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Senior lawyer offers clarification regarding P.M's letter

A senior lawyer and the former Assistant Attorney General, Mauga Precious Chang, says criminal defendants who are granted bail only pay money if they are trying to leave Samoa.

Mauga provided the clarification in response to questions from the Samoa Observer following the publication of a letter from Prime Minister, Tuilaepa Dr. Sa’ilele Malielegaoi, in the Sunday Samoan.

The Prime Minister had written to the Chief Executive Officer of the Ministry of Justice and Courts Administration (M.J.C.A.), Moliei Vaai, demanding to know why two men accused of plotting to kill him were released on bail without paying a bond.

 “The Police informed me that a Judge granted bail to Lema’i and King Faipopo without any money being paid?” a translation of Tuilaepa's letter reads.

 “They could’ve at least paid $2 tala but there was not even a snot, the mind screams with amazement about such comical decision making. What is the policy in terms of bail?”

But the Samoan court system does not take money from criminal defendants being released on bail, Mauga said, based on the Criminal Procedure Act 2016.

Under the act, a list of criteria is set out which determines whether a defendant is eligible for bail, and whether the prosecution in their case will consent to the bail application their legal team makes.

That list includes whether the defendant is a flight risk, whether they are likely to interfere with witnesses, or whether they are a danger to themselves or others while on bail.

And in the case of court dates set well into the future, the presumption of innocence prevails and bail is granted, Mauga added.

In his letter, Tuilaepa specifically refers to the defendants of a case to which he is a party: Malele Paulo also known as King Faipopo, and Lema’i Faioso Sione) who were granted bail in February.

They were released on the conditions they would not interfere with Tuilaepa or police witnesses, nor post anything on social media relating to the trial, set for November.

The Acting Chief Justice Vui Clarence Nelson; the President of the Lands and Titles Court, Fepulea’i Atilla Ropati and Supreme Court Justice, Tafaoimalo Leilani Warren Tuala who presided over the matter and ruled for release on bail, were copied in the letter.

He also asked why the next hearing on the matter was scheduled for November, demanded to know whether the Judicial Service Commission has any say on anything and asked for a full list of cases still pending at the Courthouse.

Previously, King Faipopo had set up a fundraiser page online to raise $10,000 for the bail surety needed to let him go to Australia.

In August 2019, Tuilaepa’s representation denied the bail application for King Faipopo and Lema’i.

Assistant Attorney General Magele Leone Su’a then applied for a closed bail hearing, citing the Prime Minister’s safety.

The closed hearing took place in February and Justice Tafaoimalo took a week to deliver her decision and set their sentencing date for November.

Mauga said the only time money, or a surety is imposed is if the defendant requests to go overseas, in which case the law does not dictate a minimum or maximum amount of money that can be set.

Based on the circumstances of the case, a judge has discretion over the value of the surety.

Defendants can appeal if their bail applications are denied, and the prosecution will set out what the acceptable conditions in order to give their consent, she explained.

According to the Criminal Procedure Act, a defendant charged with treason or espionage is not eligible for bail unless a Supreme Court Judge orders their bail.

A similar rule applies to defendants (18-years-old and older) with one or more previous convictions for sexual violation, murder, attempted murder, manslaughter, using a firearm against a law enforcement officer or committing a crime with a firearm, and certain robbery and burglary crimes.

They are only eligible for bail if they can satisfy a Supreme Court or District Court judge that they are no danger to the public or the victims of their alleged crimes.

Mauga is a partner at Lui and Chang

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