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HIS HONOUR: Mr Courts Officer, would you please bring in the assessors.

 

ASSESSORS RETURNED [9.38am]

 

HIS HONOUR: Gentlemen assessors, I want to just bring you up to date about the framework of my summing-up to you, and what will be for your consideration today. First thing this morning I just want to just complete identifying the rest of the prosecution witnesses, but most of them fall into the category of `important witnesses' to whom I will return a little later. I then have a series of legal directions and matters of advice and assistance to share with you; then I propose to discuss with you the witnesses who I have put into the category of `important witnesses'.

Witness number 50 was Superintendent Salapo. He was the police officer who interviewed the accused Toi and his evidence is important, and I will return to that later.

Witness number 51 was Senior Sergeant Tusimona Tinai. He was in charge of the watch-house when the accused Toi was brought in on the morning of Tuesday, 3 August.

Witness number 52 was Senior Sergeant Sepoleta Fa'apoi. He was the police officer who actually charged the accused Toi, and he said he was present throughout the interviews between the Superintendent and the accused Toi.

Witness number 53 was Fuaupu Letufuga, the second secretary to the Minister for Womens Affairs. For a number of reasons, her evidence is important, and I will be discussing that shortly.

Witness number 54 was Frances Brebner from the Health Department, who had previously worked with the Treasury Department. She falls into the category of an important witness.

Witness number 55 was Lauaki Iosefa, the pulenu'u of Saina. He said he is a matai and he, along with two other witnesses, matais, gave evidence of a purported sighting of Toi on 17 July. Whilst their evidence is within narrow compass, I can, and should, deal with them when considering the important witnesses.

Witness number 56 was Molesi Taumasina Tau'maoe. He is the sub-editor of the Samoa Post. He told you about, and he gave some evidence directed to, the accused Leafa's character. In speaking of Leafa's character, in the sense of a reference to his reputation, he indicated that the reputation of the man, as he knew it to be, was not that of "a God-fearing man who dislikes or disapproves of violence". He said, in answering questions as to Leafa's reputation, "I would call him a person that would like to pay back...by threatening".

Witness number 57 was Mohamed Laulu Daniel Stanley, the former member of the Board of the EPC. His evidence is important, and I will return to that a little later.

Witness number 58 was Tupu Mataifa Fetaomi Penieli, another matai from Saina.

Witness number 59 was Sa Ropeti, the writer, or journalist, from the Samoa Post newspaper. I will return to his evidence shortly.

Witness number 60 was Inspector Poe Ualesi, the officer in charge of exhibits. He had been called earlier, to give evidence on another topic. He told you, during his second stay in the witness-box, that the bullet casing found at the rear of the Hall at Alafua, outside and below the open brickwork, had been given to him by Chief Inspector Rimoni. He told you that it, in turn, had been handed to Dr John Buckleton. He also told you that, during a search at the office of the Minister Leafa, he found, in addition to exhibit P17A - the copy letter from the deceased to the Prime Minister dated 19 May - a copy of another letter. That was a copy letter from the Prime Minister to the accused, Toi, dated 25 May 1999. During cross-examination by Mr Epati, you may recall that Inspector Poe explained that the 303 casings and one 223 casing they found at Toi Cain's premises were, in fact, located at Harry Cain's premises.

Before the next witness was called, you may remember that the two accused admitted some facts pursuant to section 55 of the Criminal Procedure Act. This served to dispense with proof of certain facts. Although these facts may not have much significance in the scope of things, you may take it that there is no dispute, and you may treat it as having proven, that a fingerprint belonging to Pasikale was found on some yellow tape inside the bag, exhibit P21. Having regard to other evidence, it is perhaps not surprising that that fingerprint, agreed to be that of Pasikale, was so found. The sum total of the other facts that were admitted suggest that, whilst some partial fingerprints were found, no positive identification was possible.

The last prosecution witness but one (No 61) was Constable Ututau Pasese, and I will discuss his evidence shortly.

The final prosecution witness (No 62) was Inspector Fou Taioalo. He told you that he was the police officer who had the day to day responsibility of the running of the police inquiry which has resulted in this trial. He told you that he conducted a brief interview with the accused Leafa on the afternoon of 4 August last year.

I remind you of what I told you at the time that evidence was given: I said then, and I say now, that the evidence of what the accused Leafa said to the police, in the absence of the accused Toi, is evidence which you may use for or against the accused Leafa - you may even think it is somewhat neutral - but you must not use it against the accused Toi.

The Inspector said that, in response to his question, "Is there anything that you know about the death of Luagalau?" Leafa replied, "There is nothing that made (me) angry with Luagalau, except for Toi. If he is angry, then he should be, because Luagalau has stopped his contract."

It is a matter for you, gentlemen, but you may think that the accused Leafa was implying that he did not know anything about the death of Luagalau, but only that the accused Toi had a motive for some involvement in the death of Luagalau, but that he (Leafa) had none. The Inspector said that he then asked the accused Leafa, "Does it mean that it was your son that was charged with the killing of Luagalau?", to which the accused Leafa replied, in words which I transpose into direct speech, "Yes, because everyone will be saying that I was the one that urged my son to kill Luagalau. But look, no stupid father will instruct his son to do a bad thing like that."

Gentlemen, I will be explaining, quite soon this morning, what "admissions" of an accused person are. I tell you that you should not construe that answer to the Inspector's questions as anything in the nature of an admission by the accused Leafa. You may think it discloses an awareness of what might be suggested against him, and an awareness of an important allegation that had yet to be made against him. But it is, in no sense, an admission against his interests, or a confessional statement of any sort.

The Inspector then said that he said to the accused Leafa, "There is evidence against you in connection with the killing of Luagalau. It will be made known to you, but it is up to you whether you answer to them or not." The Inspector said that the accused did not reply, whereupon the Inspector said, "We know that you were the one that instructed your son, Tise, to shoot Luagalau." According to the Inspector, the accused Leafa said, "No, but can I make - can I consult - a lawyer?" Gentlemen, you should assess that denial, "No", as constituting a denial of the important allegation that the accused Leafa incited his son by urging him to murder the Honourable Luagalau. If, when you are deliberating, you conclude that the accused Leafa told a lie, or a series of lies, in Court, to the extent that you also conclude that that denial out of Court was false and was also a lie, you cannot - you must not - treat that lie, that false denial, as any proof of the crime charged.

You cannot - you must not - treat that assertion of "No" - that denial - even if you think it is a lie, as any proof that Leafa did incite his son Tise to murder Luagalau. It is only in the rarest of criminal trials, and this is not one of them, that the inference can be drawn that a lie like that, if you conclude that it was a lie, proceeded from a consciousness of guilt. A bald denial of guilt like that, which is only shown to be a lie by proof of the crime itself, is not a lie which can assist, and therefore be used in the proof of guilt. You can (and should) treat the accused Leafa's answer, "No", to the statement by the police that they knew that he was the one that instructed Alatise to shoot Luagalau, as a statement by the accused out of Court that is consistent with his innocence. You may not qualify that conclusion in any way because he then asked to see a lawyer.

Gentlemen, it is the legal right of a person accused of a crime, and in custody, to ask to see a lawyer, and, if so, to consult a lawyer, and to decline to answer questions, or any more questions, until his lawyer is present, unless in the meantime he has waived that right. By asking to see his lawyer, the accused Leafa was exercising his legal right. No adverse inference, that is to say no inference adverse to the accused Leafa, is to be drawn from the fact that he exercised his legal right in that way and at that time.

Well, gentlemen, those were all the witnesses that were called by the prosecution; 62 in all.

Before I turn to a consideration of what I have called the `important witnesses', there are some general directions that I want to give you, and these are all matters of importance.

I now want to say something to you briefly about "admissions". An "admission" is a statement made out of court by an accused against his interests. When I say "against his interests", I mean that the statement, if true and meant in a certain way, will tend to prove or go towards proving the charge or impair or break down his defence. A "confession", on the other hand, is a special kind of admission. It is one that involves a full acknowledgement of guilt. But I hasten to say that we have no evidence of a confession here, by either accused.

An "admission" relates to one or more limited aspects of the charge. Do you have before you evidence which may constitute evidence of an "admission" in this case? You have evidence, gentlemen, to the effect that the accused Toi said to Superintendent Salapo, during the interview on 4 August, a number of things. If you conclude that they constitute "admissions", and if you do so beyond reasonable doubt, then you can use those "admissions" as evidence going towards the guilt of the accused Toi.

I now want to say something to you about "alibi". In this case, the accused Toi says that he was not present at Vaimoso, at or outside the door of his home, on the afternoon of 17 July at about 2 pm. That was the time when it is alleged that he was waving to Leafa as Leafa was leaving his (Toi's) premises in the company of Aniseko. The defence of Toi has called several witnesses to establish and verify the contention that he was not doing what he is alleged to have done at that time and place. I refer to the accused Toi himself; his wife, Pauline; and his daughter, Caroline. It is argued that the accused Toi, therefore, has, in effect, an alibi, and could not have been there at that time.

