IN THE SUPREME COURT OF SAMOA
Police v Mackenzie [2025] WSSC 7 (1 April 2025)

Case name: 	Police v Mackenzie	
		
Citation: 	[2025] WSSC 7	
		
Decision date: 	01 April 2025	
		
Parties: 	POLICE (Informant) and RODERICK IGNATIUS MACKENZIE, male of Lotopa and American Samoa (Defendant) 	
		
Hearing date(s): 	18 & 19 March 2025	
		
File number(s): 	2025-00401/SC/CR/UP	
		
Jurisdiction: 	Supreme Court – CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tuatagaloa	
		
On appeal from:		
		
Order:	The application to leave jurisdiction is dismissed. The defendant is remanded on the same bail conditions to re-appear in the week commencing 1st September 2025 for trial	
		
Representation: 	L. Strickland for Prosecution
L Su’a-Mailo for the Defendant	
		
Catchwords: 	Variation of bail conditions - Application to leave jurisdiction.	
		
Words and phrases:		
		
Legislation cited:	Customs Act 2014
Narcotics Act 1967	
		
Cases cited:	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);
Police v Sione [2020] WSSC 105 (22 July 2020);
R v Lindsay James Tawairua Wilson [2003] NZCA 3 referred to in Lam v Police [2018] WSSC 119 (4 Dec 2018).

