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[COUNSEL TO HIS HONOUR]

 

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

 

ASSESSORS RETURNED [9.39am]

 

HIS HONOUR: Gentlemen assessors, the late start is regretted, and thank you for your patience. There are, however, one or two matters that I do need to discuss later with counsel, and, partly on account of that, and partly on account of my assessment of what yet has to be discussed with you, I can tell you that you will not be asked to retire to consider your verdicts today.

Late on Friday afternoon I had been discussing with you the evidence given by Upu. I now turn to a consideration of Frances Brebner. She told you that she works for the Health Department, but had previously worked with the Treasury Department. She testified as to what she said she saw during an EPC Board meeting in late 1997. She said that she was in attendance, deputising for somebody else from Treasury. She gave what you might consider was some startling evidence; startling, because, if you accept it, it had implications as going in proof of the possession, and perhaps ownership, by the accused Leafa of a gun; startling, perhaps, you might think, because of her description of it as a "wicked-looking gun". Or was it startling because it was too incredible a story to be true? At any rate, Frances Brebner maintained that what she saw was similar to exhibit P8. She gave evidence of the accused, Leafa's, bad character in contrast with the evidence of good character extracted from Alatise when he was being cross-examined by Mr Toailoa. Although I use the words "bad character", she was really asked to comment on his reputation said by Alatise to be that of a "God-fearing man who disapproves of violence". Her comment was, "From what I recall, he was more a man to be feared, forceful, not an easy man to say `no' to".

You will recall that, when that evidence was given, I advised you of the limited use to which you may put that evidence, namely, in assessing the accused, Leafa's, credibility, and I advised you of the use to which you may not put such evidence. You may not use that evidence as showing a propensity to commit crime and, therefore, the likelihood that he committed this crime, the one with which he is charged. I will be saying more about this topic later. Now, Frances Brebner agreed that she only gave a statement to the police the week before she gave evidence. You can take that fact into account when assessing the honesty and reliability of her testimony.

Witness number 57 was Mohamed Laulu Dan Stanley, the former member of the Board of the EPC. He recalled a meeting of the Board in late 1997 when, after returning from the bathroom which he had visited during the Board meeting, he saw an assault rifle. "It looked like an M16 assault rifle", were his words. "It was leaning towards the wall close to the Chairman's seat". He later said that he was quite certain that what he saw was an M16 in appearance. When he was shown exhibit P8, he said:

It looks similar.

He later said:

I cannot confirm whether P8 was actually the gun that was in the office at that meeting.

The occasion was sufficiently unusual for Mr Stanley to make a comment concerning it, he said. Mr Stanley did agree, when under cross-examination, that he had described it in his witness statement given to the police as "dark jungle green". You would do well to ask yourselves whether this previous inconsistent statement is such as to lead you to disbelieve him altogether, or, rather, just to place little weight upon his testimony as to its colour.

Witness number 58 was a man with a very long name: Tupu Penieli, another matai from Saina. He confirmed Lauaki Iosefa's evidence about seeing Eneliko driving off with the accused Toi in his blue Jeep at about 5.30 to 6 pm on Saturday, 17 July last year.

Witness number 59 was Sa Ropeti, the writer, or journalist, for the Samoa Post newspaper. He testified as to having seen, on 6 May 1998 - a little more than a year before the murder - after 12 noon, in the office of the Minister, Leafa, a "big black gun". He said that the accused Leafa showed it to him. He said that he was also shown a double gun holster with two small guns inside.

In the light of the evidence admitted by the accused Leafa about there being a holster there in any event, ask yourselves whether that evidence from Sa Ropeti was just a mistake, and, if not, does that indicate a lack of credibility in his evidence? As far as the "big black gun" was concerned, you may remember that Sa Ropeti described it as having a shortened butt. He said that the mouth of the gun had holes around the mouth. It had a clip or a magazine. It had a telescope. He went on to say that it had all the appearance of the gun shown in photographs 15 and 16 of exhibit P4, the booklet of photographs.

