Police v Timblique [2024] WSSC 88 (20 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v Timblique [2024] WSSC 88 (20 September 2024)

Case name:	Police v Timblique
Citation:	[2024] WSSC 88
Decision date:	20 September 2024
Parties:	POLICE (Informant) v ARRIANE FAE TORRES TIMBLIQUE, female of the Philippines and Nuuuli American Samoa (Accused)
Hearing date(s):	Bail Variation Hearing: 6th & 13th September 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	The application is dismissed. The accused is remanded on the same bail conditions to re-appear week commencing 9th December for trial.
Representation:	F Lawrence for Prosecution V Afoa for the Accused
Catchwords:
Words and phrases:	Possession of methamphetamine – possession of a 44 Rem witness Super ammunition – accused non-resident – bail variation -
Legislation cited:	Arms Ordinance 1960, s. 12; Criminal Procedure Act 2016, ss. 106(1); 106(3); 111; Narcotics Act 1967, ss. 7(1)(a); 18.
Cases cited:	Jamie Patrick Biggs v R [2022] NZHC 1863; R v Keefe CA162/04, 22 July 2004; Rewha v R [2015] NZHC 1959.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

ARRIANE FAE TORRES TIMBLIQUE, female of the Philippines and Nuuuli American Samoa.

Accused

Counsel: F Lawrence for Prosecution
V Afoa for the Accused

Bail Variation Hearing: 6^th & 13^th September 2024.

Ruling: 20^th September 2024

RULING ON BAIL APPLICATION

1. The accused is charged with possession of 0.83 grams of methamphetamine and a 44 Rem Mag ww Super ammunition contrary to section 7(1)(a) and 18 of the Narcotics Act 1967 and section 12 of the Arms Ordinance 1960.

Background:

2. The accused is a Filipino citizen working in American Samoa. According to her affidavits, she has worked as a teacher at the Nu’uuli Vocational Technical High School, American Samoa for some 11 years. In her caution interview with police, she says her husband resides and works in American Samoa in construction.
3. On the afternoon of Friday 5^th July 2024, the accused entered Samoa to transit onwards to the Philippines. She cleared customs, met a faifeau and spent time in Apia. In the early morning of Saturday 6^th July, she went to Faleolo Airport to travel out on Fiji Airways to Fiji and onwards to Singapore and Philippines. As she proceeded through airport security, suspected methamphetamine and a bullet was allegedly found in the accused’s back pack.
4. The accused was cautioned and then charged. Her bail conditions are to report every Tuesday and Friday at the Apia Police Station and surrender travel documents to the Registrar of the Court.
5. The suspected methamphetamine seized by police has been tested by SROS and the test results are allegedly positive methamphetamine. The testing of the suspected methamphetamine was carried out by SROS only following defence counsel raising the absence of testing of the substance. The accused is critical of the police delay and the possible tainting of evidence.
6. In her most recent affidavit dated 13^th September 2024, the accused strongly maintains her innocence, has no knowledge of the substances and that she strongly suspects that the items were planted. She says she has now been placed on leave without pay.
7. Through counsel, the accused applies for variation of her bail conditions to permit her to return and reside in American Samoa pending trial. Ostensibly, the grounds submitted as the accused says are compassionate grounds that:
   • the accused has no family in Samoa and is unable to sustain herself here for any amount of time; and
   • remaining in Samoa until the date of hearing would impose undue hardship.
8. The accused has offered two sureties of $5,000.00 each.
9. The prosecution opposes variation of bail on the grounds that:
   • the accused has no substantial ties to Samoa;
   • the evidence against the accused is “compelling” and increases the risk of absconding; and
   • there is no extradition treaty with the Philippines.

