IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

1.	KIRIFI LEALAITAGOMOA
2.	LEALOFI PALAU FAISAUVALE
3.	LOI LOGAI PAPU
4.	VAVE SI’IFUA TALIMATASI
5.	IOSUA SAVUSA males of Faleatiu.
Accused

Counsel: R Schuster, K Koria and P Chang for prosecution
TRS Toailoa and R Papali’i for accused

Hearing: 6 February 2006
Ruling: 9 February 2006

RULING OF SAPOLU CJ

Proceedings

In these proceedings the Court has been asked to deal with an application for bail by all the five accused. All the accused are from the same family in the village of Faleatiu.

The accused and respective charges against each of them

The accused Kirifi Lealaitagomoa aged 23 years is charged with seven charges, namely, (a) murder of Sauao Tanielu a male of Satapuala, (b) attempted murder of Suni Tiumalu Arona a female of Satapuala, (c) being armed with a dangerous weapon, (d) discharging a firearm, (e) being a party to the arson of the house of Feliuai Fale a male of Satapuala, (f) being a party to the arson of the house of Moimoi Manaia a male of Satapuala, and (g) criminal nuisance.

The accused Lealofi Palau Faisauvale aged 37 years is charged with sixteen charges, namely, (a) being a party to the murder of Sauao Tanielu a male of Satapuala, (b) being a party to the attempted murder of Suni Tiumalu Arona a female of Statapuala, (c) attempted murder of Samuelu Mo’u Lima a male of Satapuala, (d) being a party to the arson of the house of Feliuai Fale a male of Satapuala, (e) being a party to the arson of the house of Moimoi Manaia a male of Satapuala, (f) causing grievous bodily harm to one Kolani Apulu Kolani without lawful justification, (g) causing actual bodily harm to one Faapa’u Feliua’i without lawful justification, (h) threatening to kill (i) being armed with a dangerous weapon, (j) discharging a firearm, (k) uttering insulting words, (l) unlawful entry of a building, (m) indecency between males, (n) another charge of indecency between males, (o) attempt to commit sodomy, and (p) another charge of attempt to commit sodomy.

The accused Loi Logai Papu aged 27 years is charged with six charges, namely, (a) being a party to the murder of Sauao Tanielu a male of Satapuala, (b) being a party to the attempted murder of Suni Tiumalu Arona a female of Satapuala, (c) arson of the house of Feliua’i Fale a male of Satapuala, (d) arson of the house of Moimoi Manaia of Satapuala (e) being armed with a dangerous weapon, and (f) discharging a firearm.

The accused Vave Si’ifua Talimatasi Faisauvale aged 23 years is charged with six charges, namely, (a) being a party to the murder of Sauao Tanielu a male of Satapuala, (b) being a party to the attempted murder of Suni Tiumalu Arona a female of Satapuala, (c) being a party to the arson of the house of Feliua’i Fale, (d) being a party to the arson of the house of Moimoi Manaia, (e) being armed with a dangerous weapon, and (f) discharging a firearm.

The last accused, Iosua Savusa aged 17 years, is charged with five charges, namely, (a) being a party to the murder of Sauao Tanielu a male of Satapuala, (b) being a party to the attempted murder of Suni Tiumalu Arona, (c) being a party to the arson of the house of Feliua’i Fale, (d) being a party to the arson of the house of Moimoi Manaia, and (e) for an act or omission under s.81 of the Crimes Ordinance 1961.

Even though all the charges have been laid in this Court by the prosecution, only the charges of murder, attempted murder, being party to murder, being party to attempted murder, and causing grievous bodily harm without lawful justification fall within the exclusive jurisdiction of this Court. All the other charges may also be laid in the District Court which has jurisdiction to deal with them. However, all the charges would be relevant to consideration of the present bail application as they arose from the same incident, particularly the most serious charges like murder, attempted murder, causing grievous bodily harm, and arson.

The incident

The incident from which the present charges arose occurred at the village of Satapuala on 31 December 2005 and according to the affidavit of police inspector Lene Tanielu filed in these proceedings, it resulted in the death of one man and six other people being injured.