When shown the actual gun, exhibit P8, he was asked in examination-in-chief, "Is your comment the same about it now that you see the gun?", and his answer was, "Yes". You may or may not remember that when the witness, Sa Ropeti, was cross-examined by Mr Toailoa for the accused Leafa, it was suggested to the witness that he only had one meeting with the accused Leafa on the day mentioned, and he went on to say that it was in relation to a request made for a government flat for himself and his family to live in. The witness, Sa Ropeti, told you that he had visited the Minister's office on numerous occasions, not just the one or two that he was talking about. He said that the matter of the government house was not discussed on the day. He, the Minister, had earlier gone to the office of the Samoa Post.

I am sure you will probably have forgotten, but in my general advice and direction to you at the commencement of this trial I explained to you that re-examination consists generally of questioning `to clear up anything that may be left up in the air', so to speak. Mr Raftery, one of the prosecuting counsel, asked the witness, Sa Ropeti, in re-examination why he, Sa Ropeti, had gone to the accused, Leafa's, office on the afternoon of 6 May 1998. And you were told - whether you believe it or not is a matter for you - that the accused Leafa asked whether Molesi "was scared". And then, whilst showing the `big black gun' and other guns to Sa Ropeti, Leafa said, "This would be the result of a person that lies, a bullet splashing the forehead." The witness Sa Ropeti went on to testify that the accused Leafa said, "For any other journalist that would write an article about (himself) or about (his) family, the Sa Malietoa family at Malie, (he) was going to pay someone to put a bullet in that person's head. And then (he) - Leafa - will carry the punishment while that person that did that would be free." The witness Sa Ropeti said that there was no discussion between him and the Minister on that day, 6 May 1998, about a government flat for Sa Ropeti and his family.

I remind you, gentlemen, of the advice that I gave you at the time that evidence was given: that advice and direction still applies. You must not use that evidence as showing any propensity or habit on the part of the accused Leafa to behave improperly, or to conclude, from improper behaviour, that he is the sort of person that is likely to threaten to shoot someone who crosses him, or is the sort of person who is likely to pay someone to murder someone who upsets the accused Leafa. You should not use such evidence as evidence of the accused Leafa's guilt of the offence of which he is charged. You may only use that evidence of Sa Ropeti, if you believe and accept that evidence, when assessing the credibility of the accused Leafa and the honesty and reliability of his testimony as a witness. It is not even evidence that you should treat as character evidence.

Witness number 61 was Constable Ututau Pasese, from the Traffic Section. He testified to having, from the bus he was travelling on, observed the accused Leafa and the accused Toi in one another's company and waving to one another, on the day following the death of the Honourable Luagalau, at the accused Toi's home at Vaimoso. The constable acknowledged, when being cross-examined by Mr Epati, that he could not remember the bus he had caught on that particular day, or its features, including its colour. He could not remember the name of the bus, or the driver, or any fellow passengers.

He could remember that the destination shown on the bus was Leauva'a, a village beyond Malie. That is the village where the constable lives, he said, and where he was travelling to. You will, no doubt, take into account that evidence when assessing whether the witness' purported memory of having seen the two accused on that day was an honest memory, and one that can be relied upon. You will also remember the advice I gave you earlier about the need to take special care in assessing the evidence of a person who purports to have recognised someone at a particular time and place.

The constable admitted that he did not make a statement to the police - a written statement to the police - about his observations, until two days before he came to the witness-box. He explained how it came about that he had not given a statement before then. You may recall that he told you that he had spoken to Sergeant Solomona Leavasa about what he had seen about a week after the arrest of the two accused, but he told you that he had not been asked to make a note or a report to anybody else.

You may take all that into account in assessing the truthfulness and accuracy of the Constable's evidence, and in deciding whether or not the Constable's evidence was a matter of recent invention on his part, or otherwise not to be relied upon. If you disbelieve the Constable, or if there was a reasonable possibility that he was not giving the Court truthful and accurate testimony, then you must reject his evidence. The Constable acknowledged, when being cross-examined by Mr Toailoa, that he did not sign the time book for the work he said he did on that day, 17 July. He said that he did not sign it, either on the day he did that work or on any day thereafter.