Relevant Law:

10. An accused granted bail may apply for variation of bail conditions. Section 111 of the Criminal Procedure Act 2016 relevantly provides:
    • “111. Variation of conditions of bail - (1) If the defendant has been granted bail, the Court may, on the application of the defendant or the informant, make an order varying or revoking any condition of bail or substituting or imposing any other condition of bail.
    • ...”
11. Section 111 does not set out the test to be applied by a Court when determining an application to vary bail conditions. The test to apply however seems to me to be the same as that which applies when imposing bail conditions in the first place.^[1] In this context, the Court may impose such conditions as the Court considers reasonably necessary to ensure that an accused:^[2]
    • (a) appears in Court on the date to which the accused has been remanded; and
    • (b) does not interfere with any witness or any evidence against the defendant; and
    • (c) does not commit any offence while on bail; and
    • (d) that protects the community.
12. The New Zealand Court of Appeal in R v Keefe CA162/04, 22 July 2004 at [20] observed that in determining which bail conditions are reasonably necessary to manage the risks of flight, failure to appear, interference with witnesses and of offending while on bail that:
    • “...the Court must balance the likely restrictions on an alleged offender’s liberty (on the one hand) against the interests of the community in ensuring that alleged offenders do not flee, interfere with evidence or re-offend while awaiting trial (on the other). Viewed in that way “reasonable terms and conditions” of bail can be seen as part of a process of managing the risks of flight, interference with evidence and re-offending. Terms of bail should reflect the least restrictive outcome possible consistent with the community’s expectation that adherence to bail terms will be properly monitored.”

Discussion:

13. The granting of overseas bail is an indulgence on the part of the Court, even where a surety is given.^[3] In this case, the accused has been granted bail. She now seeks variation of her bail conditions to permit her to travel to American Samoa to await her trial date in Samoa, scheduled for the week of the 9th December 2024.
14. The principal issue raised by the accused is her ability to maintain herself in Samoa awaiting her trial. She also raises issues around her work in American Samoa where she says she has now been placed on leave without pay.
15. In terms of section 106(3) of the Criminal Procedure Act 2006, the fundamental question concerning this application is whether the present bail conditions are reasonably necessary to ensure that the accused appears in Court on the date to which she has been remanded for trial. In this context, the primary concern is the flight risk the accused represents if she is permitted to leave the jurisdiction.
16. The accused is a citizen of the Philippines working in American Samoa as a teacher. She has no permanent connection whatsoever to Samoa and no ties to this country that would bring her back. On the other hand, the charges are very serious and if convicted of the possession of methamphetamine charge, there is a real risk that she be sentenced to a custodial sentence. If allowed to leave the country, there is little motivation for her to return and in fact, quite the contrary. This substantially increases her flight risk.
17. If permitted to travel to American Samoa, the accused will be beyond the reach of Samoa’s Courts and Samoa’s Courts unable to impose any enforceable restrictions on her. No material was also placed before me to suggest that Samoa has extradition arrangements with American Samoa.
18. As a citizen of the Philippines, once in American Samoa, there would also be no way of stopping the accused from returning to her native Philippines. Samoa does not have an extradition treaty with the Philippines. While it was submitted that the accused could surrender her passport to American Samoa authorities, there is no confirmation from American Samoa authorities that they would agree to accept surrender of the accused’ passport. I am also far from convinced that there would be any proper legal basis American Samoan authorities could lawfully withhold her travel documents as she is not alleged to have committed a crime in American Samoa. For the accused’s suggestion to have been meaningful, supporting material from American Samoa to this effect would have been very helpful to her application.
19. The accused’s concerns in relation to the delay in testing the suspected methamphetamine is a chain of custody issue. That issue can be tested during trial.
20. In all these circumstances, to permit the accused to leave the jurisdiction poses a significant and unacceptable risk of her not returning to Samoa for trial. The provision of sureties of $5,000.00 proposed does not reduce this risk much at all.
21. The bail conditions imposed are reasonably necessary to ensure that the accused appears for trial given these risks. The trial is scheduled for December 9th, 2024. Prosecution noted that given the matters flagged by the accused, an earlier hearing date could address the accused’s circumstances. I encourage prosecution to review presently listed trial matters and see if an existing fixture might be vacated and this matter substituted in its place.
22. The application is dismissed. The accused is remanded on the same bail conditions to re-appear week commencing 9^th December for trial.

JUSTICE CLARKE

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^[1] Section 106(1) and (3), Criminal Procedure Act 2016; Rewha v R [2015] NZHC 1959 at [11].
^[2] Section 106(3), Criminal Procedure Act 2016.
^[3] Jamie Patrick Biggs v R [2022] NZHC 1863 at [34].