Furthermore, the accused Toi denies having been present at Saina some time after 5 pm on 17 July to pick up Eneliko. The defence of Toi relies on the same witnesses, supported, to an extent, by the medical witnesses, to establish that he (Toi) could not have been there, as he was at home in bed, sick. It is argued that the accused Toi has an alibi, and could not have been there.

The theory of an alibi is that the presence of an accused elsewhere at the relevant time, or absent at the relevant time, is essentially inconsistent with the accused's presence at the time and place at which the thing alleged could have happened. When I talk about "the time and place at which the thing alleged could have happened", I am speaking of the meeting, the alleged meeting at Vaimoso, when Leafa and Toi are alleged to have waved at each other, and later that afternoon, at Saina, when it is alleged that Toi came and picked up Eneliko.

Gentlemen, it is important to bear in mind that there is no onus of proof on the accused Toi, having raised it, to actually prove an asserted alibi. The onus (the burden) remains on the prosecution to prove the charge beyond reasonable doubt. In considering what weight, if any, to attach to the alibi evidence, you should have regard, not only to the evidence directly relating to the alibi, but also to the whole of the evidence in the case bearing upon whether the accused Toi did what is alleged against him. If you are left in the state of mind that it is a reasonable possibility that the alibi put forward by the accused Toi at a particular stage is true, then the doubt thereby arising must be resolved in favour of the accused.

I should add that rejection of alibi evidence does not necessarily lead to a conclusion of the guilt of the accused Toi in this instance.

Having put the alibi evidence to one side, if that is how you conclude, you must still review all other evidence placed before you, and consider whether the prosecution has proved all elements of the offence beyond reasonable doubt.

I now want to tell you about a related topic which flows on naturally from what I have just said about "alibi". I want to say something to you about "identification evidence" and "recognition evidence" in particular. I say this in the context of Constable Ututau's evidence of recognising Toi, and Leafa as well, at Vaimoso at 2 pm on Saturday, 17 July, and also in the context of the three men who I have labelled "the three matais" who, according to their evidence, saw Toi pick up Eneliko after 5 pm on that same afternoon at Saina.

I should tell you now something about identification and recognition evidence which the law has said requires special care. The history and experience of the law has shown that evidence of personal identification of an accused or of some person, and, in particular, evidence of the recognition of a person previously known to the witness should be treated with considerable caution. I am speaking about the recognition of a person being somewhere at a particular time and place. Recognition evidence, which is really a type of identification evidence, is, in the circumstances of this trial, evidence given by a witness who claims to have recognised an accused as a person known to them by sight from previous association. The persons said to have been recognised at Vaimoso by Constable Ututau were both accused. The person said to have been recognised by each of the three matais at Saina was the accused Toi. But you will remember, gentlemen, that there was the evidence of Eneliko himself, who was not giving identification or recognition evidence; he was giving direct evidence of what he says happened.

In many ways, gentlemen, evidence given by a witness of what he observed by way of recognising a person previously known to him is no different from that person's description of events which he says he observed. There are many factors underlying an assertion by a witness, that he recognised a certain person, which are common to eye-witness evidence. It is in relation to the expressing of an opinion as to recognition that the nature of recognition evidence varies from other eye-witness evidence. It is at this point that the witness is permitted to express an opinion, rather than recounting his observations.

Psychological studies that have been undertaken document things which affect these stages in the recognition process. Any one, or a combination, of these things may lead to the reliability, or the unreliability, of the expressing of such an opinion.

Amongst the things to be considered when assessing the reliability or unreliability, as the case may be, of the type of identification evidence are as follows:

(1) the period during which the accused was said to have been known, whether by sight or by name, to the witness;

(2) the ability or inability of the witness to take in information, such as, for example, the time for observation, the distance from which the observation was made, the lighting, and the nature of the surrounding circumstances;

(3) the length of time during which the witness had the accused, whom he purported to recognise, under observation;

(4) the ability or inability of the witness to take in information regarding the recognition;

(5) the presence or absence of emotional factors, or the existence or otherwise of a reason to be confused or inattentive;

(6) the nature of the witness, such as, for example, the witness' ability or inability to give recognition evidence;

(7) the scope for confusion with someone else;

(8) the similarity or otherwise of the person said to have been recognised to anyone else;

(9) the well-recognised inability of cross-examination, as a forensic technique, to expose the mistaken witness for what he is;

(10) another factor that is important is the displacement effect, or the subconscious transference from one person to another, or from recognition at one time to recognition at another time;

(11) the subconscious consolidation of what may be no more than a guess into a confident opinion;

(12) the tendency for repeated error to arise through repeated sightings of the person purportedly identified or recognised (I am here referring to what the law calls "contamination of recognition evidence"); and

(13) and lastly, the length of time between the incident in question and the particular occasion when the witness purports to have recognised the person.

The prosecution relies, gentlemen, as far as proof of post-murder activities of the accused Toi is concerned, and, to an extent, the post-murder activity of the accused Leafa, upon recognition evidence. I remind you that I am referring to the recognition evidence given by Constable Ututau Pasese and by the three matais; that is to say, recognition of the two accused at one place at one time, and the recognition of Toi at another place, Saina, at a later time. You should be aware of the need for caution, which the law requires and recognises, with regard to disputed identification evidence in general, and disputed recognition evidence in particular.

In the case of the purported recognition of a person being somewhere and doing something, when previously known to the witness; where the conditions may have presented, on the day in question, difficulties for the witness; where the person said to have been recognised was seen for perhaps only a short time; and where there may be some feature that casts a shadow, so to speak, over the witness' mental process identification recollection and recognition - the law says that care should be taken with evidence of the kind that I have been discussing, because of the well-known difficulties that are associated with evidence of this kind and which are inherent in the fallibility of human observation, recognition and memory.

I want to discuss next another matter of legal principle, but I will do that after the morning break. So, Constable, would you please take charge of the assessors.

 

ASSESSORS RETIRED [10.42am]

 

HIS HONOUR: Mr Registrar, would you adjourn the Court, please, for the morning break.

 

SHORT ADJOURNMENT [10.42am]

 

RESUMED [11.05am]

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors, please.

 

ASSESSORS RETURNED [11.05am]

 

HIS HONOUR: Gentlemen, three more legal topics, and then the `important witnesses'.

If you are satisfied beyond reasonable doubt that there was a plot, or joint enterprise, that was hatched between the accused Leafa, the accused Toi and Alatise, when all three were at Leafa's office, a plot that was further discussed and developed by Leafa and Toi later, under the pulu tree, then I tell you, gentlemen, as a matter of law, that you may use what any of those three persons said or did in furtherance of the plot, or joint enterprise, against the others.

The primary evidence of such a plot was given by Alatise. But the accused Toi confirmed, in a material way, that evidence, at least to the extent of the discussions under the pulu tree, about which he was quite specific.

To give you an example: if you are so satisfied that there was a plot or joint enterprise, this means that the evidence of what Toi said to Eneliko about the source of the gun, exhibit P8, is admissible against, and may be used by you against, Leafa. I am referring to that evidence to the effect that it was Leafa's gun and, in another context, that it was going to be returned to Leafa.

Now, likewise, what Alatise told you that Leafa had told him about Toi, in Toi's absence, is admissible and may be used against Toi.

This principle of law about which I am speaking applies, not only to words spoken by a co-participant in a plot in furtherance of the plot in the absence of the other, but also to things done and actions taken, provided that those things done and actions taken are in furtherance of the plan or plot.

So, for example, the evidence of Eneliko as to certain instructions given to him by Toi, and as to the visits by Eneliko to Luagalau's house (with Toi or on his own) is not just evidence that is admissible against Toi, it is evidence which you may use against Leafa as well as Toi.

Similarly, the evidence of Alatise about similar visits he made to Luagalau's house, once with his father and, on other occasions, on his own, is evidence not just against Leafa, but also against Toi, and it may be used against them both.

Similarly, the evidence of Aniseko, as to his carrying out of Leafa's instructions, to take, what you may conclude was the murder weapon to where he was told to take it, and then handing it to Alatise at Saina, something subsequently approved of by Leafa when he said, in effect, that it was "okay", is evidence that is admissible against both accused, Toi as well as Leafa, and it is evidence you may use against both accused.

I now want to say something to you about "expert witnesses". In this case, certain persons said to be experts in particular fields, have been called to give evidence. I refer to the several medical doctors that gave evidence, and I also refer to two forensic scientists, one of whom, in particular - Dr Buckleton - is said to be a ballistics expert. The ordinary rule is that witnesses may only speak as to facts, and not express their opinions. An exception to that general rule is that persons duly qualified to express some opinion in some particular area of expertise are permitted to give evidence of their opinions upon relevant matters within the field of their expertise.

