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Police v Mapu [2023] WSSC 1 (30 January 2023)

IN THE SUREME COURT OF SAMOA
Police v Mapu [2023] WSSC 1 (30 January 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of section 115 of the Criminal Procedure Act 2016

BETWEEN:

P O L I C E

Prosecution/Respondent

AND:

AFUALO FAUMUI DARYL MAPU, male of Sapapalii and Nuu Fou, Samoa

Defendant/Applicant

Counsel: I. Atoa for Prosecution/Respondent
L. Su’a-Mailo for the Defendant/Applicant

Hearing: 15 December 2022

Ruling: 30 January 2023

RULING OF TUATAGALOA J

Proceedings

1. Following a defended hearing the defendant was found guilty on 2^nd September 2022 on the following charges:
   • Possession of narcotics namely methamphetamine in 5 clear sealed plastic bags weighing 1.6 grams; (sentenced to 1 year + 6 months)
   • Possession of utensils namely 2 glass pipes for the purposes of committing an offence; (sentenced to 5 months)
   • Possession of unlawful or illegal weapons, namely one 9mm pistol, one 22 pistol semi-automatic and one 357 magnum pistol revolver; (sentenced to 9 months)
   • Possession of unregistered firearms, namely one 12gauge shotgun break single action barrel and one 22 rifle semi-automatic; (sentenced to 3 months)
   • Possession of unlawful ammunitions, namely twenty-three live rounds 9mm; (sentenced to 9 months)
   • Possession of ammunitions without permit, namely four 22 live rounds caliber. (sentenced to 3 months)
2. The defendant prior to sentencing filed the following applications:
   • (i) Notice of Appeal against conviction (22 September 2022);
   • (ii) Motion for Stay of Sentence pending appeal (22 September 2022); and
   • (iii) Application for Bail (10 November 2022).
3. On 10 November 2022 the defendant was sentenced to serve 1 year and 6 months of concurrent sentences. He appeals against both the convictions and sentences.
4. The defendant was sentenced without having first dealt with the Motions for Stay of sentence and Bail pending appeal filed prior to sentencing.

Background

5. The background to these proceedings:^[1]
   • 27 – 30 June 2022: Hearing of the charges before Tuala-Warren J
   • 20 July 2022: Hearings of Submissions
   • 2 September 2022: Decision delivered; Defendant found guilty. Matter adjourned for sentencing on Friday, 14 October 2022
   • 22 September 2022: Defendant filed Notice of Appeal and Application for Stay of Sentence pending determination of appeal
   • 14 October 2022: Matter for sentencing called before Tuala-Warren J; sentencing was deferred for the Application for Stay to be dealt with first. Matter was then further adjourned to 19 October 2022 to hear the Application for Stay.
   • 19 October 2022: Matter was further adjourned to 10 November 2022 for sentencing and for the Court to determine the Application for Stay.
   • 10 November 2022: The defendant was sentenced to 1 year + 6 months by Tuala-Warren J.

The Applications (or Motions)

(i) The Motion for Stay

6. Despite the defendant being sentenced without the Court first dealing with the motion for stay that was filed prior to when the sentence was imposed, the law is very clear that the Motion for Stay and any proceeding filed subsequently cannot be invalidated except by order of the Supreme Court.
7. The Prosecution opposes the application for stay on the following grounds:
   • The application has no merit or standing as section 15 of the Judicature Act 2020 expressly provides that an appeal shall not operate as a stay;
   • There are no reasonable grounds provided to justify the stay of sentence except the reasons or the grounds are those to support the appeal;
   • The stay of sentence is an abuse of court process and will cause undue delay to the sentencing of this matter.
   • Section 63 of the Sentencing Act 2016 provides for an imprisonment sentence to be deferred for a period of not more than 3 months but upon humanitarian ground.
8. The relevant law to the application for stay is section 15 of the Judicature Act 2020:
   • “15. No stay of execution unless the Court orders:
   • The appeal shall not operate as a stay of execution or of proceedings under the decision appealed from except in so far as the Supreme Court or the Court of Appeal may order, and no intermediate act or proceedings shall be invalidated except so far as the Supreme Court may direct. “
9. The ‘stay’ in this context means a pause that prevents the court from imposing a judgment or sentence. The ‘execution’ means the ‘carrying out’ the sentence. The term ‘stay of execution’ in this context refers to any criminal sentence or court order. When a motion for stay is granted, it results in a “stay of execution” which prevents the fulfillment of the lower court ruling’s sentencing or other penalties while the appeal continues.
10. Section 15 is very clear that filing an appeal does not ‘stay’ the execution of any sentence or any proceedings which therefore means that a specific application seeking ‘stay’ must be filed. Such an application is an “intermediate act or proceedings” which according to section 15 remains valid until ruled invalid by the Supreme Court.

