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Police v Faualo [2024] WSSC 115 (13 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Faualo & Ors [2024] WSSC 115 (13 November 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant/Respondent

AND:

FAAMANU FAUALO, FOETUESE AH NUI, ROY JUNIOR WILLIAMS

Defendants/Applicants

Counsel: J. Leung Wai for Prosecution

A. Su’a for Faamanu Faualo

V. Faasii for Foetuese Ah Nui

Roy Junior Williams appears in Person
Hearing: 8 November 2024
Decision: 13 November 2024

RULING OF TUATAGALOA J
(Bail Application)

Proceedings

1. As a result of a police raid on 20 July 2024, the applicants were jointly charged with possession of 63 zip lock bags containing methamphetamine which attracts the maximum penalty of 14 years imprisonment.^[1]
2. The applicants pleaded not guilty to the charges against them. The applicants have been remanded in custody since 19 August 2024. They now seek bail while awaiting the date of their trial which has been set for the week commencing 31 March – 3 April 2025, some four months away.
3. The Police oppose bail.

The Bail Applications

4. The application for bail by the applicants, Faamanu Faualo and Foetuese Ah Nui, are based on the following similar grounds:
   • (a) The applicants are presumed innocent until proved guilty.
   • (b) The applicants are bailable at the Court’s discretion pursuant to section 98(4).
   • (c) The applicants pose no flight risk and are willing to surrender their passports (if not already) and there is no prejudice to the prosecution if strict bail conditions are imposed.
   • (d) There is no risk that the applicants will interfere with prosecution witnesses or evidence as they will be residing away from the place of offending.
   • (e) The applicants are willing to abide by all conditions if bail is granted by the Court.
5. There were affidavits filed by the applicants and members of their families in support of the applications.

Opposition to Bail

6. In this particular proceeding reliance is placed by the prosecution on the seriousness of the charge (section 99(h)); the severity of punishment to which the applicants are liable (section 99(j)), the proven past criminal behaviour of the applicants as evidenced by the previous conviction record (section 99(f)) and having pleaded guilty and other relevant factors (section 99(k)) of possible affiliations and associations with other drug offenders and escaping from lawful custody.

The Law

7. The applicants are not bailable as of right. The penalty of the offence they are charged with is more than 3 years.^[2] The bail application is therefore brought pursuant to s.98 (4) of the Criminal Procedure Act 2016 (“CPA”) which provides:
   • (4) A defendant charged with an offence and is not bailable as of right is bailable at the discretion of the Court unless the Court is satisfied that there is just cause for the defendant to be remanded in custody.
8. Because they are not bailable as of right but at the discretion of the Court, the crucial question is whether there is just cause for the applicants to be remanded in custody.

Approach to a Bail Application

9. The modern approach of the Samoan Courts to an application for bail is well established: see Police v Posala [2015] WSSC 92; Police v Ah Ching [2016] WSSC 31; Police v Barlow [2017] WSSC 103; Lam v Police [2018] WSSC 119 to name a few. This modern approach involves two stages pursuant to section 99 of CPA which sets out factors relevant for the determination of bail.
10. The first stage is mandatory; where the Court in considering whether there is just cause for a defendant to be remanded in custody, must consider:
    • (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.
11. The above considerations are stated in s.99 (a), (b), (d) and (k) of the CPA. The risk must be a ‘real and significant’ one, not just any fanciful or hypothetical risk. The prosecution must prove a real and significant risk.
12. The second stage of this approach is the Court may consider other matters stated in s.99. These matters are discretionary.
13. The severity of the charge is not, however, enough to deny bail. The prosecution must demonstrate “not merely that the charge(s) is serious but also that there is something additional which favours detention of the defendant in the public interest”.^[3]
14. Whilst it is correct that a person charged with an offence is presumed innocent until proved guilty according to law, it must be borne in mind that an application for bail is not concerned with the innocence or guilt of a defendant. A bail application is concerned with the question of whether a defendant should be at liberty pending the determination of guilt or innocence.^[4]
15. No one factor is decisive. All the various factors, including the presumption of innocence, need to be weighed in balance in the exercise of the Court’s judgment, before arriving at a decision.
16. Bail conditions can be imposed to avoid any of the risks identified except where such risk is real and significant.
17. The applicants bail applications are considered separately although they are jointly charged:

