SUPREME COURT OF SAMOA
Police v Falealili [2013] WSSC 137

Case name: 	Police v Falealili	
		
Citation: 	[2013] WSSC 137	
		
Decision date: 	25 September 2013	
		
Parties: 	POLICE and ASOTASI VA’A FALEALILI male of Tanugamanono and Fasitoo-uta.	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:		
		
Representation: 	Ms L Taimalelagi for prosecution
Ms R V Papalii for defendant	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Vitale & Cain v Police [1999] WSCA 4	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
		
BETWEEN:

POLICE
Prosecution

AND:

ASOTASI VA’A FALEALILI male of Tanugamanono and Fasitoo-uta.
Defendant

Counsel:  Ms L Taimalelagi for prosecution
Ms R V Papalii for defendant
Decision:  25 September 2013
DECISION OF NELSON J
(Bail Application)
[1]	The defendant faces two counts of indecent assault on a female under 12 years of age. Each offence carries a lengthy imprisonment maximum penalty.  Defendant through his lawyer admits to a record of sexual offending in the United States where presumably he used to reside.  He is a registered sex offender and the California Sex Offenders Archives shows a previous conviction for rape.   
[2]	The defendants biological sisters aged 61 and 69 years have taken the unusual step of filing affidavits against the defendant.  These state that the defendant had an incestuous relationship with one of his three biological daughters.  Which daughter had four children by the defendant only revealed when she moved away from the defendant.  One sister also says the defendant was convicted in the United States of sexual crimes against his other two biological daughters and for that he was sent to prison.  That may be what the previous conviction for rape referred to above is for.  
[3]	Both of the defendants sisters express the view that it would be unsafe for the defendant to be around young females.  And are concerned about the safety of the complainant in the present matter who is a grand-daughter of their first cousin.  Both also say the defendant is prone to episodes of violence and has threatened to shoot people in the past.  
[4]	The law concerning pre-trial bail applications is settled: see the Court of Appeal decision in Vitale & Cain v Police [1999] WSCA 4.  There the court said the relevant criteria to be considered includes the following: firstly, the nature of the offence with which the person is charged and whether it is a grave or less serious one of its kind.  Secondly, the seriousness of the punishment to which the person is liable and the severity of the punishment that is likely to be imposed.  Thirdly, the character and past conduct or behaviour of the defendant.  Fourthly, any other special matter that is relevant in the particular circumstances to the question of the likelihood of the accused appearing or not appearing at his trial.  Fifthly, how speedy or how delayed is the trial of the defendant likely to be? And finally whether there is a risk that the defendant may re-offend while on bail.
[5]	As to the first matter there is no doubting the seriousness of the allegations.  There are two counts of indecently assaulting a girl under 12 years of age alleged to have occurred in April and May of this year.  Secondly, the offence is punishable by a maximum penalty of at least 7 years in prison depending on when in May the latest offence was allegedly committed.  Because the Crimes Act 2013 which increases the penalty for this particular offence was brought into force on the 1st of May this year.  What can be said is it is likely that upon conviction, given the current sentences being handed down by the Supreme Court for this kind of offence, coupled with the defendants previous record, is that the defendant would receive a sentence of imprisonment.  
[6]	As to the third matter of character and past conduct the defendants record as a registered sex offenders speaks for itself.  That is strong evidence of his character and past behaviour.  This only goes to show the value of having a Sex Offenders Register and those debating this issue should take note.  In addition to that there are also the matters referred to in the affidavits of the defendants own biological sisters.  It is clear from Vitales case that the court is entitled to rely on those and I note no counter affidavits have been filed.  
[7]	As to the fourth consideration of ‘special matter’ outlined in the Vitale case, what is relevant here is that the defendant previously resided in California.  He therefore has the ability and resources financial and otherwise to travel to the United States of America with whom this country has no treaty for extraditing fugitives.  
[8]	As to the fifth matter his trial is currently scheduled for mid-December 2013.  But this date can possibly be brought forward as the Chief Justice has directed that this case be brought back before him if the defendants bail application fails.  
[9]	As to the final matter of possible re-offending while on bail, given the defendants predilections the risk of re-offending in my assessment is high.  
[10]	I agree with counsel for the defendant that he has a constitutional right to the presumption of innocence.  But denial of bail pre-trial is not an infringement of a right exercisable at trial.  Certainly no finding is justifiable or even required at this stage as to the defendants guilt or innocence on these charges.  
[11]	I do not agree with defendants counsel that offenders with previous convictions charged with this sort of offence are normally given bail.  No case examples were cited in support of that proposition.  And in my experience defendants with a history of sexual offending are normally not granted bail.  
[12]	There are two important aspects that need to be borne in mind.  First, persons charged with the offence the defendant has been charged with are not bailable as of right.  Especially if such persons have been convicted of an offence punishable by imprisonment.  In respect of both these matters see section 71 of the Criminal Procedure Act 1972.  The defendant is only bailable at the discretion of the court.  
[13]	The second matter is every bail application is to be determined on its merits.  All circumstances and offenders are different.  And there are endless permutations and combinations that may apply.  This application is to be determined in accordance with the circumstances of this defendant and the alleged offending in this case.  Applying the tests laid down in Vitale the defendants application should be refused.  
[14]	As to counsels other argument about his constitutional right to liberty: that has not been infringed because he has been deprived of his liberty “in accordance with law” as provided for by article 6 (1) of the Constitution.  The Court of Appeal observed in Vitale that a deprivation of liberty in accordance with the law is a qualification - and a necessary one in order for society to function - to everyones right to personal liberty. 
[15]	Counsel advanced other arguments in support of her application. But these have been covered above.  
[16]	The defendants application for bail pre-trial is denied.  

JUSTICE NELSON