However, the law is that you, as the assessors and sole judges of the facts, are not bound to accept such opinion evidence. You remain the sole judges of the facts, and you are entitled to assess, and accept or reject, any such opinion evidence, as you see fit. It is for you to give such weight to the opinions of those expert witnesses as you think should be given, having regard to the qualifications of the witness, the partiality or otherwise of the witness, and the extent, if any, to which the witness' opinion accords with such other facts as you find proved.

Expert witnesses differ from some of the other witnesses in that they did not see what happened. They have expressed opinions based on facts given to them. It is important, therefore, to remember that those opinions are only as valuable as the facts upon which they are based, and they would, of course, have limited, or no value if the facts upon which they are based are not established to your satisfaction.

To say, gentlemen, that lies have been told in this courtroom, in your presence, is an understatement. I want to say something generally about "lies" now, but I will be returning to this topic in other contexts later. "Lies" are deliberate untruths told by a person. The fact that a witness has told a lie or lies will, no doubt, affect his or her credibility as a witness in your eyes, so that you will be less willing to trust that witness' evidence than in the case of a witness who has not told lies. It is right and proper that you should examine the matters about which lies were told and the circumstances in which they were told.

Gentlemen, people tell lies for all different sorts of reasons, and sometimes for no explicable reason. Sometimes they tell lies to frame someone, falsely accuse someone. Sometimes they tell lies out of panic, or to escape something unpleasant, or to protect someone dear to them. Sometimes they tell lies to shift blame, or part of the blame. Sometimes they tell lies in embarrassment, or sometimes because they just cannot help themselves. Some people are pathological liars, it is part of their makeup. Sometimes people tell lies to avoid an unjust accusation, in a foolish attempt to improve an innocent version of events. Sometimes people tell lies to be smart. Sometimes people tell lies as a payback, or in retribution. There may be innocent explanations for lies. The reasons for a witness telling lies may be satisfactorily explained or accounted for. The reason for a person telling lies may not be adequately explained.

Well, so much for the legal topics for today, gentlemen. I now want to return to a consideration of, initially, the prosecution witnesses; and later, the defence witnesses, all of whom I have put into the category of `important witnesses'. During this exercise, which I hope will not be too tedious, it might be as well for you to continue to make notes.

The 21st witness was Lagi Aualiitia. She was the 16-year-old girl who said that she was staying with her second cousin, Tili, the wife of Alatise, at Malie. She agreed that there were two periods, both after Independence last year, when she stayed at that home. She said that she was assisting in looking after Tili's children, and also doing the washing. She said that the people in the house were Tili, Tise, the three children, and herself.

She described how, on the Monday on the week immediately before 16 July, Leafa's driver, Aniseko, came to the house in his vehicle, but Alatise did not go with him. She said that Alatise did not go to work on the Tuesday or Wednesday or Thursday, but stayed in the house. On each occasion, she saw Aniseko speak to Tili. She could remember that Aniseko came around to the house three times on the Thursday, and, on each occasion, spoke with Tili, except for the third occasion, when she said Aniseko spoke with Alatise.

She told you that, on Friday, 16 July, Aniseko came around three times, and, on each of the occasions, Alatise went and hid from Aniseko. After the third visit, she said that she saw Alatise "get prepared". She said that saw him picking up the gun from where it was, and placing it inside a bag, a lavalava was wrapped around the gun, it was black and about 2 feet in length. She gave some further evidence by way of description of the gun, and she described the clothing that Alatise was putting on. It is a matter for you to assess this young girl's honesty and reliability as an observer; but perhaps you will conclude that, bearing in mind the evidence of some other witnesses, she was simply mistaken, in some respects, as to what she saw Alatise wearing and carrying.

Lagi was asked what Alatise did next, after he had packed his bag and prepared himself. She replied:

He came and he told Tili that he was going to Leafa, and going to return the gun. He said he was going to take the gun, that Leafa would like to use the gun.

The witness, Lagi, also told you about the first occasion on which she saw the gun, on the Sunday before the 16th, the night they all went to the YFC Fellowship. She said that she saw Alatise practising with the gun. This witness, Lagi, recalled that she had heard Alatise say to his wife, in reply to an inquiry as to where he had got it from, that it was a gun that he had "got from Leafa".

If, gentlemen, you are satisfied beyond reasonable doubt that there was a plot or joint enterprise, then that statement of a participant, Alatise, in furtherance of the plan, is admissible against Leafa and Toi. You may use that evidence - his statement to the effect that he had "got (the gun) from Leafa", and the earlier statement, that he was "going to return the gun (to Leafa)" - as evidence against both Toi and Leafa, and it is, gentlemen, circumstantial evidence, pointing to the accused Leafa having possession of the gun. But you may use it in that way, only if you are satisfied that there was a plot, and that Leafa, Toi and Alatise were parties to it, and that that evidence of Lagi was evidence of part of Alatise's conduct in pursuance of that joint enterprise.

The witness, Lagi, also told you that on the Wednesday before the incident in question, she saw some ammunition in front of the house at Malie. Under cross-examination, Lagi was asked about some alleged inconsistent statement she had made, that is to say, some statement she had allegedly made earlier to the police, which was inconsistent with her oral testimony. An instance of this was her alleged statement to the police, to the effect that the car did not come to pick Alatise up on Monday, 12 July, in contrast to her testimony, to the effect that Aniseko did come on that Monday. She said that her statement to the police was not correct, so she was not admitting that she had made an inconsistent statement. Another instance of an alleged inconsistent statement was her statement to the police to the effect that Aniseko's van had come to find Tise about six times on the Thursday. However, she said that her first statement was to the effect that the vehicle came on three occasions, three times, and she asserted that the police must have mis-recorded her statement.

Gentlemen, in the absence of any evidence to the contrary, and there was no evidence to the contrary, you ought not to assume that the witness Lagi made an inconsistent statement. So, therefore, you should not proceed to a conclusion to the effect that she was either mistaken or lying, when she gave her evidence, as a deduction from the fact that she had admitted making inconsistent statements. She simply did not admit having made prior inconsistent statements.

Lagi did acknowledge, whilst under cross-examination, that she did not mention, in her statement to the police, that Aniseko and Alatise had a conversation on the afternoon of Thursday, 15 July. That is something that you may use in assessing the truth and accuracy of the testimony of Lagi. But you may think that there is a difference between an omission to say something to the police and a statement made to the police which is inconsistent with later testimony in Court.

Witness number 27 was Aniseko Aitu, the former driver of the accused Leafa. He told you that, sometime towards the end of June, beginning of July, he recalled going on a trip to Vaimoso with the Minister (the accused Leafa) to Toi's house. They travelled in the Post Office van. He told you that, once at Vaimoso, the accused Leafa went inside Toi's house. He waited outside, sitting inside the vehicle, for about 20 minutes. Then "the Honourable Minister (Leafa) and the Honourable Member of Parliament (Toi)" came to the vehicle; they had been talking. He said that the accused Leafa was holding "a long thing. It was wrapped inside a spotted lavalava, brownish in colour. It looked like an axe handle." The accused Leafa then opened the back of the van and put "this stick", as he described it, inside the seat of the van.

Aniseko then described how they - he and his Minister - went to Vaovai, but, on the way, the accused Leafa said something to him. He said that Leafa said, "Watch out for the gun that is behind in the vehicle, and you should take it home and lock it in a box." Aniseko told you that the accused Leafa said, "Look after the gun properly", and "No-one should know about it". You may remember, gentlemen, that I directed you, at the time that evidence was given, that that evidence as to what the accused Leafa may have said to Aniseko, in evidence, you may use against the accused Leafa. I said, at that time, that you may not use it against the accused Toi, who was not said to have been present when those words were allegedly spoken. That advice no longer stands. You may use it against Toi as well if, but only if, you are satisfied beyond reasonable doubt that there was a plot between Leafa and Toi and Alatise to kill Luagalau, at least, and if you are satisfied that what was said and done by Leafa was in furtherance of that plot.

Aniseko told you that, when he arrived at his home, after taking the Minister home, he called to his wife to take the gun and lock it in the box. He went on to describe what he did in relation to that gun, and what he asked his wife, Sulu, to do. Aniseko was asked when the next time was that he saw this gun again. He said:

The next time that I saw the gun was when I was told by the Minister to go and get it. That was after four days, or even a week, since we had the gun, and that is when I was told by the Honourable Minister to go get the gun and take it to Vaitele.

Vaitele, as Aniseko later told you, is the place where the Minister's residence is, and it is where, according to other evidence, Alatise was apparently heading in a Suzuki. Aniseko told you that he went and told his wife to go and get the gun - open the box and get the gun from the box. After getting the gun, Aniseko told you that he was carrying out the Minister's orders and taking the gun to Vaitele. But, at Saina, he met up with Tise, coming in a Suzuki. He said that, as they were both stopped at the side of the road at Saina:

Tise came to me and asked if I had brought the gun.