The deceased and the victims are all from the village of Satapuala. Two houses which belong to two different members of the village of Satapuala were also burnt down. All the accused, as earlier mentioned, are from the same family in the adjoining village of Faleatiu and it has been alleged that the first four named accused Krifi Lealaitagomoa, Lealofi Palau Faisauvale, Loi Logai Papu and Vave Si’ifua Talimatasi used firearms in this incident. The sexual charges laid against the accused Lealofi Palau Faisauvale only add to the very serious nature of the total offending alleged against that particular accused.

Matters raised by each side

In his submissions in support of the bail application by the accused, Mr. Toailoa relied in part on what is alleged by the accused in their affidavits. The accused complain that while remanded in custody, they have been subjected to inhumane treatment in that they are (a) being locked up without clothes in solitary confinement without proper beddings, (b) being forced to live in cramp, cold and unhealthy conditions, and (c) being denied the necessities of life including proper food, daily showers, fresh air and bathing facilities.

Counsel for the accused also referred to the presumption of innocence. He also said that the accused have no intention of fleeing the country if granted bail. He also referred to three cases where the accused was charged with murder and was still granted bail. He then submitted that there is now a practice of granting bail to accused persons charged with murder.

Counsel for the accused also said that the accused Kirifi Lealaitagomoa and Lealofi Palau Faisauvale have been in custody for about six weeks and the other accused for about four weeks but it is not likely for their case to come up for trial until the beginning of 2007. He also pointed out that there has been a ifoga performed by the village of Faleatiu to the village of Satapuala which was accepted. He then asserted that there is now peace and harmony between the families of the accused and the victims.

In relation to the accused Iosua Savusa who is 17 years of age, counsel for the accused referred to s.72 of the Criminal Procedure Act 1972 and submitted to the effect that in terms of that provision, this accused because of his young age should not be remanded in custody at Tafaigata Prison. However, I must point out here that under the proviso to s.72 it is there stated that the Court in any case where a young accused is not bailable as of right may direct that such accused be detained in a penal institution if in the opinion of the Court no other course is desirable having regard to the circumstances.

In opposing the bail application, the prosecution filed three affidavits. According to the affidavit by the assistant commissioner of police, Va’aelua Rimoni Va’aelua, who is in-charge of the Tafaigata Prison, the accused Kirifi Lealaitagomoa and Lealofi Palau Faisauvale were brought into custody on 6 January 2006 and the other accused were brought into custody on 15 January 2006. The assistant commissioner says that since the accused have been in custody there has been no incidence of mistreatment of any of them by the police. All the accused are kept in the prison’s security block away from the general prison population and each of the accused has a cell of their own. The assistant commissioner also says that each cell in the security block has its own toilet facility which is cleaned everyday with chemicals to maintain hygiene in the cells. Each of the accused has also been provided with a sleeping mat to sleep on. Since their first night in custody, each of the accused has been provided with a bed sheet to sleep. All the accused have also been provided three meals a day since the first day of their remand. The accused, despite prison policy, have also been allowed water bottles at night. The accused have also been allowed to smoke in their cells despite prison policy but a prison officer would have to light the cigarette outside and passes it inside the cell. The accused also share a shower facility which they are allowed to use each morning. Mr Va’aelua denies that the accused have been subjected to solitary confinement.

According to the affidavit filed for these proceedings by police inspector Lomano Paulo who is currently stationed at Tafaigata Prison, all the allegation contained in the affidavits of the accused are false. He says that all the accused are given adequate living facilities including bathing facilities and the opportunities to use those on a daily basis, sleeping mats, bed sheets, toilet facilities and a cell per person. The police inspector also says that none of the accused has ever been subjected to solitary confinement or forced to live naked inside his cell. All the accused are also given three meals a day and water is made available to them at all times.

According to the affidavit by police inspector Lene Tanielu filed for these proceedings, the one deceased and six victims in this case are all from the village of Satapuala whereas all the accused are from one family in the adjoining village of Faleatiu. Three of the victims are main witnesses for the police and they are very young, between 16 and 17 years, and are very much afraid of the accused.

Police inspector Tanielu further says in his affidavit that when this incident occurred on 31 December 2005, the village of Satapuala met to plan an attack on the village of Faleatiu. However, the High Chief Toalepaialii of Satapuala tried to first approach the village of Faleatiu to conduct peace talks. But when High Chief Toalepaialii of Satapuala approached the village of Faleatiu someone of that village shot at his vehicle. That led to intervention by the police who approached the village council of Satapuala to give the police the chance to peacefully handle the matter. The police also approached the pulenu’u (mayor) of Faleatiu for their cooperation in arresting those involved.