If you accept that evidence, and there was none to the contrary, then you may conclude that there is no support or confirmation for the Constable's word that he did work that day. There is no rule of law or practice which says that the evidence of a witness like Constable Ututau Pasese must be supported or confirmed before you can believe and rely upon it. But, had there been such support or confirmation, you could more readily accept it.

The Constable acknowledged that, in his statement to the police given only two days before he was in the witness-box in this courtroom, there is an inconsistent statement, that is to say that, in his statement to the police, it is typed that he saw:

a green van driven by Aniseko with Leafa riding in the front, and was reversing to the main road. And then I saw Toi waving, and, likewise, Leafa waving.

whereas in his testimony in this courtroom, he said that he saw:

Leafa standing outside the van, and he was waving back to Toi who was, at the same time, waving at him.

However, the Constable stated that he did not read his statement before he signed it, and that he did not want to read it, and that he supposed that his statement must have been mis-typed.

It is a matter for you as to whether you accept that explanation, as indeed it is a matter for you as to whether you believe or consider it reasonably possible that the young Constable made up that evidence against the two accused. You might think, gentlemen, that, if that Constable was going to fabricate testimony to incriminate the two accused in the form of a false sinister-looking post-murder meeting by two of the alleged co-participants, he would have embellished it rather more than his seemingly mild and matter-of-fact testimony suggests. I remind you to take care in assessing Constable Ututau Pasese's evidence. Police have been known to fabricate evidence.

The last witness of the prosecution to which I must make reference is, of course, the `important witness', Alatise.

I first want to say something more to you about the subject of lies. I have told you already something about evidence of lies and how it is important to remember that lies may be told for a variety of reasons. The way in which lies of either accused may be used, if you accept that one or either of them told lies, is in assessing the credibility of the person who has told a lie or lies. You may not use the lies of either accused, if you are satisfied that he told them, as any evidence of guilt, or as adding anything to the prosecution evidence against him, and you may not use evidence that either accused told lies even as confirmation and support for other evidence. You may not use the lies of either accused as links in a chain of proof or strands in a rope of proof. You may not use lies of either accused as direct or circumstantial evidence going in proof of their guilt.

Of course, even before using a lie in assessing the credibility of the person said to have told a lie, you must be satisfied, firstly, that the lie was told; and, secondly, that it was told deliberately. It is then, and then only, that you may use it in assessing the credibility of the accused in question. This is really just a matter of common-sense.

Gentlemen, to jump to the conclusion that an accused who has told lies must be guilty is something that is forbidden. The prosecution has not, in this case, attempted to use the lies of either accused, if you conclude that he told one or some, as anything more than an aid to you in assessing his credibility as a witness. The prosecution has not, in this case, attempted to use the lies of either accused as anything more than as an aid to you in your decision as to how much weight to give to his word.

I move from that discussion of lies, and, in particular, any lies told by the two accused, to a consideration of a man who has told many lies. Counsel for both accused have correctly emphasised that the witness Alatise told some lies to the police, told some lies in this courtroom, and admitted as much to you. The competing contentions regarding Alatise are, I think, clearly before you. The prosecution says that Alatise told lies to the police in the beginning because he was a murderer being investigated, and he wanted to avoid detection and apprehension. He told lies in an attempt to save himself from arrest and having to face a murder charge. He told lies because of a realisation of guilt on his part and a fear of the truth.

