IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A.9/99

NOTE INTERIM SUPPRESSION ORDER

BETWEEN:

LEAFA VITALE
(First Appellant)

AND

TOI AUKUSO CAIN
(Second Appellant)

AND

POLICE
(Respondent)

Coram: The Rt. Hon. The Lord Cooke of Thorndon, President
The Rt. Hon. Sir Maurice Casey
The Rt. Hon. Sir Gordon Bisson

Counsel: Mr S. Toailoa for first appellant
Mr A. S. Epati for second appellant
Ms B. Heather and Mr K. Raftery for respondents

Date of Judgment: 6 December 1999
Date of Reasons: 8 December 1999

REASONS FOR JUDGMENT OF THE COURT
DELIVERED BY SIR MAURICE CASEY

Both appellants have pleaded not guilty to murdering Luagalau Levaula Kamu on 16 July 1999. He was Minister of Public Works and was killed that day by Alatise Leafa (a son of the appellant Leafa Vitale) who pleaded guilty to his murder on 06 August 1999 and was convicted and sentenced to the mandatory death penalty. The appellants were charged as parties to that offence under S23 (b) and (d) of the Crimes Ordinance 1961 as aiding, inciting, counselling or procuring it. Following their arrest they applied for bail which was refused by Wilson J on 09 September 1999 (his Reasons being given on 29 September), and both appeal against that refusal. A right of appeal is given by S 164D(2) of the Criminal Procedure Act 1972. At the end of the hearing on 06 December 1999 we dismissed both appeals and now publish our reasons.

In his Reasons Wilson J cited ss71(1) and (5) of the Criminal Procedure Act 1972, the effect of which is that a person charged with an offence punishable by death is bailable only at the discretion of the Court. He referred to the absence of any statutory guidance in Samoa applicable to the exercise of that discretion, and accepted that by virtue of s3 of the Criminal Procedure Act 1972, and Art 111 of the Constitution the appropriate law was that currently in force in New Zealand so far as it does not conflict with or is not inconsistent with the common law.

Mr Toailoa submitted that His Honour was mistaken in holding that there were no statutory criteria or guidelines for the exercise of the discretion to grant bail. He pointed to the provisions of s75 of the Criminal Procedure Act setting out conditions which the Court may impose when granting bail, namely, reporting to police and the provision of bail bonds together with enforcement provisions, which he described as more than sufficient guidelines. However, these are merely conditions that may be put in place once a decision to grant bail has been made, although their availability may be a factor taken into account in reaching that decision.

Guidelines or criteria for bail are more fundamental; they are matters to which the Court is expected to pay regard in exercising its discretion. For Samoa they are those which have been developed by New Zealand Courts consistently with the common law. The following extract from the judgment of Chilwell J at p 739 of Hubbard v Police [1986] 2 NZLR 738 is a useful summary.

"There are two main tests involving factual questions which have to be considered by the Court in determining whether to grant or refuse bail. They are, first the probability or otherwise of the defendant answering to his bail and attending at his trial, and, secondly, the public interest.

So far as the first factor is concerned, the criteria to be considered include:

(i) The nature of the offence with which the person is charged, and whether it is a grave or less serious one of its kind.

(ii) The strength of the evidence; that is, the probability of conviction or otherwise.

(iii) The seriousness of the punishment to which the person is liable;
and the severity of the punishment that is likely to be imposed.

(iv) The character and past conduct or behaviour of the defendant.

(v) Any other special matter that is relevant in the particular circumstances to the question of the likelihood of the accused appearing or not appearing.

Public interest criteria include:

(i) How speedy or how delayed is the trial of the defendant likely to be?

(ii) Whether there is a risk of the defendant tampering with witnesses.

(iii) Whether there is a risk that the defendant may re-offend while on bail.

(iv) The possibility of prejudice to the defence in the preparation of the defence.

(v) Any other special matter that is relevant in the particular circumstances to the public interest."

No evidence was given at the bail hearing. In accordance with customary practice the applications were decided by the Judge on information available in the record or given to him by counsel and which he could accept as reliable. In this particular case he had some background knowledge as well, because he had dealt with the principal offender and with other matters involving the applicants. It may also be accepted that the basic facts of the offences would have been known to His Honour and to every one else in Court because of the publicity this sensational murder of a Cabinet Minister had received over the preceding weeks. According to the Judge, the two accused were known as former Cabinet Ministers.

