SUPREME COURT OF SAMOA
Police v Martin [2017] WSSC 171

Case name: 	Police v Alfred Martin a.k.a Afereti Talato Maposua Lemuelu	
		
Citation: 		
		
Decision date: 	04 April 2017	
		
Parties: 	POLICE v male of ALFRED MARTIN a.k.a AFERETI TALATO MAPOSUA LEMUELU male of Fasitoo-uta, Ululoloa and Falelauniu-uta.

Ruling date(s): 	04 April 2017	
		
File number(s): 		
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE	
		
On appeal from:		
		
Order:	-	Bail is denied. The accused is further ordered not to have any contact with prosecution witnesses and no further visitation from prosecution witnesses while the accused is in custody is permitted. 
-	As the Prosecution opposed bail, the prosecution should prepare and proceed to trial as soon as reasonably practicable so that the accused’s remand in custody is not unnecessarily lengthy.	
Representation: 	L Su’a Mailo for Prosecution
T P Valoia for the Defendant 

Catchwords: 		
		
Words and phrases:	attempt to cause serious bodily injury; accused applies for bail; bail is denied; accused became intoxicated and was angry with his brother for reasons unknown; armed himself with a machete and allegedly struck at his brother; brother fled in fear as did the accused’s wife; accused came across his son the deceased; allegedly struck him with the machete; alleged murder.	
		
Legislation cited:	Crimes Act 2013, 
Criminal Procedure Act 2016, 
Bail Act 2000 (New Zealand)

Cases cited:	New Zealand cases (see for example: 
Glenn Mills v New Zealand Police, unreported judgment of Heath J, 20 November 2009; G v Police (op. cit); 
New Zealand Court of Appeal in R v Keefe (CA 162/04, 22 July 2004); Henry J quoted from Saifiti v Commissioner of Police (1992) 7 CRNZ 695 at 698 (cited in Anderson v Police, New Zealand High Court; Unreported judgment of Chambers J, 20 October 1999) 
Reekers v Police, New Zealand High Court, Unreported judgment of Woodhouse J, 8 October 2008 at paragraph 52).	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ALFRED MARTIN a.k.a AFERETI TALATO MAPOSUA LEMUELU male of Fasitoo-uta, Ululoloa and Falelauniu-uta.
Accused

