IN THE SUPREME COURT OF SAMOA
Police v Ulberg [2022] WSSC 33 (23 February 2022)

Case name: 	Police v Ulberg	
		
Citation: 	[2022] WSSC 33	
		
Decision date: 	23 February 2022	
		
Parties: 	POLICE (Prosecution) v EDWARD ULBERG, male of Vailoa Faleata (Defendant)	
		
Hearing date(s): 	15 February 2022	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Lesātele Rapi Vaai	
		
On appeal from:		
		
Order:	(a) The application for bail is denied.
(b) This matter is adjourned and to be listed for mention on the Monday 07th March 2022.
(c) The reasons for this ruling stated in paragraphs [1] to [33] above shall not be published until the final disposition of the trial.	
		
Representation: 	I. Tanielu for Prosecution
L. Su’a-Mailo for the Defendant 	
		
Catchwords: 	Bail application – charge of murder – alternative charge of manslaughter – grievous bodily harm – actual bodily harm – assault – armed with a dangerous weapon – killing an unborn child – Prosecution opposes bail. 	
		
Words and phrases:		
		
Legislation cited:	Constitution of the Independent State of Samoa 1960, Articles 6; 9; 9(1); 
Criminal Procedure Act 2016, s. 98(4); 99.	
		
Cases cited:	Lam v Police [2018] WSSC 119;
Police v Foai [2018] WSSC 99;
Police v Barlow [2017] WSSC 107;
Police v Peter aka Tasi Tulaga (Unreported judgment Supreme Court of Samoa, 19/02/2019);
Police v Pule [2017] WSSC 127.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