The prosecution then says that, on 30 July 1999, he gave to the police his 46-page statement in which he, says the prosecution, told the truth. That 46-page statement is not in evidence, is not an exhibit, but much of its contents have been the subject of other evidence. The prosecution then says that, notwithstanding a series of occasions when he, in the presence of prosecuting authorities, reaffirmed the story - the true story, says the prosecution - contained in the 46-page statement, when he came to the witness-box to testify, he told lies. The prosecution says, in effect, that Alatise firmly resisted the suggestion that he had done `an about-face', because of a sense of loyalty towards his father in particular. The prosecution says that he was `covering' for his father, and he did so for six days, until he `broke down' in the witness-box. Even then, whilst he implicated his father and Toi, he manifested the signs of a man who was in mental turmoil. It was contended that he was a man torn between his love for his father and the need to tell the truth. And he then told it, the truth, says the prosecution.

Mr Toailoa obtained some evidence from Alatise to the effect that the main two forces that were impacting upon him were his love for his father on the one hand, and his love for his wife and children on the other hand.

The prosecution argued that Alatise told the truth in the end, by and large, but, in doing so, he set himself against accusing his father and his family of themselves being liars. Implicit in that stance by the prosecution was the contention, as I would understand it to be, that to implicate his father and Toi in the murder was one thing, and that was something that he had done in the end after much soul-searching, but to have to call his father a liar, directly and without reservation, was something else, and it was something that he was not going to do.

On the other hand, the defence, that is to say, the accused Leafa and the accused Toi by their counsel, say that Alatise told lies to the police from the very beginning, perhaps in an attempt to save himself from prosecution, so to speak, but then he told the police a story which was pretty much the truth. The defence says that the story he told to the palagi police, and which is said to be set out in a 46-page statement, was a made up story or a manipulated story and he was, in a sense, forced to adopt it as his own.

The defence says that the story Alatise was telling in the witness-box at the beginning was based on the last story told before the statement given to the palagi police. It is implicit in the case of each accused that the story Alatise eventually told in this courtroom, after the emotional occasion here on Tuesday, 22 February, was a series of false accusations and allegations of a son against his father and his father's friend. It was an attempt to `frame' them, the two accused.

In any event, the defence on both sides argues that so many lies had been told by Alatise, and admittedly told, and told to you in the course of his testimony on oath, and on various occasions affirmed by the use of the name of God and Our Lord Jesus, that you could not safely believe and/or rely upon anything Alatise said.

Gentlemen, it is entirely a matter for you as to how you see the lies that were told, and which of the evidence you see as representing the truth, if any does. If you cannot tell which of Alatise's stories is the truth, or if you think it is reasonable possible that he did not tell the truth in the end, you must give the accused the benefit of the doubt.

The reason for a witness telling lies, and then ultimately telling the truth, may be satisfactorily explained or accounted for, or it may not. Unless it is satisfactorily explained or accounted for, you should treat Alatise's evidence with very great caution.

Gentlemen, you will have noticed that the prosecution was allowed to cross-examine the witness Alatise, whom the prosecution had called as a witness. Such a course is unusual. Generally speaking, the party who calls a witness is not allowed to ask questions about matters in dispute which suggest the answer to the witness. This is the essential difference between what is called "examination-in-chief" and "cross-examination". However, in some cases, the trial judge has a discretion to permit a party to cross-examine their own witness. In this case I allowed it to be done in the case of the witness Alatise.

There are two things I wish to say about that. The first, the fact, that Mr Raftery, on behalf of the prosecution, exercised the right that I gave him to cross-examine the witness Alatise, indicates that the prosecution does not put the witness forward as a witness of unqualified truthfulness. The prosecution puts that witness forward as one from whom the truth must be extracted, if at all, by cross-examination.

Secondly, you should bear in the mind the attitude of the prosecution to the witness Alatise in the beginning and the fact that I allowed the cross-examination. You should bear in mind the days and days of resistance on Alatise's part, all on oath, to what was being suggested to him by the prosecution before he `broke down'. The prosecution implies that he did `break down' and you may conclude, if so minded, that he did. Mr Toailoa described it as `ceasing to be hostile'.

However one describes what happened on 22 February, Alatise adhered himself to a story that he had given to the police on 30 July 1999. He adhered himself to a story that is set to be set out in a 46-page statement. You should bear in mind the respective attitudes of defence counsel to Alatise when, after that breakdown, as it might be called, or the time when Alatise became non-hostile. I wish to make it clear that I am referring to Tuesday, 22 February when Alatise was brought to tears and emotionally asked his father for forgiveness for what he was about to say.

