SUPREME COURT 
Police v Barlow [2017] WSSC 107

Case name: 	Police v Barlow	
		
Citation: 	[2017] WSSC 107

Decision date: 	26 July 2017	
		
Parties: 	POLICE v SCOTT ROBERT BARLOW male of Ululoloa.	
		
Hearing date(s): 	26 July 2017	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE SAPOLU	
		
On appeal from:		
		
Order:	-	Bail application is denied.	
		
Representation: 	O Tagaloa and A Matalasi for prosecution
A Lesa for accused	
		
Catchwords: 	approach to bail application – bail application– continued detention – just cause – real and significant – risk 	
		
Words and phrases:		
		
Legislation cited:	Criminal Procedure Act 2016 ss98 and 99	
		
Cases cited:	Police v Ah Ching [2016] WSSC 31
Police v Posala [2015] WSSC 92 	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SCOTT ROBERT BARLOW male of Ululoloa.
Accused

Counsel:	
O Tagaloa and A Matalasi for prosecution
A Lesa for accused

Hearing:	26 July 2017

Ruling:	26 July 2017

RULING OF SAPOLU CJ
Proceedings
1. 	These proceedings are concerned with a bail application by the accused which is opposed by the prosecution.
Relevant statutory provisions 
2. 	The bail application is brought under s.98 of the Criminal Procedure Act 2016 which provides:
	“98. Rules as to granting bail - (1) A defendant is bailable as of right who is charged with an offence that is not punishable by imprisonment.
	“(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) 	Despite anything in this section, a defendant who is charged with an offence punishable by imprisonment is not bailable as of right if the defendant has been previously convicted of an offence punishable by imprisonment.
	“(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.
3. 	In respect of the factors to be taken into consideration in determining whether there is just cause for the continued detention of the accused, s.99 provides:
	“99. Factors relevant to decision as to bail - In considering whether there is just cause for the defendant to be remanded in custody or for continued detention, a Court must take into account the following:
(a) whether there is a risk that the defendant may fail to appear in Court on the date to which the defendant has been remanded; 
(b) whether there is a risk that the defendant may interfere with witnesses or evidence; 
(c) any previous conviction on an offence of a similar nature; 
(d) whether there is a risk that the defendant may offend while on bail; 
(e) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed; 
(f) the character and past character or behaviour, in particular proven criminal behaviour of the defendant; 
(g) whether the defendant has a history of offending while on bail, or breaching Court orders including other orders imposing bail conditions;
(h) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind;
(i) the strength of the evidence and the probability of conviction or otherwise;
(j) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
(k) any other matter that is relevant in the particular circumstances”.
4. 	In respect of the type of evidence that may be received in the hearing of a bail application, s.105 provides:
	“105. Evidence in bail hearing – (1) When hearing an application for bail, a Court may receive as evidence any statement, document, information, or matter that it considers relevant, whether or not it would be otherwise admissible in a Court.
	“(2)	As an exception to subsection (1), when considering the matter described in section 99:
“(a)	the Court may only consider a statement, document, information, or matter that would be admissible in a Court if made by the appropriate person or given or produced in proper form; but
“(b)	for the purpose of the bail hearing, it does not matter whether evidence – 
	“(i)	is given or produced by the appropriate person or given or produced in sworn or unsworn form; or
	“(ii)	is otherwise given or produced in a form in which it would be admissible in a Court.
Background 
5. 	On Wednesday afternoon 28 June 2017, the customs officers on duty at the Fagalii airport seized a package alleged to contain methamphetamine which the accused had come to the airport to uplift.  The police were informed and they came and took the accused to the Apia police station for questioning.  Subsequently, the accused was charged with the following charges:
(a)	possession of methamphetamine, namely, three plastic bags of methamphetamine weighing 5.9 grams, contrary to s.7 (1) (a) of the Narcotics Act 1967, which carries a maximum penalty of life imprisonment pursuant to s.18 (a);
(b)	possession of methamphetamine, namely, three plastic bags weighing 5.9 grams, contrary to s.7 (1) (a) of the Narcotics Act 1967, which carries a maximum penalty of life imprisonment pursuant to s.18 (a); and
