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Police v Rapi [2025] WSSC 65 (8 May 2025)

IN THE SUPREME COURT OF SAMOA
Police v Rapi [2025] WSSC 65 (8 May 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

RAPI JUNIOR TUIPINE SAU RAPI, male of Toamua and Auckland New Zealand.

Defendant

Representation: J. Leung Wai for Prosecution
T. Toailoa for Defendant

Bail Variation hearing 2^nd May 2025.
And Ruling:
Reasons: 8^th May 2025

REASONS (RULING ON BAIL VARIATION APPLICATION)

1. On 2^nd May 2025, I heard the defendant’s application to vary bail conditions to permit his travel to New Zealand. The application was denied. These are my reasons.
2. The accused faces two charges, one charge of forgery and one charge of theft as a servant.

Background:

3. The accused trial is scheduled for week commencing 6^th October 2025. He seeks bail variation so he can travel to New Zealand. The defendant has secured a New Zealand residency visa. A condition of the visa is that he must enter New Zealand before 4^th May 2025, namely, the day following the hearing on the 3^rd May 2025. The defendant describes his concerns of failing to enter New Zealand as: “I am extremely worried that I may lose this golden opportunity, which so many people apply for every year for the annual quota...”
4. In the New Zealand Immigration Service (“NZIS”) letter of offer dated 4^th February 2025 offering the defendant a place on the quota scheme, the letter states that:
   • “...Before you first travel to New Zealand, you must tell us about any changes to your circumstances that may affect a decision to grant you entry permission under your resident visa, including:
     • ...
     • Changes to your circumstances that could affect our assessment of the health or character of any person included in this application.
     • ...”
5. The accused parents have offered to be sureties and his brother has offered his car also as security.
6. Prosecution opposes variation of bail on the grounds of:
   • the charges are serious;
   • if granted residency, there is a real risk of the accused not returning;
   • the case against the defendant is strong;
   • there is a strong likelihood of further charges being filed; and
   • due to these factors, the defendant will lack motivation to return to face the charges.

Relevant Law:

7. An accused granted bail may apply for variation of bail conditions.^[1]
8. As I stated in Police v Timblique [2024] WSSC 88, section 111 does not set out the test to apply when determining an application to vary bail conditions. The test however is the same as that which applies when imposing bail conditions in the first place.^[2] In this context, the Court may impose such conditions as the Court considers reasonably necessary to ensure that an accused:^[3]
   • (a) appears in Court on the date to which the accused has been remanded; and
   • (b) does not interfere with any witness or any evidence against the defendant; and
   • (c) does not commit any offence while on bail; and
   • (d) that protects the community.

Discussion:

9. This is not a case about whether to grant the accused bail or not. He has been granted bail. What he seeks is bail variation to permit him to travel to New Zealand. The issue is what conditions are reasonably required to ensure that the defendant appears for trial and specifically, whether to grant bail variation to permit him travel to New Zealand. There is no presumption that a defendant should be permitted to travel outside Samoa. As I noted in both Police v Timblique [2024] WSSC 88 and Police v Veniasi Amosa (Unreported) dated 8^th April 2025, granting of overseas bail is an indulgence, even where there are sureties.
10. In these proceedings, counsel for the defendant suggested some onus on prosecution to establish that bail variation should be declined. I respectfully do not agree. Bail conditions have been imposed. These required the defendant to surrender his travel documents and report to the Faleolo police post every Tuesday and Friday. When those conditions were imposed, they were imposed as reasonably necessary to meet those factors in section 106(3) of the CPA 2016, namely: to ensure that the defendant appears in court on the date to which he was remanded to appear; does not interfere with witnesses; does not commit any offence on bail; and is necessary for the protection of the community. The question in these proceedings is whether those bail conditions are reasonably necessary to manage the risks in section 106(3) of the CPA 2016. The prosecution concern in this application is the risk of flight and the defendant not re-appearing in Court for his trial week commencing 6^th October 2025.
11. I am satisfied that the surrender of the defendant’s passport and his continued signing two times per week is reasonably necessary to manage his risk of non-appearance in October 2025. First, the prosecution case against the defendant for forgery and theft as a servant is strong. In his caution statement to police made on the 16^th February 2025, the defendant admitted to the collection of a number of payments amounting to approximately $29,000.00 for his then employer, the South Pacific Business Development (SPBD) and using those payments personally. This includes an admission to the collection of the $300.00, the subject of the theft as a servant charge. In terms of the forgery charge, that charge also appears to be strong. In her statement to police, the complainant refers to two loan agreements signed by the defendant under her name. While she had agreed to one loan agreement being taken out under her name, she had no knowledge of a second loan agreement that the defendant allegedly took out under her name.
12. Second, the defendant was only charged on the 16^th February 2025. As Constable Metita Aiono deposes, the police investigation is continuing and there is a possibility of further charges being filed given the defendant’s admissions to using payments received in the amount of some $29,000.00. If convicted of the present forgery and theft as a servant charges, there is an up to even chance of the defendant of a custodial sentence being imposed. This will be fact specific. If further charges are laid and the defendant convicted, the risk of a custodial sentence increases.
13. Third, the letter of offer dated 4^th February 2025 from the NZIS required the defendant to notify NZIS of “any changes” to his circumstances that “may” affect their decision to grant him entry permission in terms of the NZIS assessment of his character. From the bar table, counsel for the defendant confirmed that the defendant had not informed the NZIS of the charges, though he had asked his immigration agent if his entry date could be deferred pending conclusion of these proceedings. He was informed no.
14. In terms of his prospective employment, the defendant was offered employment on 17^th May 2024 with Taylor Preston Limited. The position would be kept open for the defendant for 5 months. That period has expired. There is no independent evidence that the position remains open and certainly no indication that he has disclosed to his prospective employer the need to travel to Samoa in October to attend his trial. He also does not have a return ticket to Samoa.
15. As the defendant himself says, his move to New Zealand is a “golden opportunity” for himself, his wife and his 5 year old child. Although he is presumed innocent and has not been found guilty of the charges, the charging of the defendant is a change in circumstance that should have been disclosed to the NZIS. This certainly would have shown his complete candour with the NZIS and strengthened his application for bail variation. His failure to do so suggests strong motivation by the defendant not to place at risk in any way his “golden opportunity” to live in New Zealand with his partner and child. The motivation not to place at risk his visa at this juncture will also likely motivate him to stay in New Zealand. If he returns to Samoa and is convicted of the charges of dishonesty, his future right to remain in New Zealand may be jeopardized whether under this visa or any further visa he may wish to apply for. If convicted, the defendant may also be at risk of a custodial sentence.
16. While Samoa has extradition arrangements with New Zealand, this is not determinative of this application. As the courts have stated on a number of previous occasions, that process can be lengthy, cumbersome, costly and complicated.
17. The defendant is already on bail. There is no presumption in favour of overseas bail. The grant of overseas bail is an indulgence granted by the court. The question I must determine is whether there is a risk that the defendant will fail to appear and I find that there exists a real risk that the defendant will fail to appear for his trial. The bail conditions are reasonably necessary to ensure that the defendant appears for his trial in October 2025. The provision of the sureties and security offered are inadequate to mitigate that risk.

Result:

18. Accordingly, the application to vary bail conditions is dismissed.

JUSTICE CLARKE

^[1] See section 111, Criminal Procedure Act 2016.
^[2] Section 106(1) and (3), Criminal Procedure Act 2016; Rewha v R [2015] NZHC 1959 at [11].
^[3] Section 106(3), Criminal Procedure Act 2016.