Aniseko told you that he said to Alatise that he had brought it, and that it was on a seat at the back of the van. If you are satisfied, gentlemen, that there was a plot between those three men, that evidence as to what Tise allegedly said to Aniseko, asking if Aniseko had brought the gun, is evidence that you may use against both Leafa and Toi. When asked what happened next, Aniseko said, in evidence:

Tise came, opened the door at the back of the van, took the gun, closed the door, and walked to his vehicle.

Aniseko then said he returned to the office of the Minister, and, in reply to a question from the Minister (Leafa) as to whether he had taken the gun to Vaitele, he said that he had not, but that he had met Tise and had given it to him, to which the accused Leafa replied, "That is all right". This was, according to Aniseko, about a week prior to the incident when the Minister, Luagalau, was shot.

Aniseko was asked about what he did on the several days immediately prior to the shooting. He told you how the accused Leafa sent him to Malie for the purpose of fetching Alatise to the office, but he said that he did not find him; only Tili.

He said that, on the Friday, 16 July, he was instructed by the accused Leafa to go and get Alatise from Malie, where Tise was living. He described several visits on that day. Aniseko said that, following what Tili had said to him, ultimately, he went to the front at a house where they usually have their prayer meetings, about two houses away: "The house of the old woman, Eseta." It was Aniseko's evidence:

When I go to that house, Tise walked to my vehicle with his bag, red, white, with the Coca-Cola names. Tise came to the vehicle, opened the back of the van and put that bag inside, in the van. There was something long sticking out of that bag. It looks like something black that was wrapped around, and I did not understand what was in the bag.

Aniseko went on to tell you that the thing was placed in the car, the door was closed. Alatise came and sat with him in the front, and then they proceeded to the accused Leafa's office. When they arrived and the vehicle was parked in the car park, Alatise went up to the Minister's office. Aniseko waited for about 15 minutes. The bag was still inside the vehicle.

Aniseko told you, in his testimony, that, after that time, Alatise came back and told him to go to Vaitele. He said that they went, as Alatise had asked. Whilst travelling, "Alatise told me", said Aniseko, "to go and buy bottles of beer from the Penisula." They went, Alatise bought four bottles and brought them to the vehicle. Alatise then asked to be taken to Vaitele. And he went on to describe their movements from then on, and he described what he did for the balance of that eventful day.

Aniseko was asked about some events in August 1999, the month after the date of the deceased's murder. On the day the accused Leafa was taken into custody by the police, Aniseko told you that he met with the Minister up at his office. He said that the Honourable Minister asked him to come inside his office. Aniseko said that the Minister asked him to go and do some shopping for the store at Vaovai. The Minister also said to him, said Aniseko, that "If police came to you, then not to tell them about the gun". That is evidence, if you believe it, that you may use against the accused Leafa, but not against the accused Toi. It is not, in my assessment, evidence that may be said to be in furtherance of the plan, if there was one.

When being cross-examined by Mr Toailoa, Aniseko agreed that he was first interviewed by the police two days after the incident in which the Honourable Luagalau was shot. You may recall that the witness acknowledged that he could not remember the topics that were raised with him by the police, but he could remember the events of 14 July, two days before the shooting. When asked to explain, the witness said that "It's probably the work of the Holy Spirit on me at this time."

It is for you to assess, gentlemen, and it is open to you to regard that answer as incredible, and that may lead you to disbelieve that part, or even the whole, of Aniseko's evidence. On the other hand, you may feel that that is the answer of a devout, but unsophisticated, perhaps even a not very intelligent, man, who was trying to rationalise and explain why events which had happened could be recalled, whereas topics of conversation with the police could not.

Gentlemen, you are "men of Samoa". You are men of the world. It is, of course, a matter for you, but you may think, from your own experience of life, that events, happenings, actual experiences, are, generally speaking, much easier to recall than the details of conversations which may not make a vivid impression upon one.

Whilst it is open to you to conclude that Aniseko was telling an incredible story when he was asked to explain his difficulties in recall, I urge you to take care before dismissing his evidence `out of hand'. It may be neither fair nor right to dismiss his evidence `out of hand', simply because he spoke in terms of "the Holy Spirit coming to him" and helping him and "whispering" to him. You see, that may have been his simple (his basic) way of explaining that his memory of the events and what had happened were the truth, God's truth, which he had sworn on oath to tell, and that his memory of conversations with the police was understandably defective.

Well, gentlemen, we will break off for lunch now, and, after lunch, I will complete what I have to say about Aniseko, and keep up to my program of discussing the witnesses who I regard as important for your consideration.

Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [12.08pm]

 

HIS HONOUR: I will have my Registrar inform the assessors that we will resume at 1.30, if that is suitable to all. Would you adjourn the Court, Mr Registrar, until 1.30 this afternoon.

 

LUNCHEON ADJOURNMENT [12.08pm]

Eveni Carruthers "We are committed to serving you better"

RESUMED [1.37pm]

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors, please.

 

ASSESSORS RETURNED [1.37pm]

 

HIS HONOUR: Gentlemen assessors, I was discussing Aniseko. You may also remember that Aniseko told you that he has a permanent hearing problem. You should not overlook that as a possible contributing factor to any difficulties he had as a witness. Gentlemen, the assessment of the witnesses, including Aniseko, is entirely a matter for you. Before you reach any final view about that witness, Aniseko, I invite you to ask yourselves whether Aniseko was not, by his references to the Holy Spirit "whispering" to him, really saying to you, but in the surreal, evangelical and esoteric language of the Christian Church, that he was simply telling the truth.

You may well conclude that it was not established, during cross-examination of Aniseko, that he made a series of inconsistent statements or that he had said one or more things to the police that were inconsistent with his evidence in Court. Had that been so, then you might have had reason to reject some, or even all, of his testimony. You may conclude that it was established, during cross-examination of Aniseko, that he did not tell the police, on the first occasion, 18 July, what he ultimately told this Court. You will no doubt ask yourselves whether he was making things up as time went on, so to speak. Or whether, for perhaps one or more understandable reasons, such as fear, or to protect his boss, or out of concern for his own position, he was releasing the truth in `dribs and drabs'.

It is a matter for you, but you may think that, in terms of the honesty of the witness, there is a difference between the witness who makes inconsistent statements and tells lies, on the one hand, and the witness who, through telling the truth, refrains from releasing the whole truth, on the other.

It was suggested to Aniseko that he was "making things up". But, gentlemen, you would be entitled to ask yourselves: is he likely to have made up the pieces of the story he eventually released to the police, and which, in their totality, became the whole story as far as he was concerned? If he was trying to `frame' the man whom he had worked for for all those years, is he not more likely to have told a more incriminating story than he did? Is he (Aniseko) the illiterate man, the unsophisticated man, the driver, capable of telling the several segments of the story he told you, and in the way he did, if it was not true?

Aniseko was asked, in cross-examination, many questions as to why he did not tell the police, in his earlier interviews, what he later told. He was cross-examined; he was tested; he was pressed. In the end, gentlemen, it will be for you to assess as to whether what he was ultimately telling, as his testimony from the witness-box, was a matter of lies or mistaken or false evidence.

It was suggested to Aniseko, by Mr Toailoa on behalf of Leafa, that he never picked up Alatise from Eseta's house on that day. The inference from the way that question was put in cross-examination was, you may think, that the fact of the third visit, with Alatise being picked up, was a lie, or much the same thing, a matter of recent invention. Aniseko, you may remember, firmly denied that suggestion. He said:

That was the house that I picked him up from -

and he later said:

I'm speaking with all honesty that I did. I did not go to the house. I stopped in front of the house, and I picked him up from there.

In assessing that answer, and others, and his credibility as a witness generally, you might ask yourselves whether any reason exists, or might exist, for Aniseko having made up all that evidence. As I will explain later, there is no onus of proof on the defence, and there is no obligation upon the accused Leafa to prove to you that to secure re-employment with the EPC, or any other reason, was Aniseko's motive for lying and giving false testimony.

It was put to Aniseko that someone suggested to him that such a thing be said in Court. Such is certainly a possible explanation for false testimony, but what was Aniseko's answer? He said:

It was my own mind at that time. That was why I related that at that time.

It was also suggested to Aniseko that he was, "perhaps, trying to be smart". That was denied by Aniseko. Whatever you might make of Aniseko as a man, and as a witness, one thing you might think, gentlemen, is that he was not smart - I intend no disrespect to the witness when I say that. It was also suggested to Aniseko that he was not telling the truth because he was trying to align himself - align his answers - to a certain belief, or a certain theory. Make what you will of that, gentlemen, as you assess the truthfulness of his answer. He said:

No, that was my answer, and that was what was in my mind, sir.

Aniseko acknowledged, in cross-examination, that it was not until during his time in the witness box that he remembered that the accused Leafa had told him, on the day of his arrest, not to tell about the gun. His explanation for the lateness of his recall of that was:

Thinking about the matter, it appeared to me that I had not related those matters in my statement, so I then decided to mention them in yesterday's statement. I had forgotten them (when having the briefing with Mr Latu).

"Yes", he said, in effect, "it was only yesterday that I remembered that, on the day Leafa was arrested, he told me not to tell the police about the gun." Aniseko strongly denied the suggestion that he had told a lie about that.