(c)	possession of a utensil, namely, one glass pipe, contrary to s.13 (b) of the Narcotics Act 1967, which carries a maximum penalty of 7 years imprisonment.
6. 	The accused was remanded in custody on 28 June 2017 after being charged by the police.  When the charges were called for mention on Monday 17 July 2017, the accused entered a plea of not guilty through his counsel.  An application for bail had been filed on 12 July 2017 but at the mentions on 17 July 2017 the prosecution sought an adjournment of the hearing of that application as they proposed to oppose it.  Submissions opposing bail were then filed by the prosecution on 26 July 2017 and this matter proceeded to a hearing. 
Grounds in support of bail application 
7. 	 The following grounds were submitted by counsel for the accused in support of the bail application: 
(a)	the accused has denied the charges and is innocent until proven guilty;
(b)	the risk of flight is minimal if the accused is granted bail;
(c)	there is minimal risk of the accused offending if granted bail;
(d)	the likely lengthy delay in awaiting trial; and
(e)	the accused requires access to his counsel for the preparation of his case.
Approach to bail application 
8. 	In Police v Posala [2015] WSSC 92, this Court, on the basis of New Zealand authorities, said that in dealing with a bail application, the real question to be considered is whether there is just cause for the continued detention of the accused in custody.  In considering that question, the Court must take into account:
(a)	whether there is a risk that the accused may fail to appear on the date to which he has been remanded; or
(b)	whether there is a risk that the accused may interfere with witnesses or evidence; or
(c)	whether there is a risk that the accused may offend while on bail; and
(d)	any matter that would make it unjust to detain the accused.
9. 	As it appears from Police v Posala [2015] WSSC 92, paras 3, 17; Police v Ah Ching [2016] WSSC 31, para 12, it is not just any type of risk that will be enough to justify denying bail to the accused.  The risk must be a ‘real and significant’ one and it is for the prosecution to establish that such a risk exists.  Whether such a risk exists requires a proper inference to be drawn from proved facts.
10. 	In determining whether there is just cause for continued detention of the accused, including whether any of the said risks exists, the Court may take into account the following factors:
(a)	the nature of the offence charged;
(b)	the strength of the evidence and the probability of conviction or otherwise,
(c)	the seriousness of the punishment to which the accused is liable, and the severity of the punishment that is likely to be imposed,
(d)	the character and past conduct or behaviour, in particular proven criminal behaviour, of the accused,
(e)	whether the accused has a history of offending while on bail, or breaching Court orders, including orders imposing bail conditions,
(f)	the likely length of time before the matter comes to hearing or trial,
(g)	the possibility of prejudice to the defence in the preparation of the defence if the accused is remanded in custody,
(h)	any other special matter that is relevant in the particular circumstances.
11. 	The gravity of the offence with which the accused is charged is not of itself enough to justify a conclusion that there is a real and significant risk that the accused will not answer bail:  Police v Posala [2015] WSSC 92, para 18; Police v Ah Ching [2016] WSSC 31, para 14.  
Section 99 of the Criminal Procedure Act 2016 and Police v Posala
12. 	In Police v Posala [2015] WSSC 92, the approach adopted by this Court to a bail application is that in considering whether there is just cause for continued detention, of the accused, Court must take into account whether there is a risk that the accused may fail to appear on the date to which he has been remanded, or whether there is a risk that the accused may interfere with witnesses or evidence, or whether there is a risk that the accused may offend while on bail.  The Court must also take into account any matter that would make it unjust to detain the accused.  This last requirement, in my view, takes into account any relevant matter that is not related to any of the risks.
13. 	The factors set out in para 10 of this ruling may then be taken into consideration insofar as they may affect the assessment of the risks or any matter that would make it unjust to detain the accused.  So it is a two-step process.  Section 99 of the Criminal Procedure Act 2016 has lumped together the risks that must be taken into account and the factors that may be taken into consideration in the assessment of the risks and whether there is any other matter that would make it unjust to detain the accused.  To avoid difficulties in the application of s.99 because of way it has been drafted, I am of the respectful view that the approach to a bail application in Police v Posala [2015] WSSC 92 should be followed.  It is a clear and logical approach.  It also avoids the difficulties that would arise from a strict interpretation of s.99.