Faamanu Faualo

18. The prosecution further opposes bail for this applicant on the ground that the applicant has a previous conviction which triggers the reverse onus of proof pursuant to section 101 CPA 2016. The burden now lies with the applicant to provide sufficient evidence to satisfy the Court, on the balance of probabilities that bail should be granted. A proposition with which I agree.
19. Affidavits were filed by the applicant, his wife and his brother in support of the application for bail. I turn now to consider the application for bail.

Is there is a risk that the defendant may fail to appear on the date to which he has been remanded?

20. Counsel for the applicant submits the following:
    • (a) The previous conviction is of a different nature from the current offence that he is seeking bail. The previous conviction was negligent driving causing injury to a passenger to which the applicant was only imposed with a monetary fine.
    • (b) The applicant has the intention to defend the charges against him.
    • (c) The applicant’s brother and wife support the Faamanu’s application for bail as stated in their affidavits, they will take full responsibility to ensure that Faamanu will appear for his trial and abide by any conditions imposed by the Court.
21. There is no risk that the applicant will fail to appear in Court on the date set for trial if granted bail because (i) he has no history of breaching bail or failing to turn up to Court; (ii) there is also no evidence that the applicant with his previous offences tried to flee the country to avoid the charge against him; (iii) the applicant has surrendered his passport eliminating the risk of the applicant to absconding.

Is there a risk that the defendant may interfere with witnesses or evidence?

22. The prosecution list of witnesses has not been disclosed. I presume the majority of the witnesses will be police officers given that the charges arose from a drug raid. The applicant has offered to be bailed to Vaitele away from the place of offending. This will remove or limit any risk of tampering with any evidence.
23. There is no evidence provided by the prosecution of any real or significant risk that the applicant will interfere with any witnesses or evidence.

Is there a risk that the defendant may offend while on bail?

24. There is no evidence provided by the prosecution of any real or significant risk that the applicant will offend while on bail. The applicant should be mindful that should he reoffend while on bail, the chances of him being granted bail in the future will be very slim to none.

Are there any matters that would make it unjust to detain the defendant?

25. The date of hearing is set for the week commencing 31 March 2025. The applicant has been in custody since 9 August 2024 and if he is to remain in custody it would mean that he would be in custody for eight (8) months. Furthermore, it will be unjust to be continuously detained especially where prosecution offered no evidence of the applicant having any history of failing to turn up to any of his court matters (previous convictions) or not abiding by his bail conditions nor any evidence of the applicant tampering with prosecution witnesses or that he will offend while on bail.
26. After weighing up all the relevant circumstances, I am satisfied that the applicant has established on the balance of probabilities that there are no real and significant risks for the matters raised. The applicant, Faamanu Faualo is released on the following conditions:
    • (i) The applicant is to reside at Vaitele with his brother;
    • (ii) Pursuant to section 106(2) CPA the applicant is to report to the Faleata Police Post every Monday and Friday before 12:00 noon;
    • (iii) The applicant pursuant to section 106(3)(d) is not to be seen in or around Vaivase-uta and/or the place of offending until this matter is dealt with by the Court;
    • (iv) The applicant pursuant to section 106(3)(b) is not to contact any of his co-defendants or to affiliate with any known drug offenders; and
    • (v) The applicant not to commit any offence while on bail pursuant to section 106(3)(c).

Foetuese Ah Nui

27. The circumstances of this applicant is that he reoffended while on bail to awaiting sentence on similar charge(s) that he has pleaded guilty to. In that respect, he breached his bail conditions (for that matter) which means those bail conditions are revoked and he is to be remanded in custody to await sentencing of the offence that he has breached his bail conditions. Counsel advised that this is scheduled for 20 November 2024.
28. This applicant is also charged with escape from lawful custody.^[5] The charge means that the risk of the applicant turning up for his matters, the risk of offending while out on bail, the risk of affiliating with other known drug dealers are all very real and significant.
29. The applicant, Foetuese Ah Nui’s bail application is hereby denied. The applicant can revisit his bail application with the current charges after his prior offending is dealt with on 20 November 2024.