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

RODERICK IGNATIUS MACKENZIE, of Lotopa and American Samoa

Defendant

Counsel:	L Strickland for Prosecution
		L Su’a-Mailo for the Defendant 

Hearing: 	18 & 19 March 2025

Ruling:	1 April 2025	

RULING  OF  TUATAGALOA J
(Application to leave jurisdiction)
1. 	The Defendant on 28 January 2025 was jointly charged with two others for various offences under the Narcotics Act 1967 and the Customs Act 2014. The various charges stem from a 20ft container from the United States of America which allegedly shipped methamphetamine weighing at 9548 grams (or 9.5kg) concealed in packages of life savers mints. The street value is estimated to be $9.5million. 
2. 	On 24 February 2025 the defendant (with co-defendants) pleaded not guilty and trial is scheduled for the week commencing 01 September 2025. The defendant (with co-defendants) has been granted bail pending trial subject to the following conditions: 
•	Surrender of travel document(s) to the Registrar of the Court to be held pending final disposal of this matter; 
•	To reside with family at Lotopa; 
•	To report or sign in at Faleata Police every Tuesdays and Fridays; and
•	Prosecution to impose a departure prohibition order against the defendant. 
The Application for variation of bail to leave the jurisdiction
3. 	The defendant now seeks variation of his bail to allow for him to travel to American Samoa for medical checks. Counsel for the defendant submits that the defendant’s medical condition requires for him to travel to American Samoa for regular check-ups. In support of the application are various affidavits from the defendant, his wife, his priest and two sureties.
4. 	The defendant by affidavit provides as assurance of his return the following:
•	Has sworn to abide by any conditions imposed and to appear when his matter is called for hearing;
•	Has provided two sureties who are prepared to pay any amount imposed by the Court should he not abide by any conditions given whereby he is allowed to leave the jurisdiction;
•	Has provided confirmation of his strong ties to Samoa – he is a shareholder of the duly registered RJ Mackenzie Company Limited where his two children operate the family business trading under the name R&J Mackenzie;
•	That he owns freehold properties and owns a house at Moamoa; 
•	He only holds a Samoan passport; and
•	Has provided a travel itinerary to depart Samoa on 1st April returning on 30th April.
5. 	The defendant is one of the signatories to a company OD facility with one of the local banks. The company loan is secured on various land properties solely owned by the defendant.
Opposition by Police
6. 	The Police oppose the application on the ground that the flight risk is very real. Despite travelling and holding only a Samoan passport, the defendant is a permanent resident of American Samoa and the risk of him not returning to Samoa and being able to travel to other jurisdictions beyond American Samoa is a real possibility. Furthermore, the Police highlighted that Samoa does not have any jurisdiction over American Samoa and has no extradition arrangement with American Samoa or the United States of America and that such a process can be lengthy cumbersome and costly. 
7. 	The Police emphasised the seriousness of the charges and the fact this defendant is awaiting trial alleged to be involved in the biggest drug bust in Samoa.
8. 	The opposition by Police is supported by the affidavit of Inspector Solomona Ralph Aimaasu dated 17 March 2025.
The law
9. 	A defendant granted bail may apply for variation of bail conditions pursuant to section 111 of the Criminal Procedure Act 2016 which relevantly provides:
	“111. Variation of conditions of bail - (1) If the defendant has been granted bail, the Court may, on the application of the defendant or the informant, make an order varying or revoking any condition of bail or substituting or imposing any other condition of bail.”
10. 	The granting of bail or variation of bail is by judicial discretion even where there is confirmation of the defendant’s strong ties with Samoa or surety given. The Court exercised its discretion to balance the rights of the defendant with the need to ensure accountability and prevent potential risks, such as absconding and never returns.
Discussion
11. 	While the principles considered for granting bail and applications to leave the jurisdiction may overlap, the two have distinct focuses and the court may weigh certain factors differently. In the present application the court place weight on the following:
Medical condition
12. 	The main reason for the defendant’s application to leave the jurisdiction is due to his medical condition. 
13. 	The defendant suffered a mild stroke in Samoa in 2022. However, the defendant quickly recovered and his condition was managed by medication. Due to the lack of ‘investigative imaging’ at the National Hospital to ascertain the cause and nature of the stroke, Dr Adams in his report dated 15 May 22 diagnosed the defendant to be stable and safe to travel to American Samoa for an urgent CT scan of the brain.  However, the defendant was still in Samoa on 31 May 2022 for he was seen by Dr Adams who confirmed the defendant to being back “to his normal self and all his vital signs were quite normal and was fit to travel’. In the same report Dr Adams refers to an appointment he made at the National Hospital for a CT scan before the defendant leaves for Pago. 
14. 	Dr Kolone who practices in American Samoa, in his report dated 29 January 2025 confirms that the defendant’s medical conditions are chronic with three-quarters of them being cardiac related and is at high risk of a heart attack if not regularly monitored every two months. However, in the course of hearing the application another report dated 17 March 2025 from Dr Kolone stated that the defendant exhibited anxiety disorders that could affect his heart and that he now requires monthly checks. It seems Dr Kolone was able to diagnose the defendant with symptoms of ‘anxiety disorders’ without the defendant’s physical presence before him. 
15. 	It seems that in 2022 there was no urgency for the defendant to go to Pago for he was still in Samoa two months after Dr Adams initial report requiring him to urgently travel to Pago for a CT scan. Furthermore, Dr Adams report on 31 May 2022 confirms the availability of ‘investigative imaging’ at the National Hospital by way of a CT scan as opposed to his report dated 15 May 2022. His condition according to Dr Adams can be managed by medication. 
16. 	Dr Kolone’s reports do not say that the defendant’s condition cannot be managed and monitored locally but only by the doctors in Pago and if so, why? The defendant in his affidavits only says that he is comfortable with Dr Kolone and his cardiologist, Dr Jerry Kena to carry out his routine follow-ups and that he has taken out a medical insurance to pay for any of his medical bills. There is no report from Dr Jerry Kena as to the status and condition of the defendant’s heart and whether or not the defendant’s heart can be monitored and routinely checked by local cardiologists such as Dr Satupaitea Viali and Dr Limbo Fagaese. Dr Kolone also does not say in his report as to whether cardiologist, Dr Jerry Kena is based in American Samoa or a visiting specialist and if so, how often he visits American Samoa. 
17. 	The defendant’s wife who is his primary caregiver lives in Pago (confirmed by his wife in her affidavit). She manages his medication, his diet and monitors his health. The defendant has two older children living in Samoa who can care for him or arrange and pay for someone to be a caregiver while he remains in the country until the matter against the defendant has been fully dealt with. Alternatively, the wife can move to Samoa temporarily.
18. 	I am not persuaded that the defendant’s medical conditions can only be managed and monitored by the medical profession in American Samoa and not locally. There is not enough information to persuade the court to grant the application to leave the jurisdiction for medical reasons.
Flight Risk
19. 	The defendant, although he only travels on a Samoan passport, is a permanent resident of American Samoa. As such, the defendant may easily access services available in American Samoa and presumably may also easily be granted a visa to the United States. I am aware that a visa to the United States if granted is usually valid for a period of 5 -10 years. Obviously the defendant had a U.S. visa that enabled him to travel to Hawaii and the mainland (USA) previously.  There is nothing to say that he cannot access or apply for a U.S. visa. 
20. 	According to his travel records the defendant had not travelled to Samoa from American Samoa since 2023 until recently on 28th January 2025. The defendant says in his affidavit that the reason why he travelled to Samoa was to find out why the container had not been released and that his daughter who is responsible for clearing the business containers from the wharf was in America. The very same container found to contain narcotics. It also shows that the defendant is actively involved with the family business. 
21. 	The Police have provided confirmation of the defendant’s travel history which showed that he had travelled to the United States and Hawaii. There was also confirmation by the Police that the defendant had failed to board some of these return flights to American Samoa and/or to Samoa.
22. 	This is the biggest drug bust so far in Samoa with an estimated street value of $9.5million. The penalties for the offences the defendant is charged with under the Customs Act 2014 range from monetary fines of $300,000 - $500,00 and/or maximum imprisonment term of 6 years and under the Narcotics Act 1967 with maximum imprisonment from 14 years to life imprisonment. There is no doubting the seriousness of the charges such as in the present case.
23. 	The fact that there is no extradition agreement between Samoa and American Samoa or the United States makes the flight risk too real. Any conditions imposed by the Court will not have any legal status or can be legally enforced in American Samoa and the defendant is not obliged to abide by it once he leaves Samoa for American Samoa. As observed by Nelson J in Police v Sione where extradition exists between two countries “the process can be lengthy cumbersome and costly. To that must be added the further fact that additional hurdles are usually faced when seeking to extradite citizens and permanent residents of a country as opposed to non-citizens and non-residents”. 
24. 	Although, that the defendant may be able to pay any surety bond and his sureties willing to guarantee payment of any bond imposed by the Court albeit there is no confirmation of their ability to pay, I am of the view that no amount of surety bond whether in cash form or otherwise overcomes the risks that are apparent and inherent in allowing the defendant at this point in time to travel to American Samoa even if just for a short period. 
25. 	Whilst it is correct that a person charged with an offence is presumed innocent until proved guilty, it must be borne in mind that an application for bail or variation of bail is not concerned with the innocence or guilt of a defendant. A bail application is concerned with the question of whether a defendant should be at liberty pending the determination of guilt or innocence while application to leave jurisdiction is whether there is a risk that defendant will fail to appear in court if he is allowed to leave. The court finds that there is a real risk.  
26. 	Although, the defendant’s application to leave the jurisdiction is for medical checks the primary concern is the flight risk and the impact it would have on the proceedings. His current application does not say when his doctor’s appointment will be and why he needs a whole month to go for his medical if it’s only a regular check. Even if I am persuaded as to the bona fides of his application for his medical checks (to which I’m not), the flight risk is too real. 
27. 	The application to leave jurisdiction is dismissed. The defendant is remanded on the same bail conditions to re-appear in the week commencing 1st September 2025 for trial.

JUSTICE TUATAGALOA