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Police v Faisauvale [2009] WSSC 83 (24 August 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

TAGALOASA FILIPAINA FAISAUVALE
of Faleatiu and Vaitele.
Accused

Counsel: P Chang for prosecution
V Papalii for accused Tagaloasa Filipaina Faisauvale

Ruling: 24 August 2009

RULING OF SAPOLU CJ

The charges

1. The accused Tagaloasa Filipaina Faisauvale of Faleatiu and Vaitele is jointly charged under the Narcotics Act 1967 with two other accused with one count of possession of narcotics and one count of possession of a pipe for the purpose of committing an offence against the Act. He is also individually charged with one count of being armed with a dangerous weapon, namely, a 22 pistol semi-automatic without a lawful and sufficient purpose, one count of possession of an unlawful weapon, namely, a 22 pistol semi-automatic, and possession of unlawful ammunitions. Except for the one count of possession of narcotics which is triable under the jurisdiction of this Court, the other four counts are triable under the jurisdiction of the District Court. However, that does not preclude this Court from having jurisdiction to try those four counts.
   
2. There is no dispute that an accused charged with the offence of possession of narcotics which carries a maximum penalty of 7 years imprisonment is not bailable as of right but bailable at the discretion of the Court.
   
3. The prosecution did not oppose the bail application made on behalf of the two accused who are jointly charged with the present accused. But they strongly oppose the bail application made on behalf of the present accused Tagaloasa.
   

Grounds of the bail application

4. There are really four grounds for the bail application. These are:
   
   • (a) The accused strongly denies the charges against him and is entitled to the constitutional presumption of innocence until proven guilty according to law;
     
   • (b) It is the invariable practice of this Court to grant bail to other offenders charged with similar offending, even offenders with previous convictions, and it is not in the public interest to deviate from that practice;
     
   • (c) The accused has been in custody for two weeks and that should have given the police ample time to complete their investigation;
     
   • (d) There is no risk of flight
     

Opposition to the bail application

5. The grounds on which the prosecution has opposed the bail application are set out in the affidavit of sergeant Tomasi Tuua. They are as follows:
   
   • (a) The police are greatly concerned with the safety and/or life of the informer if the accused is released on bail;
     
   • (b) The police have reasonable grounds to believe that the accused was/is also dealing in prohibited narcotics/drugs from both his residences at Faleatiu and Vaitele.
     
   • (c) The police have great suspicions that the accused may have possession of numerous unlawful weapons at his residence at Faleatiu which the police are currently investigating;
     
   • (d) The police are concerned for the safety of the people who reside with the accused;
     
   • (e) The police have cause to believe that the accused is also a danger to the public especially when he is under the influence of drugs;
     
   • (f) The police have great suspicions that the accused and his comrades are planning some serious offences which the police are still investigating;
     
   • (g) The police have great suspicions that most of the accused’s employees at Faleatiu are armed with dangerous weapons and are also under investigation; and
     
   • (h) The accused is on parole for two murder convictions in 1980 and 1981.
     

Guidelines or criteria on the exercise of the Court’s discretion in a bail application

6. In Leafa Vitale v Police [1999] WSCA 4, the Court of Appeal laid down the guidelines or criteria to be considered by the Court in the exercise of its discretion in a bail application. The Court of Appeal said:
   

"Guidelines or criteria for bail are more fundamental; they are matters to which the Court is expected to pay regard in exercising its discretion. The following extract from the judgment of Chilwell J at p 379 of Hubbard v Police [1986] 2 NZLR 738 is a useful summary.

"‘There are two main tests involving factual questions which have to be considered by the Court in determining whether to grant or refuse bail. They are, first, the probability or otherwise of the defendant answering to his bail and attending at his trial, and, secondly, the public interest.

"‘So far as the first factor is concerned, the criteria to be considered include:

"(i) The nature of the offence with which the person is charged, and whether it is a grave or less serious one of its kind.

(ii) The strength of the evidence; that is, the probability of conviction or otherwise.

(iii) The seriousness of the punishment to which the person is liable and the severity of the punishment that is likely to be imposed.

(iv) The character and past conduct or behaviour of the defendant

(v) Any other special matter that is relevant in the particular circumstances to the question for the likelihood of the accused appearing or not appearing.

"Public interest criteria include:

"(i) How speedy or how delayed is the trial of the defendant is likely to be.

"(ii) Whether there is a risk of the defendant tampering with witnesses.

"(iii) Whether there is a risk that the defendant may re-offend while on bail.

"(iv) The possibility of prejudice to the defence in the preparation o the defence.

