Police v Mapu [2022] WSSC 3 (25 February 2022)

SUPREME COURT OF SAMOA
Police v Mapu [2022] WSSC 3

Case name:	Police v Mapu
Citation:	[2022] WSSC 3
Decision date:	25 February 2022
Parties:	POLICE (Prosecution) AND AFUALO FAUMUI DARYL MAPU male of Nuu-fou and Sapapalii (Defendant)
Hearing date(s):	18 February 2022
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	I Atoa and Ms Tiitii for prosecution L Su’a-Mailo for defendant
Catchwords:	- Bail application - rules as to granting bail – factors relevant to decision as to bail.
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016, section 98 & 99 Narcotics Act 1967
Cases cited:	Police v Posala [2015] WSSC 92 Lam v Police [2018] WSSC 119
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AFUALO FAUMUI DARYL MAPU, male of Nuu-fou and Sapapalii.
Defendant

Counsel:
I Atoa and Ms Tiitii for prosecution
L Su’a-Mailo for defendant
Hearing: 18 February 2022
Decision: 25 February 2022

DECISION OF THE COURT
(Bail application)

1. The defendant and another face a number of charges arising out of a Police raid on 28 December 2021 on his house at Nuufou, Vaitele. All charges carry severe penalties of imprisonment which are normally applied in the current environment of the prevalence of narcotics offending.
2. It is alleged he was in possession of a quantity of methamphetamine (weighing at least 1.6 grams), drug utensils (2 glass pipes) an assortment of unlawful weapons (pistols, a shotgun, a semi-automatic) and live ammunitions. His female co-defendant has been released on pre-trial bail with the consent of the Police who however oppose the defendants release from custody.
3. The defendant is a first offender, has no previous conviction or history of drug offending and holds a senior position in the Samoa Public Service. His counsel has ably argued he is no flight risk and his continued detention is having adverse financial and other consequences upon him and his family. He has also filed an affidavit from a tenant of his house that the narcotics and weapons belong to him and not the defendant. Why this was not previously revealed to the Police is a mystery.
4. As counsel have rightly pointed out, the law governing bail is settled. The requirements have been codified by Parliament in sections 98 and 99 of the Criminal Procedure Act 2016 which provide:

“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.

(3) Despite anything in this section, a defendant who is charged with an offence punishable by imprisonment is not bailable as of right if the defendant has been previously convicted of an offence punishable by imprisonment.

(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.

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.”

5. Cases such as Police v Posala [2015] WSSC 92 and Lam v Police [2018] WSSC 119 are to be read as subject to the mandatory criteria the court in exercising its discretion to grant bail must have regard to as outlined in section 99. Which includes the catch-all provision in section 99(k) that the court may have regard to “any other matter that is relevant in the particular circumstances.” This allows the court to consider all the circumstances of a particular case.
6. Applying the section 99 criteria to the present matter:
   • (a) Non-appearance: given that the defendant lives in Samoa, is married with children, owns his own house and is in meaningful employment, it appears the defendant would pose a minimal flight risk. There is no apparent reason why the defendant would fail to appear in Court. Furthermore his travel documents would be surrendered and other measures put in place as part of a bail process. Even given that occasionally these are not foolproof measures, the travel and other restrictions that currently operate due to the Covid pandemic would make life that much more difficult for potential absconders. Defendants counsel also assured the court from the Bar that the defendant only has a Samoan passport and is therefore not eligible for visa-free travel.
   • (b) Witnesses interference: although raised by the prosecution in their Submissions as a ground, there was nothing by way of evidence adduced to substantiate the Police concerns. In any event, the majority of the prosecution witnesses would be the Police officers who partook in the raid. The suggestion that the defendant could interfere with Police confidential informers was again not supported by any reliable factual, affidavit or other evidence.
   • (c) Record: as noted, the defendant has a clean record.
   • (d) Re-offending: the prosecution placed much reliance on this in their opposition but their arguments were based on the fact that the defendant was a proven drug user/addict who should not be allowed to return home “to the scene of the crime” as it were. These are things which the defendant denies as he does ownership and possession of the narcotics and weapons. His position is there was no crime, the materials discovered by the Police belong to his tenant. He is of course entitled to the Constitutional presumption of innocence until proven guilty. The issue is however muddled by affidavits filed by the defendant about potential treatment and support in relation to any drug addiction. It must however be noted the defendant has no history of drug offending or even involvement in such matters, at least as per what has been placed before the Court.
   • (e) Punishment: there is no question about the seriousness of the offences the defendant is charged with or the likely penalty.
   • (f) and (g): The history of the defendant has been referred to above.

(h) Gravity: again there is no question the defendant faces serious and grave charges, particularly when viewed in their totality.

(i) The evidence: on this issue there is much contention. The prosecution point to the fact that the methamphetamine was found on the defendants person and that he was inside the relevant room, now said by the defendants tenant to be part of the unit annexed to the defendants home which he rents. The prosecution argue that notwithstanding the tenants claim of ownership, this puts the defendant in possession of the narcotics, weapons and other materials.

While that is a valid argument, the question of whether it amounts to “knowingly” being in possession of such materials is ultimately a question of fact to be determined from all the circumstances. It is relevant in this regard that the defence case is the defendant had no knowledge the pants that he put on in the haste of the Police arrival contained the packets of methamphetamine described by the tenant as “his stash”. Why the defendant did not have possession of pants before the Police arrived was not explained but these are questions to be determined at the eventual trial of this matter when all relevant matters will be revealed.

Suffice for present purposes to state that while the prosecution have a prima-facie case, the defendant has raised a defence which will require consideration. This is not a case where the facts clearly show the defendant has no defence to the charges and the probability of conviction is high. This is not the appropriate stage in the criminal process for fine measurements of credibility or evaluating in detail the merits of the prosecution and defence evidence. That is a matter for trial.

(j) this is a repetition of (e) above.
(k) Other factors: under this head should be considered the time delay until trial which I am informed by the Deputy Registrar stands at around six to seven months, possibly longer depending on whether further lockdowns due to the Covid pandemic occur. In such an unstable environment and in pursuance of a national strategy to minimise large gatherings and grouping of people, there is presently an inclination on the part of the courts to remand defendants on bail where-ever possible unless there is good reason, or as the statute says “just cause” to do otherwise.

7. I am not satisfied there is just cause for the defendants continued remand in custody. In the exercise of the courts discretion the defendant will be granted bail on the following conditions which I warn the defendant are to be strictly adhered to:
   • (i) If not already done so he is to forthwith surrender any and all travel documents to the Registrar of the Court to be held pending final determination of these charges;
   • (ii) The Registrar to immediately issue a Departure Prohibition Order as against the defendant;
   • (iii) Defendant and two sureties acceptable to the Registrar to execute good behaviour bonds on the part of the defendant pursuant to section 107 of the Criminal Procedure Act in the sum of $5,000 for the defendant and $2,500 each surety guaranteeing the good behaviour of the defendant until final disposition of this matter;
   • (iv) Defendant not to contact or attempt to contact his co-defendant or any prosecution witnesses including by way of any form of social media;
   • (v) Report to Faleata Police Post before 12:00 noon every Tuesday and Thursday;
   • (vi) This matter is adjourned to 07 March 2022 for entry of the defendants plea to the charges.
8. As offences under the Narcotics Act 1967 are not triable by Assessors, the prohibition on publication of the details of this matter is lifted.
   

JUSTICE NELSON