Police v Pauga [2023] WSSC 61 (21 September 2023)

IN THE SUPREME COURT OF SAMOA
Police v Pauga [2023] WSSC 61 (21 September 2023)

Case name:	Police v Pauga
Citation:	[2023] WSSC 61
Decision date:	21 September 2023
Parties:	POLICE (Prosecution/Respondent) v TALALELEI PAUGA, male of Brisbane, Australia & Manono, Samoa (Defendant/Applicant)
Hearing date(s):	21st September 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The application for bail is granted upon the following conditions: (i) Pursuant to section 106(4) of the Criminal Procedure Act 2016 the defendant or his family to provide a $2,000 good behaviour bail bond to be paid to the Registrar to be forfeited to the State if the defendant fails to remain on good behaviour or otherwise breaches bail pending final disposition of his matter; (ii) To reside at Lalovaea at the residence of Josefina Fuimaono-Sapolu; (iii) To refrain from having any contact or interference with Prosecution witnesses by phone, internet or through any other person(s); (iv) To surrender all travel documents in the defendant’s possession; (v) Not to go anywhere near the complainant or his place of residence; (vi) To refrain from posting on social media including making live videos; (vii) To report to the Apia Police Station twice a week every Monday & Friday before 2pm.
Representation:	E Tiitii-Lam for Prosecution/Respondent F Tufuga for the Defendant/Applicant
Catchwords:	Bail application – defendant extradited from overseas – conspiracy to murder.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 106; Criminal Procedure Act 2016, ss. 98(4); 99; 99(a); 99(b); 99(d); 99(k); 106(4).
Cases cited:	Lam v Police [2018] WSSC 119; Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 103; Police v Posala [2015] WSSC 92; R v Lindsay James Tawairua Wilson [2003] NZCA 3.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of an application for bail pursuant to sections 98 & 99 of the Criminal Procedure Act 2016.

BETWEEN:

P O L I C E

Prosecution/Respondent

AND:

TALALELEI PAUGA, male of Brisbane, Australia and Manono, Samoa

Defendant/Applicant

Counsel: E Tiitii-Lam for Prosecution/Respondent
F Tufuga for the Defendant/Applicant

Hearing: 21 September 2023

Ruling: 21 September 2023

RULING O F TUATAGALOA J

Proceedings

1. These proceedings are concerned with an application by the applicant for bail. The applicant has been remanded in custody since being extradited to Samoa from Australia on 1 September 2023. He has been charged with conspiracy to murder pursuant to section 106 of the Crimes Act 2013. The penalty is life imprisonment.
2. On the morning of the hearing of the bail application, the defendant had yet to enter a plea to the charge(s) against him as Prosecution had not finalised the charge(s). On the same day prior to delivering the decision on bail, Prosecution finalised their charge and it was no different from the original charge. The defendant through his counsel entered a plea of not guilty.
3. The bail application is brought pursuant to s.98(4) of the Criminal Procedure Act 2016 (“CPA”) which provides:
   • “(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”.
4. Due to the nature of the charge against the applicant, he is not bailable as of right but at the discretion of the Court. The crucial question is whether there is just cause for the defendant to be remanded in custody.

Approach to a Bail Application

5. The modern approach of the Samoan Courts to an application for bail is now well established: Police v Posala [2015] WSSC 92; Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 103; Lam v Police [2018] WSSC 119 to name a few.
6. The modern approach involves two stages. The first stage is mandatory and the second stage involves consideration of discretionary matters. The first stage in considering whether there is just cause for a defendant to be remanded in custody, the Court must take into account:
   • (a) Whether there is a risk that the defendant may fail to appear on the date to which he has been remanded; or
   • (b) Whether there is a risk that the defendant may interfere with witnesses or evidence; or
   • (c) Whether there is a risk that the defendant may offend while on bail; and
   • (d) Any matter that would make it unjust to detain the defendant.
7. The above considerations are stated in s.99 (a), (b), (d) and (k) of the Criminal Procedure Act 2016. The risk must be a ‘real and significant’ one and not just any fanciful or hypothetical risk. The prosecution must prove a real and significant risk.
8. The next stage of this approach in assessing the risks that would make it unjust to detain the defendant is the Court may take into account the other matters stated in s.99. These matters are discretionary.
9. No one factor is decisive. All the various factors, including the presumption of innocence, need to be weighed in the balance in the exercise of the Court’s judgment, before arriving at a decision.

The Bail Application

10. The application for bail is based on the following grounds:
    • (a) The applicant is charged with a criminal offence and is presumed innocent until proven guilty.
    • (b) The applicant poses no flight risk and is willing to surrender his passport.
    • (c) The applicant has a health condition known as Guillain-Barre Syndrome (GBS) a rare condition in which a person’s immune system attacks the peripheral nerves.
    • (d) There is minimal risk of the applicant failing to appear in court.
    • (e) The likely lengthy delay of the matter getting to trial.
    • (f) The other co-defendants were granted bail to await their hearings and sentencing.
    • (g) Any risk of interference with prosecution witnesses can be mitigated by the imposition of strict bail conditions.
    • (h) There is no just cause to continue the detention of the applicant pursuant to section 98(4) of the CPA 2016.
11. There are affidavits filed in support of the application for bail from the following people:
    • Josefina Fuimaono-Sapolu – a good friend of the applicant who is willing to have the applicant reside at her place in Lalovaea – closer to the Police Station, the Courts and to the hospital in regards to his health condition. Ms Sapolu has undertaken to make sure that the applicant abides by any bail conditions that are to be imposed;
    • Luatutu Andrea Voluntras – the Sa’o of the applicant’s family at Manono;
    • Papalii Malietau Malietoa – said to be related to the applicant who also gives full support including making sure that the applicant abides by any bail conditions to be imposed;
    • Dr. Samuel Fuimaono – a medical practitioner who confirmed what Guillain-Barre Syndrome is that the defendant is said to suffer from.