In assessing Aniseko as a witness, you might ask yourselves, "Did he have a reason to tell a lie or lies?" "Did he have a motive to implicate his former boss?" "Did he have a reason to falsely implicate the Minister in Luagalau's murder?" Mr Toailoa suggested to the witness that he, Aniseko, was very concerned about his own involvement and that, by inference, that was a reason why he might have lied. But Aniseko agreed that he was very concerned, and he implied that that was the reason why he told the police everything that he knew, and that he only told the truth. He denied that he was offered any sort of inducement, such as being offered re-employment if he testified against Leafa. He maintained that he was never threatened with prosecution, as opposed to being informed as to what could happen.

I turn now to the next important witness, the 28th, Sulu Aniseko Aitu, the wife of Aniseko. She confirmed her husband's evidence to the effect that he (Aniseko) came home one day at the end of June or beginning of July last year and gave her "something that was wrapped in cloth". She said that her husband told her to "go and put that gun - Leafa's gun - in the box." The evidence of what Sulu said her husband had said to her about whose gun it was is not evidence you can use as going to the truth of what her husband might have said to her. You cannot - you must not - use that as evidence, circumstantial or otherwise, tending to show that the gun was Leafa's gun. What you can use that evidence for is as evidence of what was said between husband and wife. And you can use it rebut or answer the suggestion, if one was made, and it certainly was, that Aniseko had fabricated or made up that story about Leafa giving him the gun to store at his house in the box. She went on to tell you that she complied with her husband's instructions, and she gave evidence describing what it was that she put in the box. She told you what happened, about four days later, when Aniseko spoke to her again.

When under cross-examination by Mr Toailoa, Sulu was asked whether she would be "very worried and concerned if anything happened to Aniseko", and "pretty worried if Aniseko became unemployed for any reason". By the answers that were given, Mr Toailoa thereby established, you might think, a motive which she would have had to have told lies in support of her husband's evidence. I remind you that the defence does not have to establish a motive. There is no burden of proof at all on the defence, but that motive might, you might think, have been established.

You will remember that the witness, Sulu, gave evidence about seeing the Commissioner of Police on television holding a gun. Then, you may remember that Sulu said that her husband said that he knew nothing about the incident. If you accept that evidence as true, you may use that as some evidence to influence your view as to the honesty and reliability of Aniseko. If he was not prepared to be wholly truthful to his wife on the topic - admittedly, you might think, to disassociate himself from any involvement in, or awareness of, the circumstances surrounding the assassination - then he might have been prepared to tell lies to you in Court. On the other hand, you might assess this episode as being consistent with the man, Aniseko, only slowly and, initially, rather reluctantly, telling the truth in bits and pieces, and that he was simply delaying the telling of anything approaching `the whole truth and nothing but the truth'.

I now turn to the cattle man, Iulio Pogai, the 36th witness. He told you that he works for Poloma, looking after his cattle farm. He said that, round about June of last year, he was asked to kill a beast in connection with the Independence celebrations. He said that he used a gun that had been given to him, or lent to him, by Eneliko. He described the gun, and eventually, when he was shown exhibit P8, he said:

That is the gun.

You may think that the gun and its story is the link, or provides a link, between Leafa, Toi, Eneliko and Alatise - and its progress. The progress that I am referring to is that the gun - so the evidence might suggest to you, gentlemen - is that it went from Leafa to Toi; from Toi to Eneliko; from Eneliko to Pogai and back to Eneliko; from Eneliko to Tilo; from Tilo to Toi; from Toi to Leafa; and from Leafa to Aniseko and thence to Alatise. In a sense, the cattle-man, Iulio, is, you might think, a link-man in that progress.

Iulio said one or two things that you might think he was mistaken about, but it is a matter for you. He said:

After using it, I had to reload.

And he also said:

Yes, I pulled the lever, sir, to remove the shell.

You might think that what he was saying was that the gun, although a semi-automatic which normally ejects automatically, did not operate in that way on that occasion. Equally, you might think that he was mistaken about those things, and that, in that event, he was not in Court looking at the actual gun he used.

But, gentlemen, having regard to what Eneliko told you, if you believe him on this topic, and having regard to the ballistics evidence about exhibit P8 automatically ejecting cartridges, you may find yourselves satisfied that the cattle-man was indeed mistaken.

When being cross-examined by Mr Epati, Iulio Pogai described Eneliko, the man who had "lent him the gun to shoot the beast", as wearing "short hair, mostly grey". Whereas you may recall that Eneliko himself, who gave evidence later, said that his hair was different.

You would do well to ask yourselves whether you can rely on Iulio as an accurate and reliable witness, or whether you should conclude that both Eneliko and the prosecution were wrong to say or suggest that the gun used to kill that beast was exhibit P8. If that bullet casing that was found at the farm was from exhibit P8, and if the ballistics evidence, as given by Dr Buckleton, in particular, is true and reliable - and it was not contradicted by any other evidence - then a `ballistic bullet casing link' may be seen to exist; a link between Eneliko (said to be the accused Toi's man), the murder weapon, and Alatise (the accused Leafa's son).

The next important witness is witness number 37, who was the first of the witnesses I describe as "the matai witnesses": Ogemareko Mafi, from Saina. He said that, in the middle of last year, he saw the accused Toi coming to visit Eneliko at Saina on more than two occasions. He said that one of those occasions was the day after the Honourable Luagalau's death. He said that the accused Toi and Eneliko left together in a blue Jeep. When under cross-examination, Oge indicated that he knew the accused Toi well, as a Member of Parliament for his constituency.

He further acknowledged that he had made an inconsistent statement to the police in which he had told the police that he saw the accused Toi coming to visit Eneliko on 16 July, not 17 July, as he had said in examination-in-chief. This is another illustration of an inconsistent statement, about which I have been speaking quite a lot today. His explanation for the apparent - and I emphasise "apparent" - inconsistency was that the police put it down incorrectly.

There was no evidence given by the police officer who took his statement to answer the suggestion that a mistake had been made in recording the date upon which Oge had recollected the visit having taken place. So, therefore, you might conclude, gentlemen, that there was no inconsistent statement which was available to be used in discrediting that witness. In any event, you may recall, gentlemen, that in re-examination, the witness Oge was fairly firm in stating that the accused Toi did not visit Eneliko on Friday, 16 July, but did so on the next day, the 17th.

The 39th witness and, of course, an important witness, you might think, was Eneliko Visesio. He claimed to have had a long, more than 20 years, working relationship with the accused Toi. He said that his work was cattle farm work and plantation work. He told you how, upon his return to Samoa from Australia and New Zealand, around the end of April last year, the accused Toi came to visit him, and they went for a ride in Toi's car to inspect Toi's cattle farm and his plantations. He described the journey they went on in the car, arriving eventually at Tuanaimato. "The vehicle stopped and we talked there", said Eneliko.

The questioning by the Attorney-General went like this. Question:

What did you talk about?

Answer:

He talked to me about the thing that he wanted.

Question:

What was that?

Answer:

A job.

Question:

And what was that job?

Answer:

The shooting of the Prime Minister, and also Honourable Luagalau.

Question:

What else did he say to you?

Answer:

I said that was nice, that was all right.

Question:

And did you ask him anything, or say anything else after that?

Answer:

I asked him about the price of the job, the cost of the job.

Question:

And what did he say?

Answer:

He told me it was 50,000.

Question:

Did you ask him why he wanted to do the job?

Answer:

I did ask him about the reason.

Question:

And what did he say?

Answer:

He said to shoot the Prime Minister first, because the Government has taken all our district's land.

Question:

What else did he say?

Answer:

He said that after shooting the Prime Minister, then to shoot Luagalau.

Question:

Did you ask him why he wanted that?

Answer:

Because I have visited Luagalau on two or three occasions about my cheque for my work, and he had lied to me.

Just pausing there, gentlemen, you may think that that evidence, if you accept it, is evidence of the accused Toi having incited Eneliko, or aided, counselled or procured Eneliko. But that, gentlemen, is not the basis of the charge here. But if you were to accept that there was a plot or plan, then you may well see that this evidence is preliminary to, it is evidence of what was taking place before the events which are directly the subject of this charge. You may think it is evidence as to dealings with a `hitman' who got `cold feet', and that it was only a preliminary step to a later episode in which a `hitman' did not get `cold feet'.

You will recall that the evidence then went on, that he was asked by Toi later if he had thought about the job that had been proposed to him, and Eneliko gave some evidence that he said there were no `tools for the job'.

What did he, Toi, say?

said the Attorney-General. Answer:

He told me not to worry, he was going to Leafa to get the gun.

The inference you may draw - it is a matter for you - is that, if Toi was going to Leafa to get the gun to be used as the murder weapon, as part of and in furtherance of a plan to have two Ministers assassinated, then he, Leafa, had possession of it and was the source of the gun. I have spoken to you earlier about the use to which you may put evidence such as that.

