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Schmidt v Police [2025] WSSC 45 (23 May 2025)

IN THE SUPREME COURT OF SAMOA
Schmidt v Police [2025] WSSC 45 (23 May 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:
An application to Appeal pursuant to sections 116, 146, 148, 154 and 156 of the Criminal Procedure Act 2016.

BETWEEN:

LAAULI LEUATEA P SCHMIDT, of Alamagoto, Vaitele and Sasina, Savaii.

Appellant/Defendant

AND:

P O L I C E

Respondent/Informant

Counsel: L Strickland for Prosecution

M Lui for the Defendant

Hearing: 14 April 2025

Decision: 23 May 2025

DECISION OF TUATAGALOA J

1. This appeal challenges two bail conditions imposed by Judge Saaga of the District Court: (i) to surrender travel documents and (ii) signing at Faleata Police Post every Friday.
2. After hearing arguments, the Court reserved its decision. This is that decision.
3. The Court’s decision is in three parts:
   • (i) First Part - Background
   • (ii) Second Part - The time frame to appeal a bail decision from the District Court.
   • (iii) Third Part – The Appeal

PART I: Background

4. On 3 January 2025 the Appellant was charged (jointly with other defendants^[1]) with the following charges:
   • 3 counts of conspiracy or attempt to defeat the course of justice with the maximum penalty of 3 years imprisonment;^[2]
   • Conspiracy to fabricate evidence with the maximum penalty of 3 years imprisonment.^[3]
5. The Appellant also faces individual charges, including:
   • 5 counts of harassment using electronic means with maximum penalty of 5 years imprisonment;^[4]
   • 5 counts of making a false statement (criminal libel) with maximum penalty of 3 months imprisonment or to a fine not exceeding 175 penalty units;^[5]
   • 2 counts of insulting words with maximum penalty of 3 months imprisonment.^[6]
6. Upon being charged, the Appellant was released by the deputy registrar (remanding officer) and ordered to appear before the District Court on 4 February 2025. Despite police requesting^[7] bail conditions namely, to surrender passport and signing in at the police station —the deputy registrar (remanding officer) released the Appellant without these conditions.
7. On 4 February, the Prosecution sought an adjournment without plea to 7 February to finalise charges. Without prior notice to the appellant, they also requested for the following bail conditions:
   • (i) Surrender travel documents

(ii) Sign into a police station
(iii) No contact with police witnesses
(iv) Refrain from social media
(v) Not to reoffend

8. The appellant’s counsel did not object to the conditions except for the first two: surrendering of travel documents and signing in at a police station.
9. The appellant appeared on both days and entered a plea of not guilty to all charges on 7 February.
10. The hearing for joint charges is scheduled for 26 May – 27 June 2025 (five weeks). The hearing of the individual charges was initially to follow the joint charges but was further adjourned upon Ms Lui’s request. Due to the unavailability of overseas counsel, it will now take place over four weeks from 2 February to 27 February 2026.

PART II: Time frame to appeal bail decision from District Court.

11. Judge Saaga after hearing oral arguments from Counsels on 7 February immediately impose bail conditions with her written decision to follow. The written decision was made available on 21 February. The appeal was only filed when the written decision with reasons was made available. Ms. Lui submits that it was crucial for the Appellant to know the reasons upon which the decision is made to decide whether to appeal or not. I agree.
12. On 26 February 2025, the appellant when filed Notice of Appeal at the same time also filed an application seeking to extend the period of appeal beyond the 14 working days pursuant to sections 148 and 156.
13. Although, respondent made no objection to the granting of an extension of time, it is imperative that the court draws a decision on this issue where the law does not provide for any time frame or period to do something.
14. Sections 148 and 156 do not apply. Section 148 refers to Notice of Appeal in relation to conviction and/or sentence with a time frame of 14 days to file an appeal from the date of conviction or that of sentence. Section 156 allows the Supreme Court to extend such time. The appeal is neither a conviction nor a sentence.
15. The appeal is brought pursuant to section 116 of the Criminal Procedure Act 2016; which relevantly says:
    • “s116. Appeals from decision of District Courts relating to bail – (1)....
    • ............
    • (3) If, for any grant of bail to a defendant (whether before or after conviction):
    • (a) a District Court Judge, Faamasino Fesoasoani or a remand officer has imposed any condition of bail, or has refused to impose any condition of bail, or any particular condition of bail; or
    • (b) A District Court Judge, Faamasino Fesoasoani or a remand officer has on an application made under section 111, made an order varying or revoking any condition of bail or substituting or imposing any other condition of bail, or has refused to make the variation or revocation order,
    • the defendant or the informant may appeal to the Supreme Court against the imposition of that condition of bail or, as the case may be, against that refusal or against the decision in respect of that application.
    • ...........
    • (5) An appeal under this section is by way of re-hearing.”
16. There is no time limitation provided for filing an appeal relating to bail from the District Court to the Supreme Court. Given the absence of express provision in the Criminal Procedure Act 2016 (CPA), the Court defers to the Acts Interpretation Act 2015 cited:
    • “An Act to provide the principles and rules for interpretation of and general definitions for Acts, to promote consistency in the language and form in Acts and for related purposes.”^[8]
17. The Acts Interpretation Act (AIA) at section 47 provides:
    
