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Police v Amosa [2025] WSSC 63 (8 April 2025)

IN THE SUPREME COURT OF SAMOA
Police v Amosa [2025] WSSC 63 (8 April 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

VENIASI AMOSA, male of Toamua & Auckland New Zealand.

Accused

Representation: MT Fesili for Prosecution

LQ Sauaga for the Defendant

Bail Variation Hearing: 3rd April 2025
Ruling: 8th April 2025

RULING ON BAIL APPLICATION

1. The accused faces two charges, one of possession of one ziplock bag containing 4 marijuana flower heads weighing 1.68 grams (“the marijuana”) at PFL Matautu-tai and second of the importation of the marijuana.

Background:

2. The accused trial is scheduled for hearing week commencing 15th September 2025. He seeks variation of his bail conditions so he can return to New Zealand to be with his children, return to work to support his family and “sort out his issue with his home as there is a likelihood of being evicted...”^[1]
3. The accused has filed two affidavits to support his bail variation application. I have also had regard to the accused’s wife’s affidavit originally filed in support of bail earlier. Prosecution have filed no affidavits.
4. There is very little information available to me to understand the factual allegations against the accused. The allegations however appear to be that while in Samoa, the accused through PFL attempted to bring into Samoa the marijuana.
5. The accused is a New Zealand citizen. Though neither he or his wife say so in their affidavits, the accused is also Samoan. According to his Pre-Sentence Report when he had originally entered his guilty plea (now vacated), the accused grew up in Toamua and moved to New Zealand after year 10. He works for Vendon Brinks Poultry and says he is the primary income earner for his family with 4 children. He says he and his family travel frequently to Samoa. He has a confirmed ticket to return to Samoa on Saturday 30th August 2025.
6. The accused has offered up to two sureties and a cash bond deposit of $5,000.00.
7. Prosecution opposes variation of bail on the grounds of:
   • the maximum penalty “clearly disqualifies the defendant from receiving the right of bail”;
   • the seriousness of the charges and the severity of the likely punishment;
   • uncertainty of whether the accused has prior convictions in New Zealand;
   • the strength of the case is compelling;
   • the risk of re-offending on bail and interfering with witnesses;
   • the evidence against the accused is “compelling” and increases the risk of absconding; and
   • there is a departure prohibition order against the accused.

Relevant Law:

8. An accused granted bail may apply for variation of bail conditions.^[2]
9. As I stated in Police v Timblique [2024] WSSC 88, section 111 does not set out the test to be applied by a Court when determining an application to vary bail conditions. The test however seems to me to be the same as that which applies when imposing bail conditions in the first place.^[3] In this context, the Court may impose such conditions as the Court considers reasonably necessary to ensure that an accused:^[4]
   • (a) appears in Court on the date to which the accused has been remanded; and
   • (b) does not interfere with any witness or any evidence against the defendant; and
   • (c) does not commit any offence while on bail; and
   • (d) that protects the community.

Discussion:

