SUPREME COURT OF SAMOA
Police v Evalu [2021] WSSC 12

Case name: 	Police v Evalu	
		
Citation: 	[2021] WSSC 12	
		
Decision date: 	15 March 2021	
		
Parties: 	POLICE (Prosecution) AND PJ EVALU also known as BENJAMIN EVALU, male of Alafua and Nuu-fou. (Defendant)	
		
Hearing date(s): 	15 March 2021	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:	 	
		
Order:	Weighing all these matters up I consider the defendant should be granted bail and he is accordingly released on the following conditions:
(i)	He is to surrender all or any travel documents to the Registrar of the Court to be held until final disposal of this matter. 
(ii)	As to residence the defendant is to reside at Alafua with his uncle and under his uncles supervision.
(iii)	Pursuant to section 106(4) of the Criminal Procedure Act the defendant or his family to provide a $1,000 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. 
(iv)	Pursuant to section 106(2) the defendant is to report to Faleata Police Post every Friday before 12:00 noon
(v)	The defendant is not to try to contact the victim or any prosecution witnesses including via social media platforms such as WhatsApp or Twitter. 
(vi)	The defendant is not to return to the Faleata Golf Course or the vicinity thereof until this matter is dealt with by the Court.	
		
Representation: 	L Sio for prosecution
C Vaai for defendant	
		
Catchwords: 	-	bail application – oppose bail – granted bail	
		
Words and phrases:	-	any previous conviction on an offence of a similar nature	
		
Legislation cited:	 Criminal Procedure Act 2016	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PJ EVALU also known as BENJAMIN EVALU, male of Alafua and Nuu-fou.
Defendant

Counsel:	
L Sio for prosecution
C Vaai for defendant

Hearing:	15 March 2021

Decision:	15 March 2021

DECISION OF THE COURT
(Bail Application)
1.	As a result of events that occurred at the Faleata Golf Course on 12 December 2020 following a Christmas party the defendant together with a number of others was charged in relation to incidents that culminated in the death of another young man Mr X who was a participant at the party. 
2.	The defendant and his co-defendants are said to have been security guards providing security services at the function. The prosecution subsequently finalised the grievous bodily harm charges against the defendant it appearing that the incident involving him was different and preceded the incident that led to the death of Mr X. 
3.	Defendant faces charges of grievous bodily harm (2 counts) actual bodily harm (2 counts) and assault (2 counts) on the same victim. There is probably to some extent duplication of charges but notwithstanding this the charges are serious and are punishable by up to seven (7) years in prison. 
4.	PJ has been in custody since the incident in December 2020 because he has a previous conviction for similar offending where he was placed on Probation Office supervision and given a penalty of community service. He has sought bail and the Police continue to oppose bail solely on the ground of existence of the previous conviction. Quite a proper position for them to take.
5.	For the edification of those who do not understand the rules regarding bail these have been prescribed by lawmakers sitting in Parliament by the Criminal Procedure Act 2016 (“CPA”) mainly in sections 98 to 108.  I would commend a close reading of those provisions to those who may wish to publically espouse on the topic. Reference should also be made to the many decisions of the Supreme Court on the matter such as that of Chief Justice Sapolu in Police v Lam [2018] WSSC 119.
6.	In this particular proceeding reliance is placed by the prosecution on section 99(c) which mandates that the Court take into account the existence of “any previous conviction on an offence of a similar nature.” There is no dispute the defendants previous conviction is for an offence similar in nature to the charges he is currently facing. Other aspects of section 99 for example the risk of re-offending, seriousness of punishment likely to be imposed if the defendant is found guilty and the strength of the case against him may also come into play.  
7.	Prosecution submits that pursuant to section 101 of the CPA the defendant must satisfy the court that bail should be granted. A proposition with which I agree. 
8.	Defence counsel has stated the defendant will be running a defence of self-defence at the trial and has also pointed to the unfairness of the situation since the defendants co-defendants have all been bailed.  But that is probably because they have clean records and as noted the prosecutions primary objection to bail is the defendants previous conviction. 
9.	In examining the previous conviction I note the penalty imposed was supervision by the Probation Office and community service. An indication that the offending was as these things go at the lower end of the seriousness spectrum. Had it been a substantial term of imprisonment I would have been more inclined to favour the prosecution objection. 
10.	There is also some merit in the argument that the co-defendants have all been bailed. And that therefore there should be some good and sufficient reason for continuing to keep the defendant in custody. 
11.	I also take into consideration the trial date is the week commencing 25 October 2021 which is some seven months away. I further note there is no evidence advanced by the prosecution to indicate there is a potential risk or otherwise of reoffending or that the public or the alleged victim would be placed at risk if the defendant is granted bail: reference sections 101(3) and (4) of the CPA. 
12.	Weighing all these matters up I consider the defendant should be granted bail and he is accordingly released on the following conditions:
(i)	He is to surrender all or any travel documents to the Registrar of the Court to be held until final disposal of this matter. 
(ii)	As to residence the defendant is to reside at Alafua with his uncle and under his uncles supervision.
(iii)	Pursuant to section 106(4) of the Criminal Procedure Act the defendant or his family to provide a $1,000 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. 
(iv)	Pursuant to section 106(2) the defendant is to report to Faleata Police Post every Friday before 12:00 noon
(v)	The defendant is not to try to contact the victim or any prosecution witnesses including via social media platforms such as WhatsApp or Twitter. 
(vi)	The defendant is not to return to the Faleata Golf Course or the vicinity thereof until this matter is dealt with by the Court.
13.	Ia o tu’utu’uga na o le a tatala ai oe i tua PJ e fa’atalitali ai lou fa’amasinoga. O le aso o le Fa'amasinoga o le vaiaso o le aso 25 o Oketopa 2021. O tu’utu’uga e tatala ai oe i tua lea ua tolaulau atu, a e fia malamalama atili ai fesili i le alii Loia lea e tula’i mo oe. Ae pei o le tulaga taua o lou saini i le Pou a Leoleo i Faleata i Aso Faraile uma a’o fa’atalitali lau mataupu. Ma aua e te toe aafia i nisi mataupu ma tulaga fa’apena, aua a e a’afia loa o le $1,000 lea e totogi e le tou aiga i le Resitara o lona uiga e saisaitia iina le $1,000 toe aumai ma oe taofia loa e fa’atalitali ai lou Fa'amasinoga. Ua e malamalama? (Defendant: O lea lava). Tama lelei la a’o fa’atalitali le fa’aiuga o le mataupu lenei. 

JUSTICE NELSON