    • “47. Time not specified – (1) If something must or may be done and no time is provided for doing the thing, the must or may be done as soon as possible or practicable and as often as needed.
    • (2) If something is required to be done, the obligation to do the thing continues until the thing is done even if:
      • (a) the thing is required to be done within a particular period or before a particular time, and the period has ended, or the time has passed; or
      • (b) a person has been convicted of an offence for failing to do the thing.
    • (3) If a court or a person is empowered by an Act to extend the period of time within which an act or thing is required or permitted to be done or taken, the power may be exercised by the court or person even if the period of time has expired when the power is so exercised.
18. Section 47 therefore says that an appeal must be filed as soon as possible or practicable where there is no time frame or period provided to file an appeal. In the present matter an appeal filed pursuant to section 116 falls within section 47 of AIA.
19. I find favour in the interpretation of the words as soon as possible or practicable in the following New Zealand cases:
    • The New Zealand Court of Appeal in The Queen v Whareumu unreported (12 December 2000) stated:
      • “The phrase “as soon as possible or practicable” is to be interpreted to read as soon as reasonably possible.”
    • The case of Tahitangatatarei v R [2013] NZCA 293 where the Court at [28] says:
      • “We see no need for the Courts to interpret the words in s45(3)(a) “as soon as practicable”. They are ordinary, readily understood words. It is best that they be left unvarnished, to be applied in the circumstances of each case.”
    • Accordingly, the New Zealand Supreme Court in discussing the use of this phrase in the legal context in relation to when notice can be given in State Insurance General Manager v Titahi Bay Panel Beaters (10 November 1977) said:
      • “Coming then, to the test to be applied: the condition is not that notice be given as a soon as physically possible ignoring all other factors. It is that it be given as soon as possible in all the circumstances.”
20. The primary consideration in determining whether to grant an extension is the overarching principle of justice, a well-established and long -standing standard. Relevant considerations assisting in that inquiry are the length of the delay, its reasoning, the conduct of the parties involved, the extent of prejudice caused by the delay, and the prospective merits of the appeal.^[9]
21. The appeal was filed five (5) days after the written decision became available, making it as timely as practicable. Furthermore, the prosecution agrees that the delay has caused no prejudice.
22. Counsel for the Appellant is of the understanding that ‘remanded at liberty’ constitutes a form of bail, a position affirmed when questioned. I disagree.
23. I first address whether "released at large" is, in fact, a form of bail or whether it is distinct. This distinction is crucial, as it provides legal clarity and ensures consistency in the handling of bail matters. A precise definition will aid judicial proceedings and establish a clearer framework for future applications.

Release at Large v Bail

24. The term ’released at large’, as referenced in the bail provisions of CPA 2016 is often taken to mean the same as ‘remanded at liberty’.
25. The relevant provisions of CPA 2016 state:
    • Section 95(a): A defendant who has been arrested and brought before a remanding officer may be released at large, granted bail, or remanded in custody:
      • “95. Powers on adjournment – When:
      • (a) a defendant who has been arrested or detained under a law is brought before a Court or a remanding officer for the purpose of bail; or
      • (b) a hearing is adjourned, and the defendant is liable on conviction to a sentence of imprisonment,
      • the defendant may be released at large or on bail or remanded in custody.”
    • Section 101 further distinguishes between bail and release at large.
26. These provisions do not equate “release at large” with “release on bail”. Rather, they established that being released at large (or remanded at liberty) is legally distinct from bail. The distinction is clear from the statutory language.
27. In the present matter, the defendant was initially released at large to appear for first mention in Court on 4 February, which he did. On the same day the prosecution sought bail conditions, which were subsequently granted. The imposition of conditions effectively transitioned the appellant’s status from “at large” to being “on bail.”
28. Due process in this scenario typically requires the defendant to seek a variation of bail^[10] before filing an appeal. However, section 116(3) of CPA 2016 allows a defendant to appeal a bail decision with or without first applying for bail variation. The appellant is taken to have exercised the latter.
29. I now turn to consider the appeal.