Having said what he had to say, each of the two defence counsel cross-examined the witness Alatise. You may think that neither of them - that is to say, neither Mr Toailoa nor Mr Epati - had much success, in terms of getting the witness to adhere to one of his earlier stories, and you may think that neither had much success in getting the witness to adhere to any story other than the one you might think he told so dramatically in this courtroom on that morning.

Gentlemen, it is for you, in the long run (and it was a long run - six days in the witness-box) to determine the reliability of the evidence of the witness Alatise. It is not for Mr Raftery to determine his reliability. It is not for any people in the prosecution team to determine the reliability of his evidence. It is not for the police to determine the reliability of his evidence. It is not for either of the two defence counsel to so determine. It is not for me, at this stage, to determine the reliability of the evidence of the witness Alatise. That, gentlemen, is a matter of fact, and it is, therefore, a matter for you.

We will break off now, gentlemen, for the morning break, and I will complete what I want to say about Alatise when we return from the break.

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

ASSESSORS RETIRED [10.48am]

 

HIS HONOUR: Adjourn the Court for the morning break, please, Mr Registrar.

 

SHORT ADJOURNMENT [10.48am]

 

RESUMED [11.14am]

 

HIS HONOUR: Gentlemen, I have received another application from a branch of the media which will also be considered at 12 o'clock.

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

 

ASSESSORS RETURNED [11.14am]

 

HIS HONOUR: Gentlemen, you will remember that, in the course of the testing of the witness Alatise under cross-examination by defence counsel, it was put to him that he had made several statements before the trial which were inconsistent with the evidence he was then giving. I have directed you more than once about the use to which you may put such statements and the contents thereof. Contents of such statements themselves are not evidence upon which you can act, unless they have been assented to by the witness. Indeed, none of Alatise's several statements have been tendered as an exhibit and placed before you, but some of the contents thereof were put to him, to which he assented.

Some portions of the contents of his several statements were put before you by Mr Raftery when he was cross-examining Alatise during those six days, in order to cast doubt on the reliability of the evidence which Alatise was then giving in Court. Some portions of the contents of one of his earlier statements to the police was put before you by Mr Toailoa when he was cross-examining Alatise on Tuesday afternoon, Wednesday and Thursday following the `turn-around' by Alatise. The purpose was, no doubt, to cast doubt on the reliability of the evidence which Alatise had ultimately giving in Court, just before the questioning by Mr Raftery came to an end.

Gentlemen, you have to decide whether you can accept any part of the evidence Alatise has given in Court, and, if so, which part. That evidence for your assessment includes any earlier statements which he has made, but only insofar as he adopted them and said that they, or parts thereof, were true.

If you were to take the view that there is serious conflict between the evidence he finally gave in Court and his earlier evidence in Court, and between the various lots of evidence he gave in Court and statements previously made by him, you might think that you should reject his evidence altogether. Although I say that you might think that you should reject his evidence altogether, I do not say that you must reject his evidence in Court. You see, murderers; convicted criminals; persons who have told lies, persons who have admitted telling lies, witnesses who have persistently and with determination told lies in the courtroom before `the eyes of the Court', so to speak; hostile witnesses, accomplices, may still tell the truth in certain situations.

Of course, you would need to take care with the evidence of a person who might fall into one or more of the categories I have just mentioned. You should, naturally, be reluctant to accept his evidence on a particular topic if it is unsupported or unconfirmed by other, independent, testimony. But, gentlemen, it is open to you to believe that part of his testimony which, notwithstanding the need for caution, you believe represents the truth. If you accept Alatise's explanation for the change in his testimony, and for him having told lies to the police, and having told lies in this courtroom, then you can act upon his subsequent testimony; but, provided that you approach his evidence with caution.