At the time that evidence was given, I told you that you could only use that evidence against the accused Toi, but not against the accused Leafa. I now tell you that you may use it, if you accept it as true, as against the accused Leafa as well, but provided - and I emphasise that - provided that you are satisfied beyond reasonable doubt that there was a plot to which Leafa and Toi were parties, and that the statement that was attributed to Toi was said in pursuance of that plan.

Eneliko told you that the next time he saw the accused Toi was early in the morning, when he (Toi) told him to go, but he had obtained the gun. He and Toi went for a ride, and arrived at Vaimoso. Question:

What did you do at Vaimoso when you arrived there?

Answer:

Sat at the back of his house at Vaimoso, and then we went and brought the gun and he gave it to me.

There was some further evidence about the giving of bullets. Eneliko went on to explain, in the days that followed, that Toi asked him why there was delay in doing the job. In the course of that evidence, he told you, in evidence from the witness-box, that he (Eneliko) said to Toi that he was going back to Leafa to "return the gun and get another gun".

I need not remind you of all the evidence of Eneliko which, of course, was very lengthy. He described the visits that he made to the area where the two houses were, the houses of the Prime Minister and Luagalau. He was asked:

What sort of car did you go in?

Answer:

A jeep, sir.

Question:

What colour was it?

Answer:

Green. Light green, sir.

You will, no doubt, ask yourselves whether that was evidence of a mistake that Eneliko was making, or whether it was rather indicative of a lie that the witness was developing.

Question:

And, when you went on these trips, did you take anything with you?

Answer:

Yes.

Question:

And what is that?

Answer:

Gun, sir.

Question:

Now, Eneliko, you have told us about these times when you have gone up to the house. Was there anything that happened that changed that routine?

Answer:

The only thing I saw was that I saw a red Suzuki.

A bit later on, he was asked:

And where did you see this car?

Answer:

I saw that car turning from in front of Luagalau's house.

Question:

At that time, where were you when you saw this car?

Answer:

We were travelling up with Toi.

Question, a little later on:

How many people did you see in the red Suzuki?

Answer:

One.

Question:

And did you recognise that person?

Answer:

No.

Question:

And was that a male or a female?

Answer:

A man.

Question:

And, when you saw the red Suzuki, was it daytime or night-time?

Answer:

It was late evening, sir. It was prayer time, and it was getting dark, sir.

A little later on, he said that he only saw that red Suzuki on one occasion. When he was referred back to the second gun, about which he had been speaking, he was asked this question:

And did he say where he was going to get this other gun?

Answer:

I asked him, and he said he was going to get it from Leafa.

I need not repeat the advice that I have given you in relation to that, and how, and in what circumstances, that evidence may be evidence against, not only Leafa, but also Toi. I need not repeat it, but I rather think you will remember the evidence that he gave about Iulio Pogai using that gun to shoot the beast. The Attorney asked him:

How often would you see Toi at this time?

Answer:

Several times. We would only miss a day or two per week, sir, but he comes in every day of the week.

Eneliko denied that the accused Toi had said:

You do not come here again. You do not come here again -

referring to the Prime Minister's house -

You are not to shoot anyone in this house until I say so.

He also denied that Toi told him not to shoot Luagalau "until I say so". Eneliko insisted that the accused Toi had given him two guns, one a 303, and later, a gun, exhibit P8. Eneliko admitted making some inconsistent statements regarding the amount of money Toi told him he (Eneliko) would get for the job. It was 25,000 in his statement to the police, and 50,000 in his evidence in Court. Eneliko told you that both statements were correct. It is a matter for you as to what effect, if any, that inconsistency has, an inconsistency with which Eneliko did not agree, on your assessment of Eneliko as a witness giving evidence of important allegations that he made.

Eneliko was adamant that the accused Toi came over to see him on Saturday evening, 17 July, the day after the shooting. It is a matter for you, but you may think that he was undeterred by the statement of intention that Toi would give evidence, and witnesses would confirm, that he was in bed at that time.

Eneliko agreed that he did not tell anybody about the little gun until Tuesday of the week in which he gave evidence. Make what you will of that. Is that an indication of recent invention on his part, or was it just that he failed to recall it and mention it? Did he give a credible explanation, or did he indicate that he had made something up?

You will recall the witness Eneliko's classification of the small gun. He said it was "silver in colour and shiny". But you saw the gun, exhibit P18, and you may not think that Eneliko emerged very well from the cross-examination on that topic.

Eneliko was cross-examined by both defence counsel about an inconsistent statement given to the police to the effect that he "did not see any red Suzuki coming from Luagalau's house", whereas he mentioned, for the first time on the Tuesday of the week before he gave evidence, that he had, in fact, seen a red Suzuki. You might ask yourselves: is this a case of recent invention, or does it just show poor recollection?

Eneliko was prepared to admit, and did admit, that he made more than one - in fact, he made several - inconsistent statements. During cross-examination of Eneliko, it was established that he went to New Zealand after the death of Luagalau. He was asked why he had to go to New Zealand, he replied:

Protection, sir - to protect me.

It was then established that the police paid his fare and maintenance for food, clothing and his other needs. He said that he received $3900 (New Zealand) altogether. He said that it was his suggestion to go to New Zealand. Did this payment of money, etcetera, provide Eneliko with a motive to come back to Samoa to tell lies, or were these understandable witness protection arrangements, with no "repayment of kindness" in return?

Although I am sure you will remember that there is no obligation on the defence to prove a motive for a witness to tell lies, you may well conclude that the motive for Eneliko to tell lies is clearly established. Whilst proof of inconsistent statements of a witness may or may not lead you to reject him as a witness of truth and reliability, statements made late in the piece are, generally, by no means as destructive of a witness' credibility and reliability. Late statements may be indicative of recent invention or fabrication, but they can also be indicative of a defective or slow-to-be-activated memory.

I propose to bypass Alatise for the moment, but I now turn to Dr Buckleton, witness number 49. He, you may think, is the experienced forensic scientist from Auckland, New Zealand. Through Doctor Buckleton, the bullet fragments and core taken from the body of the deceased were tendered. And you will recall the two pieces of jacket, or copper fragments, and the one piece of bullet core, the silver lead piece. Doctor Buckleton told you about the blackening left inside a brick in the wall of the Hall at St Joseph's, and he told you that it was caused by the escape of combustion gases from the flash-suppressor of a gun. You may consider that there is really no dispute, in the end, about that evidence, nor about the fact that the gun, exhibit P8, was fired by Alatise in an upwards direction, from outside the Hall, through the wall, and into the body of the deceased.

Doctor Buckleton, a ballistics expert, identified the weapon, exhibit P8. He said that it is an Armalite AR180, semi-automatic rifle. He said that it fires 223 Remington ammunition. He said that it is the sporting equivalent of a military rifle, yet it is similar to, and was designed to compete with, the M16, the American military rifle.

The importance of Doctor Buckleton's expert evidence, which, incidentally, was not controverted by other evidence, but it has been the subject of challenge in legal submission by Mr Toailoa, is that, according to Doctor Buckleton, and because the firing pin of a rifle leaves a unique firing pin mark on the bullet casing, the bullet casing found at Alafua, and the bullet casing found in the cupboard of the house at Malie, and the bullet casing found at the cattle farm, had all been fired by the same gun.

Whilst there is no onus of proof that rests with either accused, it was nonetheless open to either accused to produce evidence, if they had wished, to answer the expert opinion evidence given by Doctor Buckleton. Mr Toailoa, on behalf of the accused Leafa, at no stage during this trial exhibited any reluctance or lack of inclination to cross-examine any of the witnesses. And he did so, if I may say so, with considerable skill on more than a few occasions. Although Dr Buckleton was much criticised in counsel's submissions, he was not asked by cross-examining counsel as to all the inner details and significance of the testing that he did do.

Whilst there is some force in the statement that he could have told us much more than he did, Dr Buckleton's position was that the firing pin marks matched. The firing pin marks on exhibit P6, the bullet casing found at Alafua; the firing pin marks on the bullet casing found at Leafa's house at Malie, exhibit P25; and the bullet casing found at the cattle farm, exhibit P12 were all "fired by the same gun".

I would be grateful if Mr Latu would check for me that my reference to P25 is right. I have a nagging feeling it might have been P26, but you can check that for me, please, Mr Latu.

You may think, gentlemen, that Dr Buckleton's evidence, if you accept him as an expert witness giving reliable evidence, establishes that a link was established between the use of the murder weapon by Alatise at Alafua; the use of that same weapon at the cattle farm; and the use by someone of the same weapon at Leafa's house at Malie. This objective evidence, this silent evidence, this evidence which is not dependent upon the honesty and reliability of a witness standing in the witness-box, provides, you might think, a link between Alatise and Eneliko, and it is evidence, as I will explain to you on Monday, that you may use, if you see fit to do so, as evidence corroborating, confirming or supporting the evidence of Alatise as to the involvement of himself and Eneliko in the plot to assassinate the Minister.

