Police v Pose [2023] WSSC 25 (3 May 2023)

IN THE SUPREME COURT OF SAMOA
Police v Pose [2023] WSSC 25 (03 May 2023)

Case name:	Police v Pose
Citation:	[2023] WSSC 25
Decision date:	03 May 2023
Parties:	POLICE (Prosecution) v LEULUAIOTUMUA JERRY POSE, male of Vaimoso (Accused)
Hearing date(s):	02 May 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	- Mr Pose, you are remanded on bail to re-appear week commencing 20 November 2023 on the following conditions: - surrender all travel documents to the Registrar of the Court; - report to Apia Police Station every Monday and Friday before 12.00pm; - reside at Magiagi with your maternal aunty, that is your mother’s sister as advised through counsel; - you are prohibited from stepping foot in Vaimoso whilst on bail; - you are prohibited from making any contact, whether directly or indirectly, in person, by phone, by email, text or any other means whatsoever with Nick Ah Kuoi or any of your other co-defendants or with any prosecution witnesses; and - you are not to offend whilst on bail.
Representation:	T. Sasagi for Prosecution A. Lesa for the Accused
Catchwords:	Bail application – charged of possession of methamphetamine – possession of marijuana – possession of dried marijuana branches – possession of loose marijuana leaves – possession of utensil – receiving stolen properties.
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016, ss. 98; 99; 105.
Cases cited:	Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 107; Police v Posala [2015] WSSC 92; Police v Stuart Webber (7 February 2023, Unreported).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

LEULUAIOTUMUA JERRY POSE male of Vaimoso.

Accused

Counsel: T Sasagi for Prosecution

A Lesa for the Accused

Bail Hearing: 2 May 2023
Ruling: 3 May 2023

RULING ON APPLICATION FOR BAIL

1. The accused Jerry Pose is charged with possession of methamphetamine, possession of marijuana seeds, dried marijuana branches and loose marijuana leaves; possession of utensil and receiving stolen properties valued at $184.60.

The Affidavit Evidence:

2. In support of the bail application, Mr Pose says that he is innocent, intends to defend the charges and that he will abide by his bail conditions. He resides in Samoa and has strong connections and family ties to Samoa.
3. Prosecution has filed the affidavit of Senior Sgt Lelefu Maatusi. Police oppose the grant of bail to Mr Pose on the grounds that:
   • (a) He has a prior conviction for PON;
   • (b) There is a risk that he will offend on bail;
   • (c) His character and past character and proven criminal behavior;
   • (d) The seriousness of the likely punishment to which he will be liable if convicted; and
   • (e) The gravity of the offence with which he is charged.

Relevant Law:

4. The relevant provisions for applications for bail are sections 98, 99 and 105 of the CPA 2016. In short, the Defendant 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.”
5. The factors relevant to the determination of bail are set out in section 99 of the CPA 2016. These include, in relation to those factors specifically raised by counsel, amongst others:
   • 99(b) whether there is a risk that the defendant may interfere with witnesses or evidence;
   • 99(c) any previous conviction on an offence of a similar nature;
   • 99(d) whether there is a risk that the defendant may offend while on bail;
   • 99(e) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
   • 99(f) the character and past character or behaviour, in particular proven criminal behaviour of the defendant;
   • 99(g) whether the defendant has a history of offending while on bail, or breaching Court orders including other orders imposing bail conditions;
   • 99(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;
   • 99(j) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
6. I also raised with counsel section 99(i), the strength of the evidence and the probability of conviction or otherwise.

Approach to Application for Bail:

7. The approach to bail has been set out by the Court in many earlier cases with oft cited authorities such as Police v Barlow [2017] WSSC 107 (26 July 2017) and Police v Posala [2015] WSSC 92. I will not reiterate what those cases say except only the type of risk that justifies denying an accused bail. As Sapolu CJ stated in Police v Barlow:
   • 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.”
8. 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:

9. There is no question whatsoever that the charges that Mr Pose is charged with are serious. The charge of possession of methamphetamine is particularly serious and carries a maximum penalty of up to life imprisonment. If convicted, Mr Pose will almost inevitably be sentenced to prison. As the point has been made in Police v Stuart Webber (7 February 2023) (Unreported), “in all but one case of methamphetamine possession that has come before Samoan Courts, even for small amounts, a deterrent sentence involving imprisonment has been imposed.”
10. The key basis of prosecution’s opposition to bail is that (a) the accused has a prior conviction for the same offending and (b) therefore, he is a risk re-offending while on bail.
11. There is no dispute that the accused has a prior conviction for possession of narcotics entered in August 2013 and for which he was convicted and ordered to come up for sentence within 12 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.”
12. There is no evidence before me that the accused has previously failed to appear before the Court when granted bail. There is also no evidence before me that if previously granted bail, the accused offended when on bail. The only evidence is that Mr Pose was convicted in 2013 and ordered to come up for sentence within 12 months if he re-offended. His sentence was not called up. It has also been 10 years since Mr Pose was previously dealt with by the Court and given the sentence imposed, his offending must have been at the much lower end of gravity in this type of offending. On the material before me, I am not satisfied that Mr Pose represents a real and significant risk of re-offending if granted bail.
13. Senior Sgt Lelefu Maatusi states in his affidavit that the alleged offending took place on the Defendant’s property and that marijuana substances were found in the Defendant’s wallet. Although not a ground expressed in prosecution’s opposition to bail, I raised with counsel the strength of prosecution’s case given this statement by Senior Sgt Maatusi. Given that this was not raised as a ground of prosecution’s opposition to bail, trial documents are not available and counsel did not make detailed submissions on this point, I will not turn to this question.
14. Each application for bail must be considered on its own merits. In the circumstances of this application, the prior conviction in 2013 falls short of warranting the denial of bail to the accused. There is no evidence that Mr Pose has previously offended on bail, breached bail or failed to appear before the Courts. Although the charges are very serious, he is presumed innocent until proven guilty. Relevant also is that if bail is denied, the trial is 6 months away. Although Defendants can be remanded in custody for that length of time, in the circumstances of this case and given the merits of this application, that is too long a period. In all the circumstances, I am not satisfied that there is just cause to remand the Defendant in custody any further.
15. Appropriate bail conditions can be imposed to mitigate against the risks of the accused offending or failing to appear.
16. Mr Pose, I have determined to grant you bail. It would be very wise of you while on bail to comply with all conditions that I impose and you stay out of any situation that may land you in trouble. That is because if you appear back again before the Court with any more charges, you will likely find yourself remanded in custody until your trial. Your lawyer told me yesterday you have found your remand in custody very difficult. You understand then what awaits you if you breach your bail conditions or offend while on bail.

Result:

17. Mr Pose, you are remanded on bail to re-appear week commencing 20 November 2023 on the following conditions:
    • (i) surrender all travel documents to the Registrar of the Court;
    • (ii) report to Apia Police Station every Monday and Friday before 12.00pm;
    • (iii) reside at Magiagi with your maternal aunty, that is your mother’s sister as advised through counsel;
    • (iv) you are prohibited from stepping foot in Vaimoso whilst on bail;
    • (v) you are prohibited from making any contact, whether directly or indirectly, in person, by phone, by email, text or any other means whatsoever with Nick Ah Kuoi or any of your other co-defendants or with any prosecution witnesses; and
    • (vi) you are not to offend whilst on bail.

JUSTICE CLARKE