Counsel:	
L Su’a Mailo for Prosecution
T P Valoia for Defendant 

Ruling:	04 April 2017

RULING ON BAIL APPLICATION
[1]	The accused is charged with murder pursuant to sections 92(2)(a), 99 and 103 of the Crimes Act 2013 (“the Act”). He is also charged with attempt to cause serious bodily injury (sections 39 and 118 of the Act); common assault (section 123 of the Act) and armed with a dangerous weapon, namely a machete (section 25, Police Offences Ordinance 1961).
[2]	The penalty on conviction for the charge of murder is imprisonment for life. The other charges also carry imprisonment terms, the most serious of which is the charge of attempt to cause serious bodily injury.
[3]	Through counsel, the accused applies for bail. Before the Court on behalf of the accused is the application for bail together with accused counsel’s submissions in support of bail. The grounds put forward in support of the application for bail are:
•	the accused is bailable at the discretion of the Court;
•	the accused can reside at Fasitoo-Uta;
•	that it is the invariable practice of the Court to grant bail to other offenders charged with similar offending;
•	there is no risk that the applicant may fail to appear in Court on the date for which the accused is to be remanded;
•	there is no risk of flight; and
•	the accused can provide sureties.
[4]	The Prosecution opposes bail and has filed four (4) affidavits in opposition to the grant of bail. The Prosecution grounds of opposition are:
•	the maximum penalty for the charge of murder is life imprisonment and the accused is therefore not bailable as of right;
•	the accused has disclosed a continuous disregard for the law, has a history of domestic violence and there is a likelihood of the accused offending if released on bail;
•	the accused represents a threat of interfering with Prosecution witnesses if released on bail and he is aware of their location; and
•	the accused’s prior conviction record represents a risk of the accused offending if granted bail.
[5]	During the bail hearing, the Court referred accused counsel to sections 99 and 101 of the Criminal Procedure Act 2016 (“the CPA”) and in particular section 101 given the accused’s prior convictions. Neither prosecution or accused counsel addressed section 101 of the CPA at length and the onus of proof on applications for bail where an accused falls within the scope of section 101 of the CPA. I will address section 101 below.
Background:
[6]	The background to this matter as alleged by prosecution is set out in the affidavits of the accused’s de-facto wife Koreti Uelese, his son Atinae Lemuleu, his brother Onosai Talato and the Investigating Officer Sergeant Seve Musu Talai. As deposed to by Sergeant Talai, it is alleged that on the night of the 14th February 2017, the accused became intoxicated and was angry with his brother for reasons unknown. He then armed himself with a machete and allegedly struck at his brother. His brother fled in fear as did the accused’s wife. The accused came across his son, the deceased, and after a discussion with him, allegedly struck him with the machete. It is that blow that is alleged to have caused the alleged victim’s death. According to Sergeant Talai, the accused has allegedly admitted to the killing, presumably under a caution statement intended to be tendered during the course of the trial.
[7]	In his affidavit, Onosai Talato says that he was allegedly assaulted by the accused with a machete causing him injury on the day of the alleged murder. It is this allegation that presumably gives rise to the charge of attempt to cause injury pursuant to section 118 of the Act. 
[8]	In her affidavit, Koreti says that on the day of the alleged incident, she hid from the accused in fear and she said “the defendant assaulted our son with the machete which consequently led to his death.” Koreti and Atinae both depose to acts of domestic violence allegedly committed by the accused against them. Koreti, Atinae and Onosai all depose to being fearful of the accused and concerned for their safety and/or that of their family members.
[9]	In his affidavit, Sergeant Talai attaches the accused’s previous conviction record. Relevantly, his prior convictions include two convictions for common assault in 2009 and 2010, two convictions for assault occasioning actual bodily harm in 2006 and 2012 and one conviction for assault causing injury in February 2015. In 2009 and 2010, he was also convicted of being armed with a dangerous weapon. In 2010, he was further convicted of threatening words. He also has two convictions for theft and a conviction for possession of narcotics. The accused has a long history of offending including for violent offending and arming himself with dangerous weapons.
[10]	No affidavit has been filed on behalf of the accused in support of bail. At the end of bail submissions by both counsels, I was told by accused counsel that since being remanded in custody, the accused has met with his de-facto wife and son at Tafaigata Prison. Allegedly, following these meetings, these witnesses no longer fear the accused. Accused counsel then applied, in effect, to have these witnesses cross-examined on their affidavits at the end of the bail hearing. That application was denied as no notice was given to call the witnesses for the bail hearing, there was no evidence on behalf of the accused to support what was being said from the bar table and it would inevitably turn the bail hearing into a mini-trial which in all the circumstances of the bail application was inappropriate.
THE CRIMINAL PROCEDURE ACT 2016
[11]	The statutory framework for grant of bail is now governed by the CPA which commenced on 1 November 2016. The relevant CPA provisions below are drawn from corresponding provisions in the Bail Act 2000 (New Zealand) (“the Bail Act”), with minor modifications, but similar effect.  The relevant CPA provisions are as follows:
“98. Rules as to granting bail - (1) ……
(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.”
“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.
	…
101. Restriction on bail where certain previous convictions - (1) This section applies to a defendant aged 18 years or over who:
(a) has one or more previous convictions for an offence under paragraph (b) (whether those convictions were for the same offence or for different specified offences under that paragraph); and
(b) is charged with any of the following offences under the Crimes Act 2013 –
(i) sexual violation under section 52 or 53;
(ii) murder;
(iii) attempted murder;
(iv) manslaughter;
(v) any crimes against a person under any of sections 118 to 122;
(vi) using any firearm against law enforcement officer, etc under section 127;
(vii) commission of a crime with firearm under section 130;
(viii) robbery and burglary under sections 174 to 177.
(2) A defendant to whom this section applies must not be granted bail or allowed to go at large except:
(a) by order of a Judge of the Supreme Court or of the District Court; and
(b) the defendant satisfies the Judge that bail or remand at large should be granted.