You have heard counsel seek to analyse the evidence and the testimony of Alatise, in particular. He is certainly an important witness, but he is by no means the only important witness, and he is not crucial to the prosecution's prospects of obtaining a conviction. Whilst you can, and should, take account of all the submissions that have been made to you, I tell you that there is no obligation upon you, at law, to regard Alatise's ultimate evidence as unreliable. Whilst you may treat Alatise's credibility as having been totally destroyed, there is no requirement that you do so.

I must now say something to you about Alatise, the man of bad character. In the course of giving his evidence it emerged that Alatise has a regrettable personal background, both generally and in relation to convictions for a variety of criminal offences. You will recall the evidence about gangs, drugs and convictions. All that evidence was elicited to assist you in determining the witness' credibility, or lack thereof.

There are two aspects of that evidence to which I must make express reference. The first point to be made is this; you may think that it is a little short of a tragedy that a person such as Alatise should have led such a wasted life, and also should have been exposed to the lifestyle and environment to which reference has been made. I am here referring to his time in Hawaii and Los Angeles on mainland USA. You may also have experienced feelings of revulsion and abhorrence concerning the background and activities of Alatise.

It is important, as I reminded you at the outset of my summing-up, that you avoid emotional responses such as sympathy and prejudice that you might otherwise have experienced in this trial. It is essential that you consider all the evidence given, including that of Alatise in the beginning, in the middle, and in the end, in a dispassionate, objective, and clinical fashion. To do otherwise would be to run a serious risk of promoting injustice. I am speaking of the risk of promoting injustice - either to the two accused on the one hand, or to the prosecution representing the public interest on the other. You, gentlemen, as "men of Samoa", will know, from your own experience of life, that it is the situation that honest persons of prior good character can tell lies, and dishonest persons of prior bad character can tell the truth.

The situation is that Alatise is a key person in all the circumstances. After all, he is the admitted assassin, the convicted murderer, and the one who pulled the trigger. Although he is not the only witness, he is in a position to throw light on some of the issues in this trial.

So the second point to be made is that you will need to take into account the significance of the evidence of Alatise's bad character when assessing his credibility as a witness. You will need to take into account the significance of Alatise's bad character when deciding whether any of the evidence he gave was truthful, and, if so, which part thereof was truthful. You are entitled to take the view that the bad character of Alatise requires caution to be exercised in deciding whether or not to accept any part of his evidence. Common-sense requires that any part of his evidence that you are minded to accept should be subjected to careful scrutiny. You ought not to act upon it unless you are totally satisfied as to its accuracy.

In making your assessment in this respect, you should, I suggest, pay particular regard to aspects such as these:

(1) You should pay particular regard to the demeanour of Alatise in the witness-box; and, although it is a matter for you, you may well conclude that his demeanour changed, and his demeanour was different at the various stages of his time in the witness-box.

(2) You should pay particular regard to how he stood up to the test of cross-examination; first, at the hands, so to speak, of Mr Raftery, and he, Mr Raftery, was permitted by me to cross-examine this prosecution witness, as I explained. You should pay regard to how he stood up to cross-examination and the hands of Mr Epati, for the accused Toi; and, finally, at the hands of Mr Toailoa, for the accused Leafa.

(3) You should pay particular regard to whether the evidence he gave at a particular stage was inherently plausible, or had the ring of truth about it.

(4) You should have regard to the extent to which the evidence you did think was plausible is consistent with other evidence of objective facts which you are prepared to accept. That was the fourth matter to which you should have regard.

And finally - this is not a complete list; you may think of other matters that are of importance -

(5) You should have regard to the general background of Alatise as to honesty.

Gentlemen, if you approach your task of assessing Alatise as a witness in this manner, you will be led to certain conclusions as to the credibility of Alatise, I feel sure, and you will be led to certain conclusions as to whether you are prepared to accept any portion of the evidence given by him as constituting proof.

I must now give you a warning about the evidence of accomplices. And you will come to see, very shortly, that I have not yet entirely finished with Alatise.