"(v) Any other special matter that is relevant in the particular circumstances to the public interest"

7. Reference should also be made to what Blanchard J said on this subject in R v Blaikie [1999] NZCA 205; (1999) 17 CRNZ 122 which is cited in Papu v Police [2006] WSSC 39.
   
8. No one factor is decisive. All the various factors, including the presumption of innocence, need to be weighed in the balance in the exercise of the Court’s judgment, before arriving at a decision.
   

Evidence that may be taken into account in deciding a bail application

9. As it appears from Leafa Vitala v Police [1999] WSCA 4, the Judge in considering a bail application may take into account information available in the record or given to him by counsel and which considers as reliable as well as background knowledge. The Court said:
   

"No evidence was given at the bail hearing. In accordance with customary practice the applications were decided by the Judge on information available in the record or given to him by counsel and which he could accept as reliable. In this particular case he had some background knowledge as well, because he had dealt with the principle offender and with other matters involving the applicants.

"In Hubbard v Police Chilwell J accepted that where there is no evidence given on oath the Court could rely on the outline of facts given by counsel for the Crown in determining whether to grant bail and this approach was generally approved by the Court of Appeal R v Tonihi [1995] 1 NZLR 154, with the exception that where unsworn information was critical to the outcome, the Judge ought not act upon it to the extent that exception is taken to it. Consideration may then be given to an adjournment to enable sworn evidence to be presented orally or by affidavit. The Court added ‘it is neither reasonable nor practicable to expect the police to be ready with evidence in every instance where bail is opposed’ (ibid p156."

10. Reliable hearsay may also be taken into account in considering a bail application. In Leafa Vitale v Police [1999] WSCA 4, the Court of Appeal also said;

"[Bail] applications are generally and legitimately conducted with reliable hearsay being generally acceptable. In the present case, this practice was followed, with the Court being given information by counsel which it could chose to accept if considered reliable, without the need for sworn evidence. At no state was there any challenge to the procedure which was adopted by all counsel, nor did any of them request any fact to be established by sworn evidence".

Discussion

11. Counsel for the prosecution in her oral submissions informed the Court that on 8 August 2009, the police, upon receiving information, went and searched the home of the present accused at Vaitele-uta where they found narcotic substances, namely, marijuana and a pipe (utensil) used for smoking narcotics. The 22 pistol semi-automatic and ammunitions are alleged in the charges to have been found in the possession of the accused at Fugalei.

12. Even though the accused denies the charges against him, he does say, amongst other things, in his affidavit of 18 August 2009 that he was standing in front of the fence near his house at Vaitele when the police found the marijuana substances in his house. As for the ammunitions, the accused says in his affidavit that the ammunitions were found inside his car which had been given to a mechanic to fix. His car was returned by the mechanic on the same day that the police searched it and found ammunitions in it. As for the pistol, the accused says it was found inside his wife’s bag. I have chosen, for present purposes, after careful consideration to accept what counsel for the prosecution told the Court as reliable.

13. There was no request for any fact asserted by counsel for the prosecution in relation to the marijuana substances being found inside the accused’s house to be established on oath. However, I have grave doubts whether I would accede to such a request which would have the effect of disclosing the identity of the relevant police informer particularly for safety reasons deposed to in the affidavit of sergeant Tomasi Tuua.

14. The accused is also not unknown to the Court and the police because of offenses he had been charged with in the past. He is a well-known figure to the Courts, the police and the community. I should also mention that there have been narcotic cases before the Court which clearly suggested a connection between the marijuana substances with which the offenders were charged in those cases and Faleatiu which is the village of the present accused.

15. I also take into consideration what is deposed to in the affidavit of sergeant Tomasi Tuua which suggests the possibility of the accused tampering with witnesses and re-offending as well as the potential danger to the safety of the police informer and people who reside with the accused if the accused is granted bail.

16. Whilst it has been the usual practice of the Court to grant bail to accused persons in narcotic cases, I do not accept there has been such an invariable practice. Each case is considered on its own facts. In this case, I have serious concerns that the accused may not appear at his trial if granted bail. This is based on the material placed before the Court including the material from the parole service regarding the accused’s parole.

17. As for any concern about a possible delay in hearing this case, I have decided to set this case for hearing in October or November 2009. That will be done when this case is re-called for mention on 31 August 2009.

Conclusions

18. Having considered all the various matters that were raised by counsel on both sides, I have decided to deny bail.

19. This matter is adjourned to 31 August 2009 for plea and for setting a hearing date in October or November this year.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Toa Law for accused