You may recall, gentlemen, that, when he was cross-examined, Dr Buckleton said, and there has been no evidence suggesting otherwise, that "the finding of a firing pin match is definitive proof that the cartridge was fired in that gun". A forensic scientist, a ballistics expert, is no more than an ordinary witness, and is to be assessed in the same way as other witnesses. But he did say, gentlemen:

I have tried to match the ammunition as well as is scientifically possible in these circumstances.

He went on to say:

The standard I have applied is the world standard, and I am a member of the Association of Firearm and Toolmark Examiners. I was trained by their ex-president. This is the world standard of how to do firearms examination. There is no doubt in my findings; those cartridge cases were fired in that firearm.

Notwithstanding the criticism levelled at Doctor Buckleton, what more could he say, and what more would you gentlemen want?

I propose, gentlemen, to break off now for the afternoon break, and, after the break, I would expect to complete the rest of the important prosecution witnesses, perhaps except, not necessarily the most important but perhaps the most notable, and that is Alatise. I expect, on Monday morning, to discuss Alatise's evidence, and the defence witnesses, all of whom are in the category of `important witnesses'.

It has been another long day for you, gentlemen, and I do expect and hope to be able to adjourn before 4.30 this afternoon. And, before we adjourn this afternoon, I will need to discuss some arrangements with you. But I do expect that I will be summing-up, still, for most, if not all, of Monday. I know that no-one in this Courtroom will stand up and criticise me for having taken longer than people might have expected, but, as I said at the outset of my summing-up, I have a duty to perform to sum-up to you; and you have, gentlemen, a duty to hear me out.

After the break we will come to witness number 50, Superintendent Salapo, who interviewed the accused Toi. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [3.06pm]

 

HIS HONOUR: Mr Registrar, would you adjourn the Court, please.

MR RAFTERY: Your Honour, just before you adjourn. Your Honour wanted a confirmation that P25 is the cartridge casing from Malie. It is.

HIS HONOUR: I was right, was I?

MR RAFTERY: Yes.

HIS HONOUR: Thank you.

 

SHORT ADJOURNMENT [3.07pm]

Eveni Carruthers "We are committed to serving you better"

RESUMED [3.28pm]

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors, please.

 

ASSESSORS RETURNED [3.28pm]

 

HIS HONOUR: Gentlemen, witness number 50 was Superintendent Salapo Faaopopo Matamu. He said he interviewed the accused Toi. According to the Superintendent, the accused Toi declined an opportunity that was given to him to contact a lawyer, and said that it was "because (he knew) nothing about the death of Leva". You may think that, as his subsequent interview with the police revealed, and as his sworn evidence in this trial revealed, that was a lie. He did know something about the death of the Honourable Luagalau Levaula Kamu.

I will be explaining to you the significance, or otherwise, of lies told by an accused out of Court, when, for example, being interviewed by the police. I say to you now that it is only in special circumstances that you may infer guilt from the telling of lies by an accused when first spoken to by the police. And this is not a case where such special circumstances exist.

Before I remind you what else it was stated by Superintendent Salapo that the accused Toi said to him in the interviews that were conducted at the police station on 3 and 4 August, I must repeat some advice and direction to you. I repeat the advice and direction that I gave to you at the time that this evidence was the subject matter of the Superintendent's testimony. I said to you then, and I say again, that the evidence of what the accused Toi may have said to the Superintendent is evidence which may use for or against the accused Toi.

But what the accused Toi may have said to the Superintendent is not evidence that you may use against the accused Leafa to draw any inference of his guilt. You cannot - you must not - use anything that the accused Toi may have said to the Superintendent as evidence against the accused Leafa. Because this aspect of the law, this concept is very simple, that is not to say that it is not important. It is a readily understandable concept, gentlemen; it is very important. You cannot - you must not - use anything that one accused may have said to the police, in the absence of the other accused, against that other accused to draw an inference of his guilt. Gentlemen, the law assumes that you, as assessors, are capable of understanding that warning and will be willing to heed my admonition.

The testimony that the Superintendent gave was to the effect that, on the morning of 3 August, at the police station, the accused Toi explained that he did not want a lawyer because he "didn't know about anything the death of the Honourable Minister." In answer to questions, Toi explained that, "Leva was a very best friend" of his, and he is "like a son". In answer to a question as to whether there was "a thing that made him angry with Leva", he replied in such a way as to provide evidence by way of an admission. And you may remember the advice and assistance I hope I provided you with in order to understand what an "admission" is.

He replied, gentlemen, by saying that he had a motive for committing a payback crime against the Honourable Minister. He did not say that in so many words, but that is an inference that is open to you to draw. The accused Toi said, according to the Superintendent:

I was unhappy with Leva when my contract with EPC was taken away.

But he went on to explain the tree-cutting contract and his talks with Leva and the Prime Minister, and his acceptance of the current situation. The Superintendent then asked him:

Do you know anything about the shooting of Leva -

to which the accused Toi replied. He replied in such a way that you might characterise his reply as a lie. You should not treat it, gentlemen, as evidence indicating a consciousness of guilt. As I will be making clear later in my summing-up, there is need for care to be taken when you consider the alleged lies of an accused person, but you should not, in these circumstances, assess what you might take to have been a lie by Toi as any evidence going in proof of his guilt. You may, of course, use it in assessing his credibility as a witness.

The Superintendent said that the accused Toi's reply was:

I know nothing about that incident.

The Superintendent said that the accused Toi went on to say that he was not at the party at which the Honourable Minister was killed, and that he was at home, ill in bed. When the police pointed out that there was evidence against the accused Toi concerning the death of Leva, and the accused Toi said that he would "like to know those witnesses", the allegations were put, directly and bluntly, you might think, to the accused Toi. You may think that the accused Toi's reply was a considered and unequivocal denial.

The Superintendent said that he said to the accused Toi, and I quote:

You gave a gun to Eneliko to shoot the Prime Minister and Levaula. You also went and pointed out the residence of the Prime Minister and Levaula to Eneliko, and it was your vehicle that was used by you and Eneliko on those occasions. And it was on four occasions that you took Eneliko to Ululoloa to carry out your intention. When that did not proceed, you removed the gun from Eneliko, and you gave it to Leafa. What is your reply to those evidence?

The reply was:

I strongly reject those evidence. I know nothing about that.

The accused Toi was then formally arrested and charged, which led to the response:

I swear to God that I did not shoot Levaula.

Upon being taken into custody, the accused Toi said that he wanted a lawyer, and arrangements were made accordingly. According to the Superintendent, the next afternoon, 4 August, and after the accused Toi's first Court appearance that morning, the accused Toi requested to see the Superintendent. A meeting occurred in the office, and the interview was recorded on a typewriter, and later read through by Toi, amended, and signed by Toi. You have that record of the interview amongst your copies of exhibits - P34A and P34B.

I do not propose to take you through that record of interview in detail. You have it there to read yourselves. All I will do is summarise the topics covered in that interview, and draw your attention to some advice that I gave you this morning as to the subject of "admissions". The topics covered in that interview, you might accept, were:

(1) Some personal details.

(2) An admission to the effect that there was a plan to assassinate the Prime Minister and Levaula.

(3) There was mention of the places where the plan was discussed, and between whom.

(4) It was recorded that he did not wish to have a lawyer present, although he had been informed to "consult one to assist him".

(5) The accused Toi asserted that he "would like to tell the truth to the police".

(6) The accused Toi indicated that he had been advised of his legal right to remain silent.

(7) The accused Toi admitted and confirmed, you might think, Alatise's evidence about a meeting at the office of the Minister for Womens Affairs.

(8) He told the police about unhappiness with Levaula being expressed, and there following some talk about a gun and shooting Levaula with it.

(9) He told the police about a later meeting at the Penisula Nightclub where there was angry talk relating to the Prime Minister. That evidence of unhappiness with, or anger towards, intended victims, is evidence which you may use, if you see fit, as showing that the accused Toi had a motive.

(10) He told the police about the man with whom he was talking - you may well conclude that that was Leafa that he was talking about, but this is not evidence that you can use against Leafa - but he told the police about the man getting his gun and $2000 (tala). You may infer that that was a reference to the intended murder weapon and money being all part of the "contract" price or "fee". The gun was described as an "M16 with magazine and bullets".

(11) The accused Toi confirmed, you might think, the evidence given by Eneliko to the effect that the accused Toi gave that gun to Eneliko, and the $2000 (tala), on account of the "contract" sum to "do the job".

(12) Toi told the police that Eneliko accepted the money and the gun and said "Okay".

(13) An admission, you might think, that he told the police was that he told Eneliko to "shoot the Prime Minister first and then shoot Levaula".

(14) There followed an account of how he (Toi) took Eneliko two or three times to show him Levaula's house, and twice to show him the Prime Minister's house.

(15) The accused Toi explained the events and movements, so you might conclude, when Eneliko `cased the joint', to use the language of some criminals, checking out the lie of the land.