An `accomplice', which is a legal notion, is a person called by the prosecution as a witness who was a participant, or intended participant, either alone or with others, in the crime of murder charged against the accused, or in the crime in which the accused themselves are alleged to have participated, in this case the murder of the Honourable Luagalau. According to his own testimony given ultimately against the two accused, the witness Alatise was their accomplice. It is open to you, therefore, to be satisfied that he should be treated as their accomplice.

According to the evidence of the witness Eneliko, he too was an intended participant in the crime of murder of the Honourable Luagalau and he too, therefore, by virtue of that evidence and other evidence that was placed before you, is capable of being seen by you as an intended accomplice of the two accused. The essential difference between Alatise and Eneliko, though both may, at law, be seen as actual or prospective accomplices, is this; Alatise was, according to his own evidence by way of an admission and otherwise, the principal offender, the one who actually murdered the Honourable Minister, whereas Eneliko was, according to his evidence, a person who did not complete that task.

In the language of the underworld, Alatise was, according to his testimony given in the end, the hit man who succeeded in eliminating one who was on the hit list; he thereby fulfilled the contract that was out on the deceased, whereas Eneliko got cold feet and, though employed as a hit man for a contract fee, did not himself eliminate, or hit, any of those who were on his hit list; neither the Prime Minister, nor the Honourable Luagalau, nor the Chief Justice.

Gentlemen, experience in the Courts has shown that the evidence of accomplices can be unreliable. Accomplices often have interests of their own to serve by giving false testimony. They may wish, out of malice, to implicate others. They may be seeking to shift the blame, or part of the blame, for the wrong-doing onto others. If they do not receive what, to them, was sufficient payment for what they were asked to do or for what they had done, they may make false accusations. They may be seeking to curry favour with the authorities in order to improve their own situation or the situation of those near and dear to them. Evidence from a person who has, himself, been involved in the crime actually committed, or who was about to be involved in the crime or crimes actually contemplated, comes from a tainted source. The evidence of any person with an interest of his own to serve by giving false evidence may be contaminated.

If, as I imagine you will, you see Alatise and Eneliko as accomplices, then I warn you that it is dangerous to convict on the evidence of an accomplice unless that evidence is corroborated (confirmed or supported) in a material particular. Corroboration, in a trial like this, is evidence from a source independent of the witness to be corroborated, which implicates the accused in the crime charged by tending to show that he was a participant therein, that is to say, tending to show his connection with the crime charged. Where there are two accomplices, one accomplice may corroborate another, provided that there is no suggestion - and none was made here, nor does it as a matter of common-sense arise - that they concocted a story together.

There is nothing technical in the idea of corroboration. When, in the ordinary affairs of life, one is doubtful whether or not to believe a particular statement, one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter. The better it fits in, the more one is inclined to believe it. The statement in question is corroborated (confirmed or supported) to a greater or lesser extent by the other statements or circumstances with which it fits in. The essence of corroborative evidence is that it confirms, supports or strengthens other evidence, in that it renders that other evidence more probable. Corroboration may be by circumstantial evidence. Circumstantial evidence, as I will explain to you later, is evidence which proves, or tends to prove, a fact or set of facts from which an ultimate fact to be proved may be inferred.

It is my duty to direct you, as a matter of law, as to whether there is any evidence capable in law of amounting to corroboration (confirmation or support) for the evidence of Alatise, in particular, and also in the case of Eneliko. I tell you, gentlemen, that, notwithstanding what was put to you by learned defence counsel, there is, in the case of both Alatise and Eneliko, such evidence which is capable in law of amounting to corroboration. I will direct you later to that evidence. It will be for you to determine whether you accept that evidence as truthful and reliable; and whether, if you do, it does, in fact, corroborate (confirm or support) the evidence of the accomplice in question. This is also a matter of common sense, but, if you find that there is corroboration (confirmation or support) it will still be necessary that you examine the evidence of the particular accomplice with care.