EDWARD ULBERG, male of Vailoa Faleata

Defendant

Counsel:	I. Tanielu for Prosecution
		L Su'a for the Defendant 

Hearing: 	15 February 2022

Ruling:	23 February 2022

RULING   O F   VAAI J
Bail Application 
1. 	The applicant was remanded in custody since the first day of December 2021. He is 34 years of age, charged with one count of murder of his late pregnant wife (the deceased). In the alternative, he is charged with manslaughter, grievous bodily, actual bodily harm, assault and armed with a dangerous weapon, namely a kitchen knife. 
2. 	He is also charged with one count of killing an unborn child, an offence which carries a maximum penalty of 14 years.
3. 	The applicant intends to challenge all the charges. He now seeks bail to await the date of his trial. 
4. 	The application for bail opposed by the Prosecution. 
Grounds for the Bail Application 
5. 	The grounds upon which the application is premised are: 
(a) 	The applicant is bailable at the discretion of the Court section 98(4) Criminal Procedure Act (“the Act”).
(b) 	The applicant intends to challenge the charges against him and shall be afforded his right to silence and innocence as protected under articles 6 and 9 of the Constitution.
(c) 	The offending in question is uncharacteristic of the defendant and has taken his family as well as the deceased’s family, by surprise as the defendant deeply loved his wife. 
(d) 	The applicant’s family has performed the traditional apology or the ifoga and the two families have reconciled.
(e) 	The applicant is not a flight risk. His travel documents can be surrendered and he can be bailed with strict conditions.
(f) 	The applicant has been remanded for over two months without just cause.
(g) 	These is no risk that the applicant may fail to appear on a date directed by the court as he intends to redeem his good name against the charges.
(h) 	There is no risk that the applicant would interfere with prosecution witnesses. 
(i) 	There is no risk the applicant will offend while on bail.
(j) 	The character and past character of the applicant does not warrant his detention. 
(k) 	The applicant is the sole remaining parent responsible for his three young children.
(l) 	The applicant is the primary breadwinner for his family; he has obligations to financial institutions, and had been on leave without pay since his detention since 13 December 2021.
(m) 	It is in the interests of justice that the applicant be granted bail. 
Opposition to Bail 
6. 	The prosecution opposes bail on the grounds;
(a) 	There is a risk that the applicant may interfere with prosecution witnesses. 
(b) 	There is a risk that the applicant may offend while on bail.
(c) 	There is a risk that the applicant may fail to appear on the date to which he will be remanded for trial.
(d) 	The character and past behaviour of the applicant warrants detentions.
(e) 	The gravity of offence of murder with which the applicant is charged,
(f) 	The strength of the evidence and the probability of conviction,
(g) 	The severity of the punishment to which the applicant is liable.  
Supporting Affidavits
7. 	In support of the bail application, the applicant’s father, the applicant’s sister, as well as the deceased’s biological mother and adoptive mother filed affidavits. Other than the father, the others are all police witnesses who were interviewed by the police and have given police statements either on the day of the incident or soon after. Understandably, this is of some concern to the police who have attached and exhibited the police statements of these prospective witnesses for consideration by the court. 
8. 	It is not disputed from the supporting affidavits of the applicant and his supporters for bail that the applicant and the deceased were living on the same land but in separate houses with his brothers, sisters and parents. The houses are a few meters apart. 
9. 	It is also not disputed and conceded to by defence counsel that the applicant did stab the deceased with the knife on the morning of 01st December 2021. He was intoxicated. What is in contention is the intention element of the crime of murder. 
10. 	It is also not disputed that the deceased and her three children were staying with the deceased’s adoptive mother at Vaimoso, the day before the stabbing. They were living separately from the deceased then. At the request of the applicant, the adoptive mother drove the deceased and her children to Vailoa on the morning of 01st December 2021. Soon after her arrival the deceased was stabbed. 
11. 	The Court, is mindful of the fact that the applicant’s trial will be before assessors and it is important to protect the right of the applicant to a fair trial pursuant to Article 9(1) of the Constitution. Accordingly, the Court will make an order that the publication of the reasons of  this ruling in the news media, internet or any other publicly accessible database shall be prohibited. Full publication of the reasons can be made after the trial of the applicant. 
Approach to Bail Application
12. 	The starting point in the consideration of bail is the Criminal Procedure Act 2016 section 99 which the court must take into consideration when determining whether there is just cause for a defendant to be remanded in custody. These are:
(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. 
13. 	This approach was discussed and adopted in Police v Barlow, Police v Pule , Police v Foai  and lately by Sapolu CJ in Lam v Police , in which he stated at paragraph 6 that the four considerations in 12 above are mandatory. He then said that in assessing the risks and any matter which makes it unjust to detain the defendant, the court may take into account other matters stated in section 99. Those other matters are discretionary. 
Is there a risk that the applicant may fail to appear on the date to which he will be remanded for trial? 
14. 	The prosecution did not oppose bail on this ground obviously because there are several measures available to the police to prevent the applicant from absconding. 
Is there a risk that the applicant may interfere with witnesses or evidence?
15. 	Counsel for the applicant submitted that the supporting affidavits by the police on this issue does not support a contention that there is any real or significant risk of interference by the applicant with prosecution witnesses or evidence. Indeed, of granted bail there is affidavit evidence that the applicant will live at Aleipata away from prosecution’s key witnesses. It can be a condition of bail that the applicant shall not contact prosecution witnesses. 
16. 	Counsel for the Prosecution submitted that the Prosecution witnesses have already been interfered with and there has been a change of heart by those witnesses who have already given written witnesses statements to the police but have now sworn affidavits to support the applicant’s bail application. These witnesses are:
(a) 	Anapela Ulberg, the sister of the applicant;
(b) 	The biological mother; and
(c) 	The adoptive mother. 
If released on bail more witnesses, other family members will be interfered with.
17. 	The Prosecution is particularly concerned that the alleged crime took place at the home of the applicant so that the only eye witnesses are the parents, brothers, sisters and relatives of the applicant. Any condition of bail to stop interference will be rendered worthless and cannot be monitored.