(3) Without limiting subsection (2)(b), the defendant must, in particular, satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person.
(4) In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the Judge must take into account, as primary considerations, the need to protect:
(a) the safety of the public; or
(b) if appropriate, the safety of the victim or victims of the alleged offending.”
Approach to Bail Application:
[12]	The accused’s prior conviction record is not disputed by the accused. On the 16th February 2015, he was convicted of assault causing injury. This conviction was entered under section 119 of the Act. The conviction under section 119 and the charge of murder brings the accused within the scope of section 101 of the CPA. Section 101 is similar in terms to section 10 of the Bail Act.
[13]	In my view, consistent with the New Zealand approach under the Bail Act, the effect of sub-sections 101(2)(b), 101(3) and 101(4) of the CPA is to reverse the onus to the accused to satisfy the presiding judge that bail or remand at large should be granted. In G v Police [2003] 3 NZLR 244, Heath J considered corresponding provisions under the Bail Act involving an accused with prior convictions and stated:
“[16] Sections 10(4), 12(4), 13(1) and (2) and 14(2) of the Act, in varying circumstances, reverse the onus. In each case an onus is placed on an applicant (or appellant, in the case of s 14) to show cause why bail should be granted. Directed, as they are, to situations involving specified prior offending or where guilt has been established through a plea, verdict or decision, those provisions must be viewed as justifiable limitations, expressed by Parliament, on the principle that the Crown, ordinarily, bears the onus of establishing just cause for continued detention.”
[14]	The same rationale for the inclusion of sub-sections 101(2)(b), 101(3) and 101(4) in the CPA must also apply, namely, that these provisions are justifiable limitations expressed by the Samoan Parliament on the principle that ordinarily, the Prosecution bears the onus of establishing just cause for continued detention. 
[15]	In dealing with an accused captured by section 10 of the Bail Act, Heath J put the test as follows in terms of the New Zealand statutory schema:
“[17] Accordingly, G must satisfy me that bail ought to be granted. In order to satisfy me that bail is appropriate G must, in particular, satisfy me, on a balance of probabilities, that he will not, while on bail, commit any offence involving violence against, or cause danger to the safety of, any other person: s 10(5). Also, in weighing all other relevant factors, I am obliged as a primary consideration to have regard to the need to protect the safety of the public: s 10(6).
[18] The other factors which must be weighed are the relevant mandatory and discretionary factors to which s 8(1) and (2) of the Act refer.
[19] The focus of my inquiry is whether, having regard to the primary need to protect the safety of the public, the applicant for bail can satisfy me, on a balance of probabilities, that a remand on bail, on appropriate conditions, is warranted. G must, as part of that exercise, satisfy me, on a balance of probabilities, that he will not, while on bail, commit any offence involving violence against, or danger to the safety of, any other person.”
[16]	This test has continued to be applied in subsequent New Zealand cases (see for example: Glenn Mills v New Zealand Police, unreported judgment of Heath J, 20 November 2009, paragraph 13).  The test in G v Police (op. cit) was also treated positively by the New Zealand Court of Appeal in R v Keefe (CA 162/04, 22 July 2004). 
[17]	The reverse onus as encapsulated by section 10 of the Bail Act was earlier contained in similar terms in section 318(3) of the Crimes Act 1961 (New Zealand) which stated as follows:
‘No person to whom subsection (2) of this section applies shall be granted bail
or allowed to go at large unless the person satisfies the Judge on the balance
of probabilities that bail should be granted, and in particular (but without
limiting any other matters in respect of which that person must satisfy the
Judge under this subsection), that the person will not, while on bail or at large,
commit any offence involving violence against, or danger to the safety of, any
other person.’
[18]	In addressing the reverse onus under section 318 of the Crimes Act 1961 (New Zealand), now section 10 of the Bail Act, Henry J quoted from Saifiti v Commissioner of Police (1992) 7 CRNZ 695 at 698 (cited in Anderson v Police, New Zealand High Court, Unreported judgment of Chambers J, 20 October 1999) as follows:
‘The new legislation does place an onus on an applicant for bail which,
perhaps for good reason, is difficult to discharge. Under it, considerations
such as the likely duration of the period of remand pending trial, the
presumption of innocence, the strength or weakness of the Crown case and
even the likelihood of appearance at trial, may have no or little relevance to a
particular case.”
[19]	This excerpt has been referred to and applied under section 10 of the Bail Act (see for example: Reekers v Police, New Zealand High Court, Unreported judgment of Woodhouse J, 8 October 2008 at paragraph 52). 
[20]	As section 101 of the CPA applies, similar to the New Zealand position, the accused must therefore satisfy me that bail should be granted. To satisfy me that bail is appropriate, he must in particular satisfy me on a balance of probabilities that he will not, while on bail, commit any offence involving violence against, or cause danger to the safety of any other person (see: sub-sections 101(2)(b) and 101(3) of the CPA). Also in weighing up all other relevant factors, I must take into account, as primary considerations, the need to protect the safety of the public or, if appropriate, the safety of the victim or victims of the alleged offending (section 101(4) of the CPA). In determining whether or not to grant bail, the factors I need to also weigh up are those set out in section 99 of the CPA. 