Discussion 
(a)	First issue:  Is there a risk the accused may fail to appear on the date to which he has been remanded?
14. 	The accused resides with his wife and family in Samoa.  He and his wife run a business in Samoa.  His passport has been surrendered to the registrar.  The accused has appeared in Court before on different but similar offences and there is no evidence that he tried to flee the country.  I am therefore not satisfied that there is a real and significant risk of flight if the accused is granted bail.
(b)	Second issue:	Is there a risk that the accused may interfere with witnesses or evidence?
15. 	The primary concern of the prosecution is that there is a risk that the accused may interfere with its key witness because of his familiarity with that witness.  According to the sworn affidavit of 26 July 2017 by the accused’s wife, this witness is a taxidriver and he is occasionally used by her family to run errands for them and to collect her children from school.  The statement made by this witness to the police and which was produced by the prosecution, shows that this witness and the accused are very familiar with each other.  On the day of the alleged offending the accused sent this witness in his taxi to pick up the accused’s co-accused from the wharf at Mulifanua and brought him to the accused’s house at Ululoloa. They then had a meal at the accused’s house.  Afterwards, this witness drove the accused and his co-accused to the Fagalii airport where the accused was later arrested by the police in relation to the methamphetamine and utensil with which he has been charged.  The said witness also lives with his family at Alamagoto and the accused lives at Ululoloa.  If the accused is granted bail, it would not be difficult for him to come into contact with the prosecution’s key witness again.
16. 	In my opinion, there is a real and significant risk that the accused will interfere with the key prosecution witness if granted bail.
(c)	Third issue:	Is there a risk that the accused may offend while on bail?
17. 	The accused was convicted in 2014 on the same type of offences as the ones for which he is presently being charged.  He was sentenced to 18 months imprisonment to be followed by 3 years supervision which will end on 13 July 2018.  He is therefore currently under supervision.  However, whilst under supervision the accused reoffended and was convicted of possession of an unlawful weapon and for presenting a firearm.  He was fined $1,500.  He is now appearing before the Court again on the charges of possession of methamphetamine and possession of utensils whilst still under supervision.
18. 	The accused’s previous conviction card seems incomplete.  The prosecution should check this out.  I say this because previously the accused was imprisoned for drug offending.  His application for parole in relation to that offending was denied by the parole board on which the Chief Justice is the chairman.
19. 	In the circumstances, I am of the view that there is a real and significant risk that the accused may reoffend if granted bail.
(d)Fourth issue:	Is there any matter not already covered that would make it unjust to detain the accused?
20. 	There are two relevant matters that was raised by counsel for the accused that are not related to any of the risks.  The first is that if bail is denied the accused will be detained in custody for trial in December 2017 or January 2018. This is because of the current state of the Court’s cases already set down for hearing.  With the consent of the prosecution, this matter has been set down for hearing in the first week of September 2017.  So the accused would not have to wait until December 2017 or January 2018 for his trial.  The second matter raised by counsel for the accused is that the accused needs access to counsel.  I do not think that the accused will be denied access to counsel if he remains in custody.  Counsel may still visit and interview him in prison.  If there are problems in that regard, counsel may arrange for the accused to be brought from prison to the Apia police station where he could interview him and obtain any instructions.  There is therefore no other matter that would make it unjust to detain the accused.
Conclusion 
21. 	For the reasons given, the bail application is denied.
CHIEF JUSTICE