PART III: The Appeal

Decision under appeal

30. After hearing oral arguments from both parties, Judge Saaga imposed the following bail conditions:
    • (i) The appellant must surrender all travel documents to the Court Registrar, to be held until final disposal of the matter.
    • (ii) The appellant must report to Faleata Police Station every Friday before 12noon.
    • (iii) The appellant is prohibited from contacting police witnesses.
    • (iv) The appellant must refrain from making any comments on social media regarding the case.
    • (v) The appellant must not re-offend.
31. In her written decision, Judge Saaga identified the following relevant consideration:

• The appellant is not bailable as of right but at the discretion of the Court.^[11]
• The charges against the appellant are serious in nature [13];
• The bail conditions proposed by the prosecution are standard conditions imposed on defendants remanded on bail at the Court’s discretion [13];
• The appellant’s co-defendants have been remanded on bail under similar conditions [14];
• Like the co-defendants - who have previously applied for and been granted bail variation – the appellant can similarly apply for a variation of bail conditions to travel when required [16];
• The appellant’s prominence and social status in society were also taken into account.

The Grounds of Appeal

32. The appeal is based on the following grounds:
    • (A) Her Honour failed to consider sections 99 and 106 of CPA 2016;
    • (B) Her Honour failed to consider the defendant’s constitutional right to freedom of movement;
    • (C) Her Honour failed to consider that every defendant must be assessed in their own circumstances when considering bail.
    • (D) Her Honour failed to consider the unique circumstances of the defendant that supported the fact that he was not a flight risk nor at risk of absconding or not being found by police or not appearing for his hearing.
    • (E) Her Honour failed to consider the fact that there were already various precedents in her Court that allowed defendants to be bailed at liberty.
33. The Appellant in support of the appeal deposed that:^[12]
    • He has dedicated his career to public service, representing his constituency as a Member of Parliament for most of his adult life and intends to contest in the 2026 general elections.
    • He is committed to clearing his name by defending the charges in court.
    • He has deep community ties, including ownership of several properties and businesses.
    • He has lived in Samoa his entire life.
    • As leader of the FAST Political Party, he is required to travel overseas periodically to meet party supporters and voters in preparation for the 2026 general elections 2026
    • FAST Party will conduct nationwide Roadshows, requiring travel across all 51 constituencies over several months.

Opposition by Respondent (Police)

34. The Respondent oppose the application on the grounds that:
    • (A) The bail conditions imposed are within sound judicial discretion of the Court;
    • (B) The matters considered by the Judge were relevant considerations of the bail conditions imposed;
    • (C) The Judge considered all relevant factors; and
    • (D) The Judge did not err in law and/or fact.

The relevant law and principles

35. An appeal pursuant to section 116 of the Criminal Procedure Act 2016 (CPA) is conducted by way of rehearing (s116(5)), meaning that the appellate court must independently assess whether the original decision was wrong. In doing so, the appellate court examines the primary considerations that led the District Court Judge to impose the two bail conditions challenged in appeal following the 4 February application.
36. The modern approach of the Samoan Courts in handling bail applications is now well established.^[13] This approach follows a two-stage process as in section 99 of CPA 2016:
    • First stage (mandatory considerations): Encompasses section 99 (a), (b), (d) and (k).
    • Second stage (discretionary considerations): Covers the remaining provisions of section 99.
37. The fundamental question under section 99 is whether there is just cause for the defendant to be remanded in custody or for continue detention. In this case, the prosecution did not seek custody or continue detention, as the appellant was already remanded at liberty. Instead, the prosecution sought for the appellant to be remanded on bail, thereby changing his status from liberty to bail. The applicable law in this scenario is section 106.
38. Section 106(1) stipulates that a defendant granted bail must be released under the condition that they personally attend (a) at the time and place of the adjourned hearing; or (b) at any subsequent hearing during the course of the proceedings.
39. The mandatory risk factors under section 99 correspond to the considerations under section 106(3), which allow the court to impose conditions deemed reasonably necessary to ensure the appellant’s attendance in court while released on bail. The court in the exercise of its discretion under s106(3) may reference factors in s99(c), (e) – (k) where relevant.
40. To ensure the defendant’s attendance at future court hearings, the court may impose the following conditions:
    • (i) Reporting to Police at an assigned time/place (s106(2));
    • (ii) Impose such conditions as the Court considers reasonably necessary (for present purposes) to ensure court attendance (s106(3)(a));
    • (iii) Requirement of a financial deposit, obligation in a bond, guarantee or surety either by the defendant or another person (s106(4)).
41. The reporting condition under s106(2) can be imposed separately from those under section 106(3). However, under the overall framework of s106 schema, all conditions fall within judge’s discretion to ensure compliance with bail terms.
42. The appellant has the onus of persuading the appellate court to reach a different conclusion by identifying the errors or deficiencies in the judgment under appeal.^[14]
43. The Supreme Court (appellate court) pursuant to section 117(3) CPA may vary, revoke, substitute or impose any other bail condition or conditions.