“....no intermediate act or proceedings shall be invalidated except as directed by the Supreme Court.”

11. In the circumstances of the present matter, two questions arise. The first is whether the motion for stay of sentence is still valid given that sentence has been imposed and the defendant is now serving his term. The second question is whether it be appropriate for a different judge other than the trial/sentencing judge or judge at first instance to consider the application for stay.
12. There is no Motion for Stay before the Court. The defendant did not file two separate Motions, that is, a Notice of Appeal and Motion for Stay. Instead, the Notice of Appeal and Motion for Stay of sentence were all in one document. Upon perusal, what it really is, is a Notice of Appeal in which one of the orders sought is to stay sentence until the appeal against conviction has been determined. Secondly, there are no reasonable grounds provided to justify the stay of sentence except the reasons or the grounds are those to support the appeal – error of law, unreasonable verdict and miscarriage of justice.
13. Procedurally, it would be the appropriate step for the motion for stay to have been dealt with first before sentence was imposed and secondly, for the motion to be dealt with by the trial/sentencing judge. This, did not happen even though the motion was filed some time before sentence was passed. It is not appropriate for another judge to deal with the motion for stay other than (in the present circumstances) the judge who presided over the trial and sentence.
14. The motion for stay however, can be filed with the Court of Appeal should the trial/sentencing judge take too long granting the stay or other extraordinary circumstances.
15. Given that the defendant has been sentenced without first dealing with the motion for stay, Counsel for the defendant now submits for the ‘stay’ to operate to stop the execution of the sentence imposed until the determination of the appeal. What Counsel for the defendant now seeks is the execution of sentence to be deferred until the appeal has been determined. Again, there is no such application properly filed before the Court pursuant to section 63 of the Sentencing Act 2016.
16. Section 63 provides for an imprisonment sentence to be deferred for a period of not more than 3 months but upon humanitarian ground. The defendant refers in his affidavit wanting to spend time with his children over Christmas falls short of a humanitarian ground intended by section 63.
17. The application for stay is denied for the following reasons:
    • (a) Sentence has been passed and defendant is now serving his term;
    • (b) According to section 15 of the Judicature Act 2020, filing an appeal does not operate to ‘stay’ the execution of a sentence or any proceeding;
    • (c) There was no Motion for Stay filed with grounds to support a ‘stay’ (only a Notice of Appeal); and
    • (d) It is procedurally appropriate for the trial/sentencing judge to deal or determine any applications for stay prior to sentencing being imposed.

(ii) Motion for Bail

18. Counsel for the defendant also filed a Motion for Bail pending the appeal on the day of sentencing, 10 November 2022. The bail application is premised on the following grounds:
    • (i) It is in the interest of justice to grant bail pending appeal;
    • (ii) The apparent strength of the grounds of appeal;
    • (iii) The length of the sentence that has been imposed;
    • (iv) The length of time that will pass before the appeal is heard. The appeal will be heard sometime in April 2023 and by that time the defendant would have been in custody for a period of five (5) months.
    • (v) Other considerations:
      • The defendant has 2 children;
      • The defendant has been a law abiding citizen prior to the offences he has been found guilty of;
      • The defendant has always abided by his bail conditions;
      • The defendant can offer sureties to the Court to guarantee his appearance.
      • Humanitarian ground of the Xmas approaching and the defendant wanting to spend it with his family particularly his children.
19. The prosecution opposes the application for bail pending sentence for the following reasons (of relevance):
    • (i) The defendant was beyond reasonable doubt found guilty on all charges against him;
    • (ii) The serious charge involving methamphetamine under law is maximum life imprisonment;
    • (iii) There is nothing exceptional in the circumstances which would require the defendant release from custody pending the determination of his appeal;
    • (iv) The grounds of appeal lack substance and strength.
    • (v) No error of law in the trial judge’s determination.
    • (vi) It is in the interest of justice that the defendant remains in Police custody pending the determination of his appeal.
20. Similar to section 15 of the Judicature Act 2020 is section 158 of CPA 2016 which provides “If, under a decision against which the defendant appeals, the defendant has been sentenced to imprisonment, the warrant of commitment to execute the sentence must be issued even though the notice of appeal has been given.” This means that filing a notice of appeal does not operate in favour of the defendant from serving the imprisonment term he or she has been sentenced to.
21. Given the circumstances of this application the question is whether I am the appropriate judge to hear the application? The simple answer is no.
22. Section 118 of CPA 2016 says that “the hearing and granting of bail to appellant and custody pending appeal must be heard and determined by the Judge who presided at the trial in the Court below or if the presiding judge is not available, by another Judge”. According to the submissions by Counsel for the defendant the presiding judge was available but did not first deal with the application as she had indicated prior to sentencing.
23. In any event, I will deal with the application as if the presiding judge was not available.