Opposition to Bail

12. The opposition by the prosecution is based upon two grounds only:
    • (a) The applicant absconded from the country and it took three years for the extradition process to take place. In terms of section 99, the prosecution is implying a risk of the applicant leaving the jurisdiction or absconding if granted bail; and
    • (b) There is no known or fixed address for the applicant to be bailed out to, therefore the applicant is at risk of breaching his bail conditions.
13. No affidavits were filed in support of the opposition by the Prosecution that are normally filed from the police officers.
14. I was at first baffled with Prosecution’s attitude with the present bail application as to the grounds they raised opposing the bail. Firstly, when asked in relation to the issue of ‘absconding’ as to whether there was a charge laid against the defendant prior to the defendant having left the country before, the Prosecution confirmed that there was no charge filed at the time. The Prosecution’s concern of the defendant again absconding if granted bail has no substance. As a result, Prosecution then informed the Court that they do not oppose bail. The matter was then stood down for the Court to consider the bail conditions to be imposed and to have it recalled at 12.30pm.
15. In the interim, the Court was not satisfied with the Prosecution’s position with this bail application and had the matter called in Court prior to 12.30pm for the Prosecution to clarify their position in relation to four main issues that the Court must consider in a bail application that Prosecution failed to address in their submissions. The following took place:

(a) First issue: Is there a risk that the applicant may fail to appear on the date to which he will be remanded for trial?

16. Counsel for the defendant submits that there will be no risk with the applicant not appearing on the date of trial for the following reasons:
    • (i) The applicant/defendant is willing to surrender his passport so the risk of absconding is eliminated;
    • (ii) The applicant/defendant’s family and friends support the application for bail (see affidavits provided)
    • (iii) Ms Josefina Fuimaono-Sapolu a lawyer and a friend of the defendant has offered a place of residence for the defendant and undertakes to make sure that the defendant abides by his bail condition.
17. The prosecution submits that the risk of non-appearance is high if the defendant has no fixed address or address to be bailed out is not known. They accept that this risk will be minimized if there is a known address or place to reside. Prosecutions accepts the defendant to reside at Lalovaea at the residence of Ms Josefina Fuimaono-Sapolu and no longer oppose this issue.

(b) Second issue: Is there a risk that the applicant may interfere with witnesses or evidence?

18. Counsel for the defendant submitted that any risk of interference with prosecution witnesses can be mitigated by the imposition of strict bail conditions to which the defendant will abide.
19. The prosecution informed the Court that the risk of interference with prosecution witnesses is high if the defendant remains in custody as three of their main witnesses are currently serving imprisonment terms. Alternatively, there may be a safety issue for the defendant if he remains in custody with the other three co-defendants serving sentences. Therefore, the prosecution does not oppose this issue.

(c) Third risk: Is there a risk that the applicant may re-offend while on bail?

20. Counsel for the defendant confirms that the defendant has no previous convictions or conviction of a serious offence or a similar offence with the one he (defendant) is currently charged with.
21. The Prosecution did not have any evidence that the defendant will re-offend while on bail. There is also nothing in the material before the Court to suggest that the defendant may re-offend if granted bail. The Prosecution also do not oppose this issue.

(d) Fourth issue: Is there any matter that would it make it unjust to detain the applicant?

22. Counsel for the defendant suggests it would be unjust for the defendant to be continuously detained and that he is presumed innocent until proven guilty.
23. The prosecution agrees that there are no just causes for the defendant to be continuously held in custody.
24. Prosecution was asked by the Court why they did not include as a ground of opposition the strength of the prosecution case against the defendant given the history of this matter and that the co-defendants are now serving imprisonment terms. The Prosecution’s response was not satisfactory that the reason is because their case depends on their witnesses. The Court should not have to do the job of or for the Prosecutions.

Presumption of innocence

25. Counsel for the defendant in his submissions placed emphasis on the presumption of innocence. Whilst it is correct that a person charged with an offence is presumed innocent until proved guilty according to law, it must be borne in mind that an application for bail is not concerned with the innocence or guilt of a defendant. A bail application is concerned with the question of whether a defendant should be at liberty pending the determination of guilt or innocence.^[1]

Conclusion

26. The application for bail is granted upon the following conditions:
    • (i) Pursuant to section 106(4) of the Criminal Procedure Act 2016 the defendant or his family to provide a $2,000 good behaviour bail bond to be paid to the Registrar to be forfeited to the State if the defendant fails to remain on good behaviour or otherwise breaches bail pending final disposition of his matter;
    • (ii) To reside at Lalovaea at the residence of Josefina Fuimaono-Sapolu;
    • (iii) To refrain from having any contact or interference with Prosecution witnesses by phone, internet or through any other person(s);
    • (iv) To surrender all travel documents in the defendant’s possession;
    • (v) Not to go anywhere near the complainant or his place of residence;
    • (vi) To refrain from posting on social media including making live videos;
    • (vii) To report to the Apia Police Station twice a week every Monday & Friday before 2pm.

JUSTICE TUATAGALOA

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^[1] R v Lindsay James Tawairua Wilson [2003] NZCA 3, para [25], delivered by Elias CJ referred to in Lam v Police [2018] WSSC 119 (4 Dec 2018)