In Police v Hubbard Chilwell J accepted that where there is no evidence given on oath the Court could rely on the outline of facts given by Counsel for the Crown in determining whether to grant bail, and this approach was generally approved by the Court of Appeal in R v Tonihi [1995] 1 NZLR 154, with the exception that where unsworn information was critical to the outcome, the Judge ought not act upon it to the extent that exception is taken to it. Consideration may then be given to an adjournment to enable sworn evidence to be presented orally or by affidavit. The Court added 'It is neither reasonable no practicable to expect the police to be ready with evidence in every instance where bail is opposed' (ibid p 156)

Mr Toailoa submitted that Art 6(1) of the Constitution ('No person shall be deprived of his personal liberty except in accordance with law') and the presumption of innocence in Article 9(3) now require a different approach to bail applications, and that the prosecution must show in accordance with the law of evidence that there are valid reasons for refusing bail. His Honour accepted that the presumption of innocence requires release on bail unless there is a valid reason for refusing it. However, we do not accept that Article 6(1) of the Constitution must be read as necessarily importing the requirements of the law c; evidence into bail hearings. Its qualification 'except in accordance with law' is satisfied if the decision to grant or refuse bail is made in accordance with the law applicable to bail hearings and, as noted above, this allows the Judge to act merely on information which he or she accepts as reliable.

His Honour's Reasons

The essence of Wilson J's decision is contained in the following passage at pp3 and 4 of his Reasons:

"The main ground for my decision to refuse bail in the case of each defendant was the likelihood that he would not attend upon the hearing of the charge or charges against him if he were granted bail. The risk or likelihood of non-attendance is to be looked at in the light of the seriousness of the offence, the strength of the evidence, and the severity of punishment prescribed (see R v Scaife (1841) L.J.M.C. 144; R v Barronet and Allain (1852) Deers CC 51; In re Robinson (1854) 23 LJQB 286; and the cases, which preceded the Bill of Rights Act (N.Z.) 1990 of Hubbard v Police (1986) 2 NZLR 738; and Police v Simeon (1990) 2 NZLR 116).

In this case it is to be noted that the charge is one of murder, one of the most grave charges that a person can face; arising from the fact that the alleged principal offender (the person alleged to have been aided to commit the crime of murder, and the person alleged to have been incited, counselled or procured to commit the crime of murder) pleaded guilty to murder and now stands convicted and condemned to death, and from other evidence, the inference is to be drawn that the evidence against the two defendants is strong; and the punishment prescribed is the most severe to be found in the statute books of Samoa, viz. the death penalty.

In applying this common law principle, which is well accepted both in New Zealand and, I think, here in Samoa, appertaining to the likelihood of the defendants appearing to take their trial, I do not overlook the matters placed before me by their respective counsel, but I consider the objective factors alluded to in the cases cited supra and in the attitude expressed (and in the matters advanced) by the Attorney-General are compelling in this situation here when it is alleged (and admitted by the condemned man) that the deceased's death was, in reality, an assassination by a 'hit-man' (or assassin), where the allegations implicit in the information itself point to this being an alleged situation of 'organised crime' with alleged political as well as very serious overtones more usually lined with Mafia-style killings, and where the implications for the nation and for the Samoan people are enormous."

His Honour then proceeded to consider other matters he saw as relevant. He thought it implicit in the fact of an assassination incited by another that the latter had the capacity to persuade others to do 'something criminal of the most grave type.' He referred to information given to the Court that the condemned man was being held in secure custody for his own safety as he would be a crucial witness at the appellants' trial; and that another person also said to have been incited by Cain to murder had left the jurisdiction with his family. He is another potential witness. Accordingly, His Honour saw strong evidence of a perceived risk of interference with witnesses as another reason for refusing bail. He also mentioned Leafa's family connections in Hawaii and his earlier residence there as other factors militating against bail.

There had been ifoga performed by Leafa's family, and accepted by that of the victim. This would presumably relate to the responsibility of the condemned man Alatise Leafa, since his father (the present appellant) has denied guilt. However, Mr Toailoa had submitted that in view of this reconciliation between the families it would be unthinkable to contemplate that his client would break the truce by further offences against the potential witnesses. His Honour was not impressed by that submission and nor are we. He took the ifoga sufficiently into account by accepting that the possibility of future trouble between the two families was minimal.

Among other submissions in favour of bail rejected by the Judge were the risk of Leafa's losing his parliamentary seat if he is not released. We agree that the remedy lies in seeking leave of absence, and the claim that his constituents are being deprived of his parliamentary services was sufficiently answered by the Attorney General's advice that there is only one more sitting of one day in 1999, and that the trial will take place in mid January 2000. Accordingly this particular submission carries little weight, as did others mentioned by His Honour which we see no need to discuss, with the exception of Toi Cain's health. He dealt with this at some length, but concluded that his condition did not require his release on bail for the better management or further treatment of his psychiatric disability described as a 'major depressive disorder', We deal with this topic later.