The accused were then brought to the police on 6 January 2006 but police inspector Tanielu says that there are still five other suspects the police are currently making an effort to arrest. The police are also not in possession of the firearms alleged to have been used in this incident and the police are currently making an effort to search for those firearms. Inspector Tanielu also says that the police have not received any cooperation from the village of Faleatiu in relation to the investigation of this matter and are therefore having great difficulty in arresting the other five people suspected of being involved in this incident and locating the firearms that were used.

For the prosecution, Miss Chang submitted that the three young victims in this case who are main witnesses for the prosecution would be scared to give evidence and cooperate with the police if the accused are granted bail. She also says, that the accused may interfere with the evidence of witnesses for the prosecution if they are released on bail. The accused, she says, are also likely to obstruct police inquiries. She further says that tension will build up again between the village of Satapuala and the village of Faleatiu with the high risk of eruption of violence if the accused are released on bail. Counsel also submitted that because of the very serious nature of the charges against the accused there is a high risk of flight or the accused failing to answer to their bail if bail is granted.

On the basis of the affidavits filed by the police, Miss Chang also submitted that the accused have not been subjected to any inhumane conditions in custody. She also submitted that each case in which the accused is charged with murder and bail is sought should be considered on its own circumstances and simply because bail has been granted in some cases where the accused is charged with murder does not mean that bail should be granted in every case of murder. The matter is discretionary. Counsel for the accused seems to agree that the matter is discretionary.

The decision

I think counsel for both sides are in agreement that the accused are not bailable as of right but are bailable at the discretion of the Court. In the exercise of that discretion, I have decided as a matter of judgement to prefer the affidavit evidence of the police officers that the accused have not been subjected to any solitary confinement or to any inhumane or degrading conditions or treatment during their remand in custody.

The charges of murder and a being a party to murder are also extremely serious. The charges of attempted murder, being a party to attempted murder, causing grievous bodily harm, arson, and being a party to arson are also very serious. In fact the gravity of the total alleged offending by all of the accused collectively and the gravity of the total alleged offending by each accused individually are extremely serious indeed. The gravity of the alleged offending is a relevant factor in the consideration of a bail application.

There is also a high risk that the three young victims who are main witnesses for the prosecution will not give evidence or cooperate with the police if the accused are granted bail as they are scared of the accused. The protection of the integrity of the trial process is also a relevant factor in the consideration of a bail consideration.

In spite of the fact that the village of Faleatiu had performed a ifoga to the village of Satapuala which was accepted, there is still the risk that the release of the accused on bail at this point in time may reopen wounds that are in the process of healing and could lead to the rebuilding of tension between the two villages and a possible eruption of violence. As already mentioned, the gravity of the total alleged offending by all of the accused collectively and the gravity of the total alleged offending by each accused individually are extremely serious. The police also had to intervene to ensure that this matter was handled peacefully between the two villages concerned. The protection of the community is also a relevant factor in the consideration of a bail application.

There is also the risk that if bail is granted the accused may not answer to their bail given the gravity of the total offending alleged against them collectively and against each of them individually. If that happens, it could be very difficult for the police to apprehend the accused in view of the difficulties the police are presently having in finding five other suspects in this matter. In saying all of this, I have not overlooked what the accused say in their affidavits that they have no intention of fleeing the country or not answering to bail if bail is granted. 

I have also mentioned in relation to the accused Iosua Savusa that under the proviso to s.72 of the Criminal Procedure Act 1972 a young offender who is not bailable as of right may be detained in a penal institution if no other course is desirable having regard to all the circumstances.

The concern expressed on behalf of the accused about the possible time lapse before this case may come on for trial if the accused continue to be remanded in custody can be resolved by allocating a trial time in June or beginning of July this year for the trial of this case. The Court will set a trial time for this case accordingly when Mr Toailoa for the accused returns from overseas.

The above are sufficient reasons for the Court to exercise its discretion in this matter and refuse bail. Bail is accordingly refused.

This matter is adjourned to Monday, 13 February 2006, for setting a hearing date.

CHIEF JUSTICE