18. 	Briefly the outline of the case for the Prosecution is that in the early hours of the morning of 01st December the applicant was drunk. He visited the deceased and the three children at the deceased’s adoptive mother’s place three times between 3.00am and 5.00am. He was violent when he returned to his house at Vailoa. He smashed louvre windows of his parent’s house and his own house using empty bottles. He hurt himself in the process. He was told off by his father who lived about 5 metres away. The applicant rang the deceased to come and help dress his injuries. The deceased and the three children were driven to Vailoa by her adoptive mother. The deceased went into the home. She got some dressing materials from the parent’s house to help dress the injuries.  Soon after she was heard screaming and running to the parent’s house whilst being pursued by the applicant who was holding a kitchen knife. When the deceased stumbled and fell she was stabbed. Anapela, the applicant’s sister, a nurse, who was at the parent’s house heard the scream, saw the chase, witnessed the first stab and stopped the second stabbing. Foni the younger brother who was living with the parents also saw the first stab as well as the attempt to deliver the second one.  
19. 	The adoptive mother Elenoa Betham gave a written statement to the police on 03 December outlining the events at her home and driving to Vailoa on the morning of 01 December .She has also sworn an affidavit dated 12 February to support the release of the applicant on bail.  Briefly, she deposed that she has forgiven the applicant who should be granted bail so he can care and provide for his children. She then said at paragraph 12 that the applicant loved his wife and children, and is a devoted husband that always did right by providing for his wife. 
20. 	Paragraph 12 of the adoptive mother’s affidavit illustrates the issues raised by Prosecution counsel that the applicant appears to have won the hearts and influenced the views of some of the Prosecution witnesses.  During the applicant’s first visit to the adoptive mother’s house in the early morning of 01 December referred to in paragraph [19] above, the adoptive mother in her police statement said the applicant was very drunk and the deceased said to the applicant:
	“Edward, ua leva na ou fai aku iā oe ka ke o vaai se fomai o mafaufau ona o mea i ai oe kau faalekogu lou mafaufau ona malosi kele lou kago i le aisa.”
The remark angered the applicant who slapped the face of the deceased.
21. 	On his third visit, the applicant and the deceased were talking outside the house when the adoptive mother heard the deceased calling for help and she ran outside. She saw the applicant pulling the deceased hair and dragging her down while the deceased was holding one of her children. The applicant was then chased away.
22. 	Despite his obvious drinking and drug problem as well as his violent conduct in the presence of his child, the adoptive mother was prepared to describe him as a loving, devoted husband and father. 
23. 	One of the eye witnesses, Anapela Ulberg, the sister of the applicant deposed in her affidavit supporting bail that the applicant is a doting father, devoted to providing for his wife and children. She deposed at paragraph 11 that the applicant loved and cared for his wife and the offending came as a shock to the family as it is out of character and unintentional. 
24. 	It need not be emphasised that the Court is quite entitled to treat the self-serving, exaggerated assertions of the applicant and his relatives and supporters with caution. The supporting affidavits have to be assessed in context. Anapela made a police statement a few hours after the deceased was stabbed. She witnessed the violent conduct of the drunken accused that morning while she was attending to her elderly mother. She saw the applicant pursuing the deceased with the knife and eventually stabbed her while on the ground. In her supporting affidavit she deposed that the applicant and deceased had their differences over the years, but gradually improved and the frequency of marital arguments depleted.
25. 	The combination of the affidavits and police statements of the adoptive mother and Anapela reflects in material circumstances that despite his obvious alcoholic, drug and bad temper the prospective police witnesses are willing to say otherwise and pose him as a doting father and caring non-violent husband. 
26. 	Despite the assertion by the applicant in his supporting affidavit that he will not interfere with police witnesses and that his character and past character does not warrant his remand in custody, the materials before the Court and the implications to be drawn speak otherwise. 
27. 	If he is allowed bail with conditions attached, modern technology and mobile phones will render those conditions useless and worthless. 
28. 	There is a real and significant risk the applicant may interfere with police witnesses if granted bail. 
Is there a real risk that the applicant may offend while on bail?
29. 	This ground of opposition by the Prosecution was abandoned at the hearing. 
Is there any matter that would make it unjust to detain the applicant?
30. 	The applicant suggests there will be delay in the hearing, probably towards the end of the year, and it would be unjust to detain the applicant until that time given the presumption of innocence.
31. 	It is the Court’s understanding that in cases where bail is denied, there is always the likelihood that an early hearing date will be given and the Prosecution normally prioritise such cases. In any event, a 12 month wait in the hearing of a serious criminal trial should not be classified as unjust to detain the applicant.
32. 	It is acknowledged that the applicant is the sole surviving parent of the three children and the primary breadwinner for the family; but despite deepest sympathy for the children who are themselves the victims of the applicant’s stabbing of their mother, the undesirable consequences of the applicant’s actions upon his own children should not make it unjust to detain the applicant. It is probably in the best interests of the children in the meantime to be kept away from him. One of them was being held by the mother when the applicant assaulted the mother at the adoptive mother’s house on the morning of the incident. They were all at Vailoa when their dead mother was placed in the ambulance and taken to hospital. They obviously heard her scream. 
33. 	Finally, since the applicant has conceded to the stabbing, the police has a very strong case against the applicant thus making the probability of conviction for manslaughter or causing grievous bodily harm very high if he escapes a conviction for murder. On top of that is the killing of an unborn child which carries a 14 years’ maximum imprisonment. It is an extremely serious incident of domestic violence.
Result
(a) 	The application for bail is denied.
(b) 	This matter is adjourned and to be listed for mention on the Monday 07th March 2022.
(c) 	The reasons for this ruling stated in paragraphs [1] to [33] above shall not be published until the final disposition of the trial. 

VAAI J