Counsel's Criticisms

Mr Toailoa led off with criticism of the Attorney-General's assertions of facts, submitting that none of them would have been admissible as evidence since they infringed the hearsay rule; and that she could not be both Counsel and witness at the same time. However, this criticism ignores the way that bail applications are generally and legitimately conducted, with reliable hearsay being generally acceptable. In the present case this practice was followed, with the Court being given information by counsel which it could chose to accept if considered reliable, without the need for sworn evidence. At no stage was there any challenge to the procedure which was adopted by all counsel, nor did any of them request any fact to be established by sworn evidence. Comments and criticisms noted by His Honour such as 'speculation' or 'fanciful possibility,' or a reference to the lack of cross-examination appear to be reflections on the reliability of the information tendered, rather than implicit demands for the attendance of witnesses or affidavit evidence. The Attorney General informed us that senior police officers were present who could have given evidence if called upon, and it is now too late for counsel to complain that such evidence should have been put before the Court.

Both counsel submitted that many of His Honour's inferences and conclusions were unsupported by the information made available to him, and we were taken through his recorded notes in considerable detail. We understand that no briefs of evidence or statements by proposed witnesses or the accused were before the Court, nor had there been any summary presented when Alatise was sentenced. Mr Toailoa took issue with His Honour's comments in the passage from his Reasons set out above, to the effect that because the principal offender had pleaded guilty, and from the other evidence, the inference was to be drawn that the evidence against the two defendants was strong. (The reference to 'other evidence' is clearly inaccurate: there was no evidence as such before him, and this should be understood as evidence likely to be given at trial.) It is difficult to see from His Honour's notes just how much he was told by the Attorney General of the prosecution case, but there are cryptic references to 'strength of evidence' and 'reliance on evidence of son' (presumably Alatise).

As we have already observed, this was a sensational killing of a leading politician which attracted enormous publicity throughout Samoa and abroad. It would be idle to suppose that His Honour was unaware of its salient features, and unrealistic to hold that he could not take that knowledge into account along with the matters put before him by counsel. Without necessarily agreeing with every step of the reasoning which led him to conclude there was an unacceptable risk of the offenders leaving Samoa before trial, we are satisfied that he was right in regarding that as the main ground for refusing bail. They are clearly men of experience and ability, who could be assumed to have the capacity and the connections to organise their flight from the jurisdiction, in the face of these grave charges carrying the death penalty. The Judge was clearly aware that they were allegedly closely involved in plans to murder the victim: the fact that the killer was Leafa's son was a potent factor in assessing the strength of the case against them, especially in the light of the information given to the Court that the prosecution would be relying on his evidence. There was also a reference to evidence against them by another potential killer who was under police protection abroad.

Similarly we are satisfied that his concern over the potential threats to witnesses was justified. He was entitled to form the view that, on the apparent strength of the case against the appellants, the likelihood of their involvement in organising this murder pointed to a ruthlessness which might not stop short of organising interference with or even the killing of vital witnesses. He had been made aware that one (referred to above) had fled with his family because of fear of such action, adding to his concern on this aspect.

We see these as the dominating features in this quite exceptional case, and agree with His Honour's conclusion that the risks of flight and interference with witnesses put bailout of the question. A summary of evidence from proposed witnesses made available to this Court (it was not before the Judge) provides ample support for his decision.

We add that it would be quite contrary to the public interest if, notwithstanding the presumption of innocence, persons charged a crime having such potential to undermine the good order and integrity of the State should be seen to take their place back in the community, when there appears at this stage to be cogent evidence against them.

The other matters raised by counsel in support of bail were peripheral, and even if we were to conclude that the Judge was wrong in the way he dealt with them, (which we do not) they could not affect the conclusion we have reached.

Toi Cain's Health

We wish to make it clear that in some circumstances an accused's state of health can be an important factor in a bail application. Among the various medical reports placed before His Honour, reliance was placed principally on that from Dr Chaplow, an Auckland psychiatrist. It seems that Cain could benefit from further investigation and treatment, some of which could only be given outside Samoa; but there seems to be no real problem over the management of his depressive state in prison, nor is there any question about his sanity or fitness to plead.

Mr Epati expressed reservations about his client's ability without further treatment to instruct him properly or participate fully in his own defence. This is not apparent from Dr Chaplow's very full report, from which it emerges that the real risk is suicide; and that the strain of the proceedings Cain faces is exacerbating his condition, which may not settle and be amenable to treatment until they have been concluded. In spite of Mr Epati's submissions we cannot see enough in the material on the record to justify his client's release for the purposes of investigation and treatment.

Conclusion

F or these reasons the appeal was dismissed.

Suppression Order

At the outset of the hearing, in order to protect the interest of the appellants at trial, we made an order for exclusion of the public and media from the Court. For the same reason we prohibit publication of these Reasons for Judgment or any part of them before the trial of the appellants is concluded.

The Rt. Hon. The Lord Cooke of Thorndon
The Rt. Hon. Sir Maurice Casey
The Rt. Hon. Sir Gordon Bisson