Should bail pending the appeal be granted?

24. The relevant law is section 115 of the Criminal Procedure Act 2016 (“CPA 2016”).
25. Section 115 identifies both the test and criteria to be applied when bail is sought pending appeal. Section 115(1) forbids the Court to grant bail “unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.” The appellant bears the onus of showing why bail should be granted.^[2]
26. The criteria, is set out in s115(3) of the CPA 2016:
    • 115. Bail pending appeal
    • ......
    • (3). When considering the interests of justice under subsection (1), the Court or appellate Court may instead of the considerations in section 99, take into account the following considerations:
    • (a) the apparent strength of the grounds of appeal;
    • (b) the length of the sentence that has been imposed on the appellant;
    • (c) the likely length of time that will pass before the appeal is heard;
    • (d) any other consideration that the Court considers relevant.
    • (Section 99 refers to factors relevant to decision as to bail.)
27. It is very rare for bail to be granted to a defendant after a conviction and a custodial sentence is imposed, pending determination of appeal. The approach in New Zealand has been that bail pending appeal was unusual and should only be granted in exceptional circumstances^[3] and Samoa has taken the same approach. The New Zealand Court of Appeal case of Ellis v R^[4]refer to the test for ‘exceptional circumstances’ as follows:
    • “Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.”
28. The test for exceptional circumstances above should be read as an elaboration or explanation to the s115(1) test of “interests of justice”.^[5]
29. The Court of Appeal in Stehlin v Police^[6] considered that circumstances in Samoa is different from that in New Zealand which justified a more liberal approach especially so when Samoa’s Court of Appeal only sat once a year at the time. Lord Cooke in Stehlin made the following observation on the issue of bail which I find to be still of relevance to our jurisdiction:
    • The grant of bail is still essentially a discretionary judicial decision normally for the Judge at first instance.
    • Matters to be taken into account include the likelihood or otherwise of the person convicted absconding – a matter which is usually, though not invariably, judges by the seriousness of the offence; the length of the sentence; whether there appear to be any substantial grounds of appeal; and the period expected to elapse before a Court of Appeal sits again. Those are not exhaustive, but they are the kind of considerations likely to arise and are to be borne in mind reaching a decision.
30. In determining the interests of justice (s115(1)), the Court must take into account the following matters in s115(3):

