses.

Relevant Law:

Approach to Application for Bail:

6. The approach to bail by the Samoan Courts is now well established (see: Lam v Police [2018] WSSC 119 (4 December 2018); 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).
7. The accused is not bailable as of right but 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), Criminal Procedure Act 2016 (‘the Act’).
8. The factors relevant to decision as to bail are set out in section 99 of the CPA. In Police v Barlow [2017] WSSC 107 (26 July 2017), Sapolu CJ articulated the approach to bail applications which he 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:
     • (f) whether there is a risk that the accused may fail to appear on the date to which he has been remanded; or
     • (g) whether there is a risk that the accused may interfere with witnesses or evidence; or
     • (h) (c) whether there is a risk that the accused may offend while on bail; and
     • (i) 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.”
9. 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.

Discussion:

10. After being granted bail, the accused within a month of the grant of bail breached his bail conditions by failing to sign at the Apia Police Station, relocating himself to Savaii and then ultimately not attending his hearing. In that time, he also made no contact with his lawyer about the hearing of his matter or afterwards and only had contact with the lawyer following his arrest. He chose to ignore the bail conditions imposed on him by the former Chief Justice. He now says that he is remorseful for having failed to comply with his bail conditions and that he understands the importance of complying with bail. He says that if granted bail, he will comply with bail conditions and he will not interfere with witnesses.
11. On the material before me, the accused has not interfered with prosecution witnesses, not contacted the complainant nor has he offended whilst on bail. He has no prior convictions, no prior history except those outlined here for breach of bail and having now been remanded in custody for some time, he says he now understands the importance of complying with his bail conditions.
12. He says that the reason why he breached bail was to be with his children. I do not accept this explanation entirely because not only did he breach his residency and reporting conditions of bail, he also failed to appear for his hearing.
13. In all however, I am not satisfied that there is just cause for his continued detention on the grounds that he may fail to appear or that he will he will again breach his bail conditions. Having been remanded in custody since early November 2019, a period of approximately two and a half months, I am satisfied that the accused who has otherwise not had other prior dealings with the justice system now understands the importance of complying with bail conditions imposed. He also seeks to be released on bail to a place where he will reside with his wife and children.
14. In terms of the strength of the prosecution case, I have perused the declaration of the five (5) year old complainant as well as that of her mother and grandfather. The complainant sets out the factual allegations against the accused. In his affidavit, the complainant’s grandfather explains that the accused is the husband of his house girl. He goes on to explain that he had allowed the complainant to go with the house girl to watch the house girl’s Sunday Church program. That night, the complainant had stated that the accused’s mouth had smelt of ‘tipi’. The accused was questioned by the grandfather about this, appeared nervous and on the following Thursday, the complainant allegedly made further statements to her grandfather about what the accused is alleged to have done to her. These statements are consistent with what the complainant says in her own declaration.
15. In my view, the strength of the prosecution case will be heavily dependent on the credibility and reliability of the complainant’s evidence, particularly under cross-examination. In my view, there is certainly prima facie sufficient evidence for the bringing of charges against the accused. However, the trial likely to be heavily dependent on credibility and the reliability of the complainant’s evidence, the likelihood of a conviction is probably evenly balanced. This factor both together with and in isolation of his risk of non-appearance or breaching bail do not at this juncture warrant his continued remand in custody.

Result:

16. In all, I am not satisfied that there is just cause for the continued remand in custody of the accused for the reasons I have set out above.
17. The accused must be aware that should he breach any of the bail conditions that I set out today, the outcome of any further application for bail will almost certainly be declined and he will be remanded in custody to await his hearing.
18. As a further warning to you Fa’avae, you have been granted representation through the taxpayer funded Legal Aid Scheme. This is at no cost to you but to the Samoan taxpayer. You have wasted a hearing date, Court and prosecution time by your conduct but also the time and cost of the Legal Aid funded counsel. If you should repeat your conduct, abuse the Legal Aid Scheme by failing to keep in touch with your lawyer and not instructing him as he needs to be instructed represent you, the grant of Legal Aid may be withdrawn and you will then need to pay for a lawyer yourself.
19. Bail is therefore granted. The matter is adjourned for mention to set a new hearing date to Monday 3 February 2020 at 10.00 on the conditions that the accused:
    • (j) surrender all travel documents to the Registrar of the Court;
    • (k) reside with his cousin Tofilau Vaima’a Taua at Safaatoa, Lefaga and he is not to reside at any other location except with a variation to these bail conditions by order of the Court;
    • (l) report every Tuesday and Friday at the Lotofaga Police Post before 12.00pm;
    • (m) is prohibited from stepping foot in Nuufou nor is he to have contact with any prosecution witnesses or the complainant whatsoever; and
    • (n) (e) is to forthwith provide a cell phone number on which he is contactable during his bail period to his lawyer.

JUSTICE CLARKE