(16) The accused Toi told the Superintendent of Eneliko's delay, or failure, in "completing the task (of) shooting the Prime Minister and Levaula". You may conclude that what Toi was saying to the Superintendent was that, by inference, Toi's impatience was mounting.

(17) The accused Toi told the police that he told Eneliko to bring the gun back. He also said that he, Toi, had been "urged" to "have" and "get the gun back".

(18) The police were given an account by the accused Toi of how he went to Eneliko's house and got the gun from a girl at the home of Eneliko. He said that Eneliko was not there at the time, but that he took the gun to his home at Vaimoso, where he left it.

(19) The accused Toi then described to the police how his "partner" came to him one day and took the gun from him. He told the police what was said by the "partner" and how he, Toi, was described by him, the "partner", as a "coward shit, because you can't do it, can you?"

(20) It is entirely a matter for you, but you may think, as you analyse this evidence of what the accused Toi is alleged to have said to the police, that there was a change which came over him. I am referring to a change that you might read into this evidence, which came over him arising from his recounting his actions, his conduct, in "getting the gun" from Eneliko and "giving" it back to its owner.

(21) He went on to describe his talk with the Honourable Luagalau "Levaula", and his wife, Kota, and a visit to the Prayer Centre at Mount Vaea.

(22) He then told the police, whether truthfully or not is a matter for you:

We talked, and we were all happy together with Levaula and his wife, and I love Levaula more than anybody.

(23) There was then mention of what you might think of was talk of reconciliation with the Prime Minister over the tree-cutting contract.

(24) According to the police, the accused Toi then described the gun.

(25) There was then mention again about "anger towards" the Prime Minister, but reconciliation intertwined, with some pointing out by the accused Toi of the lack of "accomplishment" of his (the Prime Minister's) death.

(26) The accused Toi concluded his statement to the police with his assertion (forceful, you may think) that he was sick at the time when the Honourable Luagalau died. It is a matter for you, but you may think that he was there distancing himself - whether with justification or not is for you to reflect upon - from the party where the assassination occurred; distancing himself also from knowledge of what happened on that night, and distancing himself from the gun which he asserted he had "never seen again", after he had given it back.

(27) Finally, the final words of his statement were as follows:

I felt very depressed yesterday, when I had not told the truth to you -

the police -

because of the temptation. Now is the time I feel that I should tell the truth. This is my statement regarding this matter, and it is correct.

The next few witnesses I can deal with quite briefly, gentlemen. Witness number 53 was Fuaupu Letufuga, the second secretary to the Minister for Womens Affairs. She told you that she worked for the accused Leafa when he was Minister. She told you about the arrangements that were made when Leafa hired a rental car, a red Suzuki Sidekick, and you have oral evidence of witnesses and some documentation about that.

The evidence of this witness, Upu, regarding Leafa's link with that red Suzuki, together with other evidence, if you accept it, may be treated by you as some circumstantial evidence. It may be treated by you as circumstantial evidence tending to confirm or support Eneliko's evidence about having seen a red Suzuki near Luagalau's house when he (Eneliko) was `casing the joint', as I put it, and as some circumstantial evidence tending to confirm or support Alatise's evidence, in the end, about having driven with his father to `case the joint'. There has been talk today by me of a `bullet casing link'; the red Suzuki provided, you might think, a `motor vehicle link' between what Eneliko was doing and what Alatise was doing. And, in the case of Alatise, he was doing it with Leafa at one stage, in that period shortly before the Honourable Minister was shot.

The witness Fuaupu gave some evidence on another topic. She told you about seeing, in about April last year, a thing that "looked like a gun" inside the Minister's personal office. "It was wrapped in cloth. It was black and the mouth was sticking out. It was 2 to 3 feet long." The mouth was about the length of her forefinger, two sections of the three sections of her forefinger, approximately 2 inches. That evidence is evidence which, if you accept it, and if you are minded to conclude so, supports or confirms other evidence as to the possession by Leafa of the murder weapon or a gun that looks like it.

Upu also gave some evidence about the accused Leafa, when angry with her, asking her whether she had a small gun he was looking for. I will be speaking to you about corroboration, support or confirmation, of evidence of a witness such as Alatise. I expect to do that on Monday. But that evidence, if you accept it, may lead you to infer that, besides the big gun, Leafa owned a small gun. That is some evidence which you could treat as corroboration confirming Alatise's evidence that he was offered, by his father, a choice between a big gun and a small gun.

Through this witness, Upu, was tendered quite a large number of bank documents, from which you might infer that the accused Leafa had access to moneys, and sufficient moneys at that, to pay the "price" or "fee" for Eneliko doing the job he said that he was "contracted" to do.

Upu also testified to having heard an instruction, given by the accused Leafa to Aniseko, on the afternoon of Friday, 16 July last year. The instruction was for Aniseko to "go and get and bring Alatise to this office". That is evidence which you may consider is significant evidence as against the accused Leafa. You may only use it as evidence against the accused Toi if, as I have explained before, you are satisfied beyond reasonable doubt that there was a plot or joint enterprise, and that this was said in furtherance of that plot.

You may recall that Fuaupu agreed, in fact she volunteered, that she gave four statements to the police. It is a matter for you as to whether you consider that the material in the later statements was the truth and represented things that she simply had not been asked about previously, or had not previously recalled, or whether, on the other hand, they were untrue and were instances of recent invention on her part, or something else. You may be inclined to ask yourselves these questions: If Upu had in mind to "frame" her previous boss and tell false things about him, would she not have claimed to have seen much more than "the mouth" of the gun in the Minister's office. Was not her testimony the recollection of an honest person having little awareness of whether her testimony would help or hinder her previous boss's case in this trial? Or were these the purported recollections of a liar, who made up lie after lie after lie, as each statement was given to the police? By all means reflect upon those questions, but remember, there is no onus (or burden) of proof to establish a motive to lie that is on the defence.

I like to think that this trial judge still has a little humanity left in him! I propose to stop now! Stop now, to be continued on Monday at 9 o'clock, 9 am. I remind you to still keep an open mind and not to discuss the evidence, or this trial, with anybody other than yourselves.

I ask the Courts Officers to listen as I speak to you gentlemen assessors about the arrangements for Sunday evening.

Pursuant to section 103 of the Criminal Procedure Act, I order that, upon this adjournment of the Supreme Court, and in the exercise of my discretion, that, during this forthcoming adjournment, between now and Monday next at 9 am, the assessors shall be kept together, commencing as from between 5 pm and 6 pm on Sunday next. And I further order that proper provision be made for preventing the assessors from holding communication with anyone on the subject of the trial.

The arrangements, gentlemen, that have been made and will be put into place, which the Courts Officers responsible for you are aware of, are these: your transport will collect you, at your respective places of residence, sometime between 5 and 6 on Sunday. I suggest that you pack a small bag containing your personal items of comfort and clothing and toiletries and that sort of thing. This might seem strange coming from a Judge who has little time to read books other than law books - I suggest, gentlemen, that you might pack, if you read, one or two or three books. I say that, gentlemen, because you will have no access, from the time you arrive at your place of accommodation until you are released finally at the end of this trial by me, to television, radio, video, newspaper or telephone.

I do not wish to be harsh upon you, but if that section of the Criminal Procedure Act means anything, it means what I have just said, and I feel certain, gentlemen, that you will, at this late stage in the trial, respect and honour the arrangements that have been made in the same way as you have, in all other respects, been true to your oaths hitherto.

One arrangement that has not been made thus far, I think, but I ask that it be made while you are hearing me talk, is that the telephone number of my Registrar be given to your foreman, so that if any problem should arise whilst you are accommodated during the final stages of this trial, you at least have somebody to contact, and you may do that by your foreman making that phone call, which he will be allowed to make.

You will be staying in comfortable surroundings, but the proprietors of that accommodation house will be told that, if you have a problem that you need to discuss with me, or with the Registrar, then you will have that means of communicating with Mr Masina. The only matters that you will be permitted to discuss with the proprietors will be such matters as food or beds or toilet paper, or the like.

Many of the hopes and expectations as to timings that have been expressed during this trial have not been met, and the program has had to be extended from time to time. I would hope that I could send you out to the assessors' room to deliberate, to consider your verdicts, some time late on Monday, but I rather think it will be some time on Tuesday. My expectation is, gentlemen, that you will be accommodated at the place on Sunday night and on Monday night, and even longer if necessary.

Is there anything further that counsel thinks that I should put to the assessors at this stage?

MR RAFTERY: No, your Honour.

MR TOAILOA: No.

HIS HONOUR: Well, gentlemen, I expect (and hope and look forward) to be seeing you on Monday morning at 9 o'clock. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [4.27pm]

 

HIS HONOUR: Mr Registrar, would you please adjourn the Court until

9 am on Monday next.

Eveni Carruthers "We are committed to serving you better"

ADJOURNED UNTIL 9.00 AM,

MONDAY, 10 APRIL 2000 [4.28pm]

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