10. This is not a case as to whether to grant the accused bail or not. He has been granted bail. What he now seeks is a variation of those bail conditions to permit him to travel outside of the jurisdiction of this court, namely, to New Zealand. The granting of overseas bail is an indulgence on the part of the Court, even where a surety is given.^[5]
11. In terms of section 106(3) of the Criminal Procedure Act 2006, the primary issue concerning the accused is whether the present bail conditions are reasonably necessary to ensure that the accused re-appears in Court week commencing 15th September 2025 for hearing to which he has been remanded for trial. The primary concern is the flight risk the accused represents if he is permitted to leave Samoa.
12. A court can never guarantee that an accused granted bail will return for trial. As Davidson J of the New Zealand High Court said in Ahmad v Police:^[6]
    • “[35] The Court by terms of bail can never guarantee return in circumstances such as this, as it cannot assess with certainty the thinking of the accused, but rather must contemplate objectively what influences will be brought to bear should [the defendant] contemplate not returning to New Zealand, and what the Court knows of him and his history, relevant to this appeal.”
13. I am satisfied that the variation to bail should be granted, subject to surety and a meaningful bond. The accused is Samoan and he has strong family ties here. He grew up here. He travels into Samoa quite regularly and like almost every Samoan born Samoan, I expect he will always wish to return home – “E lele le toloa ae ma’au I le auvai.”. His New Zealand passport shows he has returned to Samoa in 2018, 2019, 2023, 2024 and 2025.
14. There is no evidence that he has any prior convictions. Samoa has an extradition treaty with New Zealand so that if he does fail to return, extradition is available. I accept however as Nelson J also said in Police v Sione [2020] WSSC 105 that the process of extradition can be lengthy, cumbersome, costly and complicated where the person to be extradited is a citizen of that country. Nevertheless, it remains the ultimate assurance that the accused can be brought back to face these charges.
15. Turning to address other grounds raised by prosecution, prosecution suggested an early date of trial. There is no guarantee that this can eventuate within the next 4 to 6 weeks. While prosecution also refers to the strength of the case against the accused and likely severity of the punishment as a basis to refuse the variation, I am not sure how the strength of the case that can be assessed without an affidavit in opposition to the grant of bail evidencing the strength of that case.
16. The likely severity of punishment if found guilty is also raised. However, imprisonment is not at all inevitable. No submissions or authorities were referred to me. However, in Police v Rockliffe [2018] WSSC 122, the defendant (a yachtie) was in possession of various marijuana substances weighing 2.15 grams, trace amounts of MDMA and utensils. Prosecution sought and the court imposed a non-custodial sentence. In Police v Westburg [2020] WSSC 39, the defendant entered Samoa with medicinal marijuana weighing 18.2 grams, a non-custodial sentence was imposed. In Police v Furlotti [2024] WSSC 62, a discharge without conviction was granted in what were somewhat exceptional circumstances specific to that case. In Police v Fealofani [2022] WSSC 20, the defendant was in possession of 1.9 grams of marijuana and a community-based sentence imposed.
17. This is not at all to say that a custodial sentence will not be imposed. The importation and possession of marijuana using shipping services in the way alleged will likely be a serious aggravating factor, and one that might incline a sentencing judge to conclude differently. That however is for another day and perhaps another judge.
18. Other grounds have been raised by prosecution. While the charges are serious, there is no evidence that the accused is a risk of re-offending, nor that he may interfere with prosecution witnesses.
19. Finally, the accused lives in New Zealand, works there and his family is there. His remaining in his home where his wife and 4 children live may be at risk if he remains in Samoa. It is also a long period of time between now and September for the accused to remain in Samoa, bearing in mind the sentencing approaches of the court to possession of this quantity of marijuana. The risk of flight can be further minimized by the payment of a cash bond into court together with acceptable sureties.

Result:

20. Accordingly, bail is to continue and the accused is to re-appear for hearing week commencing 15 September 2025 on the following conditions:
    • (i) the accused deposit the sum of ST$25,000.00 bail bond to the Registrar of the Court;
    • (ii) the accused provide two sureties to the satisfaction of the Registrar in the sum of $25,000.00 each;
    • (iii) the accused reside at 50 Barneys Farm Road Clendon Park Manukau, Auckland and may only change residential address after notification of change of residential address to the prosecution;
    • (iv) the accused return to Samoa on Saturday 30th August 2025 in accordance with his confirmed air ticket; and
    • (v) the accused is not to offend whilst on bail nor contact any prosecution witnesses.
21. I make the following further orders as to bail:
    • (i) the accused’s New Zealand passport is to remain in the custody of the Registrar of the Court and may only be released once the conditions in paragraph 19(i) and 19(ii) are satisfied by the accused, to the satisfaction of the Registrar; and
    • (ii) the accused is to continue to reside at Toamua and sign every Thursday at the Apia Police Station until he leaves Samoa after satisfying the varied bailed conditions in paragraph 19; and
    • (iii) on his return to Samoa on Saturday 30th August 2025, he is to surrender his passport to the Registrar of the Court by Monday 1st September 2025 and resume signing every Thursday at the Apia Police Station.

JUSTICE CLARKE

^[1] Notice of Motion for an Application to Vary Bal, 21^st March 2025.
^[2] See section 111, Criminal Procedure Act 2016.
^[3] See 106(1) and (3), Criminal Procedure Act 2016; Rewha v R [2015] NZHC 1959 at [11].
^[4] Section 106(3), Criminal Procedure Act 2016.
^[5] Jamie Patrick Biggs v R [2022] NZHC 1863 at [34].
^[6] [2015] NZHC 1708.