Submissions

Appellant’s submissions

44. The appellant argues that the District Court Judge failed to properly assess his individual circumstances when deciding bail. Instead, the Judge prioritized consistency with the co-defendants' bail conditions. This, the appellant contends, is contrary to the legal requirement that each defendant be considered on their own merits. The appellant’s unique personal and professional background indicated he was neither a flight risk nor likely to abscond, evade police, or fail to appear in court.
45. These unique circumstances include the appellant’s 18 years as a Member of Parliament and his role as leader of the FAST political party. With the general elections scheduled for April 2026, he is actively involved in campaigning, both domestically and abroad. Additionally, the appellant has lived his entire life in Samoa, holds significant business and financial interests there, and owns several properties. In his affidavit, he confirms his intention to contest the upcoming election.
46. The appellant further submits that the Judge wrongly inferred that his objection to the bail conditions stemmed from his societal status. Crucially, the appellant argues the Judge failed to give sufficient weight to his constitutional right to freedom of movement.

Respondent’s submissions

47. The respondent argues that the two contested bail conditions fall within the Judge’s judicial discretion and align with standard practices in both the District and Supreme Courts. The prosecution routinely requests such conditions, and precedent supports this notwithstanding ‘permanency, stability and direct ties to Samoa through citizenship, employment, family and assets in Samoa’.^[15]
48. The respondent warns that revoking these conditions could set a precedent, encouraging other defendants in similar positions to seek removal of their bail conditions, potentially overwhelming the courts.

Analysis

49. While all defendants are presumed innocent until proven guilty, bail decisions are not about guilt but about whether the defendant should remain at liberty pending trial.^[16] Initially, the appellant was at liberty; conditions were added later and are now under appeal.
50. Bail decisions are made at the Judge’s discretion. While there is no limit on the types of conditions that may be imposed, such conditions must strike a balance between the defendant’s right to liberty and the need to manage potential risks to the judicial process.^[17] No single factor is decisive.^[18]The condition must have a reasonable connection to the risk it aims to mitigate—namely, the risk of non-appearance.

Are the two bail conditions reasonably necessary in the circumstances?