DISCUSSION:
[21]	The start point of any application for bail is that a person who has pleaded not guilty must be presumed to be innocent of the charged offending until proven guilty according to the law (article 9(3), Constitution of the Independent State of Samoa 1960). It is however, in the terms discussed above, incumbent on the accused to satisfy me that bail should be granted.
[22]	The first difficulty for the accused is that bearing in mind that he bears the onus by virtue of section 101 of the CPA, he has proffered no evidence to support the grant of bail nor any evidence that supports the grounds set out in his application for bail or that addresses section 99 and sub-sections 101(2)(b), 101(3) and 101(4) of the CPA. The accused has not provided any evidential assurance that he will not while on bail commit any offence involving violence.
[23]	On the other hand, prosecution has filed four affidavits opposing bail. The affidavit of Sergeant Talai states that the accused has allegedly confessed to the killing of the deceased. He also attaches a prior conviction record that clearly demonstrates a history of violent offending and offending involving dangerous weapons, the most recent conviction for which was in February 2015 for assault causing injury.
[24]	In her affidavit, Koreti Uelese says that she has been the victim of the accused’s acts of domestic violence in the past. On the day of the alleged incident giving rise to the charges now before the Court, she was scared of him and hid from him. She, it seems, was a witness to the incident. She says the accused poses a risk to her safety and the safety of her children.
[25]	In his affidavit, the accused’s son Atinae also alleges that he has been the victim of the accused’s domestic violence. He believes that the accused is a risk to his safety and that of his mother.
[26]	The accused’s brother Onosai Talato alleges that he was attacked by the accused with a machete on the day of the offending. This presumably relates to information S374/17. He is fearful of the accused and believes the accused poses a high risk to the safety of his children and wife. He is a witness for these proceedings.
[27]	Based on the material before me and in the absence of any evidence on behalf of the accused, the accused has failed to satisfy me that bail should be granted. In particular, he has failed to satisfy me, on the balance of probabilities that he will not, while on bail, commit any offence involving violence against, or danger to the safety of any other person. In determining bail, my primary considerations are the need to protect the safety of the public and relevant also in this case, the safety of the victims of the alleged offending. In this respect, the accused has five (5) prior convictions for assaults, including actual bodily harm and causing injury. It is not clear whether any of these convictions were within a domestic relationship, however, both Koreti and Atinae allege under oath that they have been the subject of domestic violence perpetrated by the accused. Onosai, an alleged victim of the accused, says he was attacked by the accused with a machete. All three say they are fearful of him and that he is a safety risk. 
[28]	In reaching this conclusion, I bear in mind section 99 of the CPA and the very grave nature of the charge of murder with which the accused has been charged together with the seriousness of the punishment the accused is liable to if convicted. I am also of the view that the Prosecution case against the accused appears strong with at least two and perhaps three eye witnesses and an alleged admission on the evidence before the Court. He has previous convictions for assault and being armed with a dangerous weapon, similar to offences to that which he is now charged before this Court which also tends to show the accused character and past character. He has also had contact with Koreti Uelese and Atinae Lemuelu while in custody and through that contact, it was submitted that they are no longer in fear of the accused, contrary to what is contained in their affidavits. That contact also suggests a material risk of the accused interfering with potential witnesses involved in these proceedings. 
PUBLICATION:
[29]	Due to the particular facts of this case, the public and media interest it has drawn and the fact that it will be a trial before assessors drawn from our community, it is import to protect the accused’s right to a fair trial protected by article 9(1) of the Constitution. The publication of the surrounding facts alleged as set out in this Ruling may prejudice that right to a fair trial guaranteed by article 9(1). Accordingly, the only part of this ruling which may be published in news media, on the internet, or in any other publicly accessible database, until final disposition of the trial, is the fact that the accused applied for bail and that application for bail was declined.
CONCLUSION:
[30]	Accordingly, bail is denied. The accused is further ordered not to have any contact with prosecution witnesses and no further visitation from prosecution witnesses while the accused is in custody is permitted. 
[31]	As the Prosecution opposed bail, the prosecution should prepare and proceed to trial as soon as reasonably practicable so that the accused’s remand in custody is not unnecessarily lengthy.
Addendum to Ruling Delivered 4 April 2017.
The accused is remanded in custody and this matter is adjourned for mention at 10.00am on Monday 10 April 2017 in the Criminal Mentions list to set a hearing date.

[Addendum: The Accused proceeded to a defended hearing and was found guilty by unanimous decision of Assessors of manslaughter and being armed with a dangerous weapon. The Accused was sentenced on the 15th December 2017.]
JUSTICE CLARKE