Roy Junior Williams

30. This applicant represents himself. The grounds of his request for bail are provided for in his handwritten letters.^[6]

Is there a risk that the applicant may fail to appear on the date to which he will be remanded for trial?

31. The applicant through various handwritten letters to the Court submits there will be no risk with him not appearing on the date of trial for the following reasons:
    • (i) The applicant/defendant has the intention to defend the charges against him;
    • (ii) The applicant/defendant is willing to surrender his passport, so the risk of absconding is minimised if not eliminated;
    • (iii) The applicant’s aunt, Iuni Iakopo, supports the application for bail by making sure that the applicant will appear for his trial and abide by any conditions imposed by the Court.^[7]
32. The prosecution did not offer any evidence or reasons in support of its opposition to bail on this ground.

Is there a risk that the applicant may interfere with witnesses or evidence?

33. The applicant submitted a letter from his aunt, Iuni Iakopo, confirming her support for the applicant to reside with her at Ululoloa away from the place of offending. By residing elsewhere, the risk of tampering with evidence is minimised if not eliminated. Furthermore, the charge is the result of a police raid which means that the witnesses would be mainly police officers. I doubt if the applicant will take the risk to try and influence or interfere with the police officers who would be witnesses.
34. The prosecution did not offer any evidence or reasons in support of its opposition to bail on this ground.

Is there a risk that the applicant may offend while on bail?

35. The applicant has no criminal history of offending. There is also nothing in the material before the Court to suggest that the applicant may offend if granted bail.

Is there any matter that would make it unjust to detain the applicant?

36. The applicant submits that he has been in custody since July 2024 and it would be unjust to be continuously detained given that the hearing is not until March 2025. Although, the hearing is only about four (4) months away the fact that the applicant would have been in custody for about eight (8) months that would make it unjust especially when the prosecution offers no evidence or reasons why the applicant should continue to be in custody.
37. The severity of the charge in itself is not, however, enough to deny bail. The prosecution must demonstrate “not merely that the charge(s) is serious but also that there is something additional which favours detention of the defendant in the public interest”.^[8] The prosecution were not able to provide ‘anything additional’ to favour continued detention of the defendant.
38. The applicant, Roy Junior Williams is released on the following conditions:
    • (a) He is to surrender all or any travel documents (if not already) to the Registrar of the Court to be held until final disposal of this matter;
    • (b) The applicant to reside with his aunt, Iuni Iakopo in Ululoloa;
    • (c) Pursuant to section 106(2) of the CPA, the applicant is to report to the Faleata Police Post every Monday and Friday before 12:00 noon;
    • (d) The applicant is not to try to contact any of his co-defendants or to affiliate with any known drug offenders; and
    • (e) The applicant is not to return to the place of offending (house) or the vicinity thereof until this matter is dealt with by the Court.
      

JUSTICE TUATAGALOA

^[1] Narcotics Act 1967, sections 7(1)(a) & 18(a).
^[2] Criminal Procedure Act 2016, s.98(2) - A defendant is bailable as of right who is charged with an offence for which the maximum punishment is less than 3 years imprisonment, unless the offence is one that relates to assault on a child, or by a male on a female.
^[3]R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122,125, Police v Posala [2015] WSSC 92 at para 18.
^[4]R v Lindsay James Tawairua Wilson [2003] NZCA 3, para [25], delivered by Elias CJ referred to in Lam v Police [2018] WSSC 119 (4 Dec 2018).
^[5] Information 2024-04482 SC/CR/UP #2.
^[6] Handwritten letters dated 19/08/24, 2/9/24, 16/9/24 and 3 undated letters
^[7] Handwritten letter undated, handed in to Court on 8/11/15


^[8] R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122,125, Police v Posala (ibid) at para.18