(a) The apparent strength of the grounds of appeal

31. In Faafua v Police^[7]bail pending appeal was denied after having considered the strength of appeal (not solid), and length of likely delay (not lengthy). In Police v Tuise^[8]bail pending the appeal was granted on the strength of appeal (assessor biasness). The case of Saifoloi v Police^[9] was an appeal case from the District Court to the Supreme Court again in that case bail pending appeal was granted on the ground of the strength of appeal (the law was wrongly applied).
32. The judges in the cases cited were either the presiding judges at first instance or on appellate court whom (in my opinion) would be most appropriately to offer views on the grounds of the appeal. This is also consistent with section 118 where the granting of bail and custody to appellant pending appeal must be heard and determined by the Judge who presided at the trial. This is not so at present.
33. I cannot and should not offer any views on the evidence because if I do I will be usurping the functions of the Court of Appeal to which I am not. It is the Court of Appeal that review the evidence and orders accordingly. Additionally, the grounds of appeal are related to factual findings made after hearing and seeing the witnesses to which I did not because I was not the trial judge. My issuing of an opinion on the strength of the appeal means that I will be issuing an opinion on the merits of the appeal. That, I think is entirely inappropriate.
34. I will now deal with (b) the length of the sentence that has been imposed on the appellant and (c) the likely length of time that will pass before the appeal is heard together.
35. What must be borne in mind is that the defendant after a defended hearing has been found ‘guilty’ beyond reasonable doubt. That decision currently stands until determination of the appellate court.
36. The length of the delay between the finding of guilt and hearing of the appeal is considered relevant although, in itself is not determinative of the success or failure of a stay application or for present purposes the bail application. Delay of itself is not sufficient. Actual prejudice by reason of the delay must be shown and is not presumed^[10]. The prejudice factor advanced by Counsel for the defendant is that the defendant would have served five months of his 1 year + 6 months’ sentence by the time the next Court of Appeal sitting in April 2023 and that if the appeal succeeds it would be a great injustice. For the reasons already said I cannot say as to the likelihood of the appeal succeeding or not. I also fail to see how having the defendant in custody serving his imprisonment term would prejudice the outcome of the appeal.
37. At the time of Stehlin in 1993 the Court of Appeal was only sitting once a year but still the Court ruled that a six-month time lapse was not unreasonable. Counsel for the defendant says that the Stehlin decision depends on the length of the sentence and strength of the appeal. Counsel for the defendant submits that the defendant would have served five months of his 1 year + 6 months’ sentence and would be a grave injustice. The defendant would still not have served half of his sentence.
38. Today, the Court of Appeal now regularly sits three times a year with the next sitting scheduled for April 2023. The time lapse for the present case will be about five months since the defendant was sentenced and about four months from the last Court of Appeal sitting in November 2022. The defendant would still not have served half of his sentence. I find that there is no unreasonable delay.

(d) Any other consideration that the Court considers relevant.

39. Counsel for the defendant submits that the exceptional circumstances of this particular case warrants consideration by the Court. Counsel refers to the delay of having this matter listed on the Court of Appeal sitting in November 2022 and prosecution playing a role in the delay. At the hearing of the submissions, it became clear that if Counsels involved had a clear understanding of the law, Counsels would have been able to expedite this matter and insist on these matters having been dealt with first and if not, according to the law and appropriately, be referred to the Court of Appeal sitting in November 2022.
40. In the same vein that I have rejected humanitarian grounds in the stay application in paragraph 17 the humanitarian ground or grounds also put forward in the application for bail is rejected. Furthermore, the application is for bail and not for deferment of sentence pursuant to section 63 where the ground of humanitarian is to be considered.
41. The grounds relevant are that the defendant of prior good character, he had abided by his bail conditions when released on bail therefore is a person of low security risk and not prone to abscond if released on bail pending appeal. These grounds were similarly considered pre-trial whereby the defendant was granted bail. The circumstances have changed and the defendant has been found guilty beyond reasonable doubt and given a custodial sentence. The defendant may have been a low security risk pre-trial and not prone to abscond but may now be. A risk the Court is not willing to take.
42. It is in the interest of justice that the defendant remains in custody or serve his sentence that he had been found guilty of after a defended hearing pending the appeal.

Conclusions

43. The Applications or Motions for Stay and Bail pending the appeal are dismissed.

JUSTICE TUATAGALOA

^[1] From the Amended Submissions in Support of Application for Stay, dated 14 December 2022. The background is not disputed by the Prosecutions.
^[2] Criminal Procedure Act 2016, s115(2)
^[3] Moanui v R (1984) 1 CRNZ 231 (HC); R v Watton (1978) 68 Cr App R 293 at 297
^[4] Ellis v R [1998] NZCA 233; [1998] 3 NZLR 555 (CA) at 560
^[5] ibid
^[6] Stehlin v Police [1993] WSCA 5
^[7] Faafua v Police [2010] WSSC 73 (18 June 2010)
^[8] Police v Tuise [2004] WSSC 17
^[9] Saifoloi v Police [2009] WSSC 45 (28 May 2009)
^[10] R v Westley (unreported) NSW Court of Appeal BC (6 August 2004)