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Police v Neemia [2022] WSSC 75 (20 July 2022)

IN THE SUIPREME COURT OF SAMOA
Police v Neemia [2022] WSSC 75 (20 July 2022)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Respondent

AND:

VAOTUUA AULEOLEO NEEMIA, male of Afega & Falelatai

Applicant

Counsel: F. Ioane & B. Vukalokalo for the Respondent
P. Chang for the Applicant

Hearing: 15 July 2022
Reasons: 20 July 2022

RULING OF VAAI J

1. At the conclusion of the applicant’s application to vary his bail conditions to allow him to travel to Australia to visit his daughter who is terminally ill with cancer, I dismissed the application with reasons to follow. I now provide my reasons.

Introduction

2. The applicant is charged with double murder and with possession of an unlawful, namely a 22 pistol.
3. He is currently on bail awaiting trial scheduled to commence in the week beginning the 19^th September 2022, about two months away. Current bail conditions are:
   • (a) to provide a bail bond of $50,000 to be secured by a registered first mortgage over a freehold property at Afiamalu near Apia, jointly owned by him and his wife;
   • (b) to remain in good behaviour, and not to re-offend;
   • (c) travel documents to remain in the custody of the Court Registrar;
   • (d) to reside at Falelatai and to stay away from Afega (where the shootings took place);
   • (e) to report every Friday to the Faleolo Police Post; and
   • (f) not to contact any of the witnesses including via social media platforms such as Twitter, WhatsApp, Facebook etc.
4. The applicant applies to vary these bail conditions so that he can travel to Australia for the reasons stated above.
5. In his supporting affidavit, the applicant states at paragraph 4:
   • “THAT I am making this application because I have been advised that my daughter is diagnosed with cancer and it is incurable and I seek the indulgence of the Court to allow me to visit my daughter in Australia. I have attached a copy of a letter from my daughter’s doctor in Australia in support of my application. Attached and labelled with letter “A” is a copy of the said letter. As the Court will see the letter describes that she is currently undergoing treatment and life expectancy has been shortened due to this illness.”

Applicant’s submissions

6. The applicant submits he has complied with all his bail conditions and in addition to the two sureties of $20,000 each he has also provided a bail bond secured by a registered first mortgage on his property to secure his return. He is therefore not a flight risk. Current market value of his freehold land is $61,000.
7. It is submitted that the sole purpose of his intended travel is, “To provide invaluable physical, psychological and social support for his daughter during her extremely challenging time, especially as she adjusts to her cancer diagnosis and symptoms from cancer and treatments.”^[1]

Respondent’s submissions

8. The respondent submits that the police have a very strong case against the applicant who in his statement to the police admitted to shooting the two victims. It is therefore contended by the respondent that there is likelihood of a significant sentence of imprisonment. There is therefore a real risk that if the application for variation of bail is granted, the applicant will not return to face trial in September. The prospect of a lengthy imprisonment sentence will provide a strong incentive for the applicant not to return if given the opportunity.

Ties to Samoa and Australia

9. According to his affidavit dated 18^th January 2021, the applicant’s wife and all their five children are currently living in Sydney, Australia. His assets in Samoa consists of:
   • (a) house on customary land at Falelatai where he is presently living;
   • (b) a quarter acre vacant freehold land at Afiamalu jointly owned by him and his wife, valued at $61,000; and
   • (c) two motor vehicles registered under the wife’s name.

Discussion

10. Section 111, Criminal Procedure Act 2016 grants power to the Court to vary bail applications.
11. The evidence against the applicant is exceptionally strong. By his own statement, he admits shooting both victims. He also admits he was angry when he shot one of the victims. Prospects of prison sentence is high. The police through its Transnational Crimes Unit gathered information concerning the applicant’s past violent conduct resulting in convictions in both Australia and Samoa. I accept the contention by the respondent that the likelihood of a significant sentence of imprisonment provides a strong incentive for the applicant to abscond if given the opportunity.
12. Most significantly, having regard to the legal jeopardy he faces in Samoa, there is no incentive for the applicant to return given the very high possibility of a lengthy imprisonment sentence and the fact that all his immediate family are in Australia.
13. The Court notes with sadness the unfortunate incurable illness which will impact the life expectancy of the daughter, a single mother of seven young children, and which prompted the applicant to lodge this application. But given the circumstances particularly the nature of the offending, the applicant will have to console with the daughter remotely utilising, for example, video conferencing and other internet facilities. Compassionate and humanitarian grounds alone in the present circumstances cannot tip the balance in the applicant’s favour.
14. It is true that Samoa has extradition arrangement with Australia and the purpose of imposing condition of sureties is to fund extradition proceedings should the applicant decide not to return. But extradition proceedings are time consuming and very costly. The two proffered sureties of $20,000 each by a public servant and an employee of a private company are unsecured amounting to AUD$20,000 and could not be considered sufficient to fund extradition costs. Even with the price of the encumbered freehold land (equivalent to AUD$30,000), the amounts are insubstantial and their forfeiture cannot be regarded as sufficient incentive for his return considering the legal jeopardy he faces if he returns.

Result.

15. The application to vary bail conditions is denied.
    

JUSTICE VAAI

^[1] Support letter from the daughter’s medical team.