51. The core issue is whether the two conditions are reasonably necessary to ensure the appellant appears in court. Whether such a risk exists requires proper inference to be drawn from proved facts but not to engage in speculation or guesswork.
52. The prosecution justified the conditions based on:[19]
    • Consistency with co-defendants’ and bail decisions of the court;
    • Seriousness of the charges;
    • Public interest in the case;
    • The appellant’s position of influence.
53. It is for the appellant to persuade the appellate court that the decision to impose the two conditions was factually and legally flawed. Bail conditions cannot be justified if no actual risk is identified.
54. The appellant submits that the District Court Judge failed to consider that every defendant must be assessed in their own circumstances instead the Judge considered that consistency with the co-defendants' bail conditions took precedence over the consideration of the appellant’s own individual circumstances as required by law. In particular, the unique circumstances of the appellant that supported the fact that he was not a flight risk nor at risk of absconding or not being found by police or not appearing for his hearing.
55. The appellant emphasizes his role as a long-standing Member of Parliament, party leader, and candidate in the 2026 election. He has deep personal and professional ties to Samoa.
56. The respondent submits that the Judge properly exercised discretion, having considered all relevant factors such as the seriousness of the charges and the personal circumstances of the appellant.
57. Each defendant must be assessed based on their own circumstances. Not every defendant that comes before the Court is the same in personal circumstances, the charges they are charged with and the circumstances of their offending. As in sentencing each defendant is sentenced according to the peculiar circumstances of his offending. The same principle applies here. This also addresses the "floodgates" concern raised by the respondent.
58. However, the Judge’s decision at [17] emphasized consistency with co-defendants and the appellant’s societal status:
    • “To continue to remand the Defendant at liberty and impose lesser restrictive bail condition on the Defendant on the basis of his prominence and status in society is creating a dangerous precedent of according to liberty to prominent members of society upon being charged at a disadvantage to the less affluent and uninfluential ordinary members of society. Such a decision will also weigh unfavourably against the co-defendants who have been charged with the same offences but have been imposed similar bail conditions and who have for a year endured the arduous task of compliance with the bail conditions imposed on them by the Court.”
59. The Judge also cited the seriousness of the charges (carrying penalties of three years and over). Serious charges alone do not prove a real risk of absconding. Bail is now regularly granted to persons charged with serious offences, and so gravity of the offence is not of itself enough to justify a conclusion that there is a real and significant risk of the appellant absconding and not answering to bail. Of relevance would be the strength of the prosecution case against the appellant but there is no reference for this before the court.
60. The respondent provided proof of the appellant holding two passports - Samoan and New Zealand; both current. Dual citizenship does not, by itself, indicate a risk of flight. Additional factors, such as having lived and worked in New Zealand and owning a house or property are necessary to establish such a risk. There is none before the court other than the appellant’s business and personal ties to this community.
61. Relevant factors like prior bail breaches or previous convictions are absent. Imposing bail conditions merely to align with the bail conditions of the co-defendants is not a ground under the law.
62. The appellant’s hearings are scheduled for May 2025 and February 2026. Of relevance is the fact that both hearings take place before the April 2026 general elections the appellant is contesting. The risk of him absconding before the elections is very minimal.
63. According to his affidavit, the appellant has lived all his life in Samoa, owns property, runs a business and has no known intention of fleeing. He affirms his commitment to defending the charges to protect his political career and reputation. These facts suggest a low risk of absconding or non-appearance.
64. There is no evidence justifying an inference that the appellant is likely to flee making it reasonably necessary for the two conditions to be imposed. I find no increased risk of non-appearance if the two bail conditions (passport surrender and police reporting) are revoked.

Conclusion

65. I am persuaded as to the bona fides of this appeal and that the two contested bail conditions are not reasonably necessary under the circumstances.
66. The two bail conditions of surrendering passport and reporting to Police are revoked.

JUSTICE TUATAGALOA

^[1] Other defendants were charged in February 2024.
^[2] Crimes Act 2013, ss141 & 33
^[3] Crimes Act 2013, ss140,33 & 38
^[4] Crimes Act 2013, s219
^[5] Crimes Act 2013, s117(A)
^[6] Police Offences Ordinance 1961, s4(g)
^[7] Criminal Procedure Act 2016, s95(a) - The Court Registrars have authority as remanding officers to release at large or on bail or remand in custody a person arrested or detained.
^[8] The Acts Interpretation Act applies to all Acts, and the construction of their words or expressions, enacted before or after this Act, s2
^[9] My Noodle Ltd v Queenstown – Lakes District Council [2009] NZCA 224 was re-stated in Robertson v Gilbert [2010] NZCA 429 at [24]
^[10] Criminal Procedure Act 2016, s111
^[11] Criminal Procedure Act 2016, s98(4) - The defendant is charged with multiple charges, four of which are offences with maximum imprisonment terms of 3 years or more.

^[12] Affidavit of Laauli Leuatea Polataivao Fosi Schmidt dated 27 March 2025
^[13] ibid
^[14] see Taipeti v R [2018] NZCA 56 at [62] – [68]
^[15] The cases referred to are where the defendants are remanded in custody, different from the present matter as the appellant was remanded at liberty before bail was sought. The test is reasonably necessary not whether there is just cause.

^[16]R v Lindsay James Tawairua Wilson [2003] NZCA 3, para [25], delivered by Elias CJ referred to in Lam v Police [2018] WSSC 119 (4 Dec 2018).
^[17] See R v Keefe CA162/04, 22 July 2004 a New Zealand Court of Appeal referred to by Justice Clarke in Police v Timblique [2024] WSSC 88 (20 September 2024)

^[18] Such factors as in s99(c), (e) - (k) of Criminal Procedure Act 2016

^[19] The grounds to be those of the respondent were provided in the appellant’s submissions and were not objected to by the respondent.