Court
Safety, Collusion & Mistreatment Key Factors in Samuelu Sua’s Bail Application
By Lagi Keresoma/
Apia, Samoa – 19 February 2024: In the three hour long hearing of the bail application for high profile witness Samuelu (aka) Sam Fanaea Su’a last week, defence focused on police’s alleged mistreatment and collusion to ensure charges against him are proven.
Sam and Sivai had already made a statement to police regarding the unresolved three year old hit and run incident that killed a young university student at Vaitele in April 2021.
In his presentation, their lawyer Fetu Lagaaia was direct in saying that his client is not only being threatened by Tanumalala prison inmates but also police “mistreatment and collusion” tactics to intimidate his client.
The defendants have yet to enter pleas to the defamation charges against them but are currently under police custody to await their appearance in court on Tuesday 20 February 2024. But since the threats by inmates of his clients safety, Lagaaia applied for bail.
Integrity of the police investigation
Lagaaia questioned the integrity of the police investigation and the police attitude towards Sam then explained the sequence of events on the day Sam was brought into the police station to be cautioned on 26 January 2024.
“While Sam was being cautioned, a police officer took a photo of Sam and posted it on social media,” said Lagaaia.
He also told the Court that police had lied about contacting him as counsel to be present while Sam was being interrogated on 29 January 2024.
Police said that they contacted Lagaaia but did not get a response.
Lagaaia however provided the court with evidence from the Vodafone company of the incoming and outgoing calls to his phone on the day police claimed they called him and there was no record of such a phone call from the police.
He told the court that one of the Assistant Police Commissioners later apologised to him saying that they (police) wrongly recorded his phone number so they have been calling the wrong number.
Another issue was the admissibility of heresy evidence.
Lagaaia pointed out that prosecution had provided three affidavits from police Inspector Sala’a Salale. One of the affidavits was Sala’a’s, and the other two affidavits were to belong to two police officers that Sala’a wrote for them.
“Your Honour, this is heresy evidence and cannot be admissible as evidence,” Lagaaia argued.He also pointed to other prosecution evidence including that of Marie Tusi who is Sivai’s niece as nothing short of collusion against his client Sam.
Tusi’s first statement to the police was in support of Sam’s evidence of the night of the hit and run incident where she said she was with Sam. She corroborated Sam’s evidence.
Lagaaia also noted that some of the people alleged to be complainants have not made any affidavits to back up their claim. He argued that the complexity of the prosecution’s case is the lack of evidence to support the charges, and it was not fair for his client to remain in prison while prosecution is on a “witch-hunt” for victims of Sam’s alleged defamatory charge.
Not a straightforward case, says prosecution
Prosecutor Taimalelagi Leinafo Strickland said the case between Sam, Sivai and police is not a straightforward matter.
She then used one of the complainants, Tupuola Tanu Wright’s reason for requesting police for a protective order against Sam.
It seems Sam and Sivai had approached Tupuola several times asking him to agree and support what they had told the police.
The Prosecutor said the defendants even approached Tupuola’s elderly mother at Siumu and urged her to ask her son to support their request.
The prosecutor alleged that there are other people who have conspired collectively with the defendants and there is an element of corroboration between the defendants and these people to defeat the cause of justice.
Prosecution opposition to the application
Prosecution strongly opposed the bail application and their concern is that if Sam is released, there is an opportunity for him to flee the country.
She also pointed that the bail application should be denied due to reasons such as the possibility of Sam interfering with prosecution witnesses, he is a risk to the community, had a criminal conviction history since 2006 and had escaped twice from custody.
Both counsels referred to Section 99 and 101 (3)(4) of the Criminal Procedures Act 2016 to support their arguments.
Lagaaia said the Court has the discretion to grant bail on the balance of probability and for the applicant to convince the Judge.
Section (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.”Lagaaia told the Court that the priority concern for his client is his safety, and they are willing to accommodate his client with any orders from the Court if released.
He also reminded the prosecutor of the provision in the Criminal Procedures Act 2016 under the Prohibited Departure Order (PDO) that prosecution can apply to ensure Sam does not leave the country.
Prosecution used Section 101 (4) of the Restriction on bail where certain previous convictions:
“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.”Presiding District Court Judge Talasa Atoa Saaga will deliver her decision this week, on Wednesday 21 February.