Bearing in mind the warning that I have given you, you should not convict either accused on the evidence of an accomplice unless satisfied beyond reasonable doubt as to the guilt of the accused whom you are considering. The evidence of the accused Toi, a co-accused, if you accept it, implicates the accused Leafa in a number of respects, and I will be explaining this to you this afternoon; he implicated the accused Leafa as to a plot to kill Luagalau and the Prime Minister, as to the provisions of money, 2000 tala, and as to the provision of a gun, and in other respects. In yet other respects, the accused Toi supports the accused Leafa, and especially with regard to his denial that there was any meeting in Leafa's office when Leafa, Toi and Alatise were present, and with regard to his denial that either Leafa or Toi incited Alatise to murder Luagalau.

Gentlemen, clearly you may conclude that a co-accused has a special interest of his own to serve by giving false evidence implicating his co-accused. Clearly, you may conclude that a co-accused has a special interest of his own to serve by seeking to `shift the spotlight', so to speak, onto him, his co-accused. I tell you that there is need for special care and some caution in considering a co-accused's evidence. The same advice and direction applies in reverse; if you are considering any of Leafa's evidence which implicates Toi.

You may think that there exists tension between the two accused. You may think that `there is no love lost' between the two former political colleagues who may or may not have been friends. If that be your finding, that `there is no love lost' between these two men, then the need for the special care of which I have been speaking is the more important.

There is one final topic before I adjourn the Court for the luncheon break, because, immediately after lunch, I propose to discuss with you the evidence given for each accused; the defence case for the accused Leafa and the defence case for the accused Toi.

And I will be directing your attention this afternoon to a number of respects in which it was alleged and suggested and implied by each of the two accused that prosecution witnesses were telling lies. And the question arose, on more than a few occasions, as to whether any particular witness had a motive to tell lies. I direct you, gentlemen, that even if you reject the motive to lie put forward by an accused, that is to say, the motive for a prosecution witness to lie put forward by an accused, that does not mean that the witness is necessarily telling the truth. Even in that event, the prosecution must still satisfy you that the witness is telling the truth. The onus (or burden) of proof still rests with the prosecution.

A motive to lie, on the part of a witness, where it does exist or where it is reasonably possible that it exists, is a very relevant factor in judging a witness' credibility. It will go a long way towards the rejection of that witness' testimony. Neither accused nor his counsel is expected to see into the mind of the prosecution witness who is said to be lying, or into the minds of the several prosecution witnesses, if there is more than one. Neither accused nor his counsel can be held by you to be accountable, so to speak, for failing, if he does, to suggest, discern or prove whatever motive there might be for a false story.

Gentlemen assessors, "men of Samoa", I accept that you have the capacity, with the assistance that I have just given you, to give such weight to the evidence and submissions about the motivations of the so-called prosecution liars as you consider proper in the context of this trial. Remember that the prosecution must prove all elements of the charge brought and do so beyond reasonable doubt. That having been said, you may bear in mind that the question of, "why would this witness lie?" was almost invariably initiated on behalf of the accused Leafa.

It is to the defence case of Leafa and the defence case of Toi that I will turn to after the luncheon adjournment. The luncheon adjournment will be until 1.30, gentlemen. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [12.06pm]

[HIS HONOUR TO COUNSEL]

 

HIS HONOUR: Mr Registrar, would you adjourn the Court, please, until 1.30. 1.30, gentlemen.

 

LUNCHEON ADJOURNMENT [12.14pm]

RESUMED [1.37pm]

 

HIS HONOUR: I will need to postpone the hearing of those applications until either the afternoon break or late this afternoon. I have had arrangements made for the several written applications to be photocopied, but they have not arrived on the premises yet.

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

 

ASSESSORS RETURNED [1.38pm]

 

HIS HONOUR: Gentlemen assessors, the first witness for the defence of Leafa Vitale was the accused Leafa himself. He gave evidence on oath. He need not have done so. His sworn evidence is entitled to your careful consideration. He told you about his career in politics here in Samoa, and the many senior Ministerial positions he has held. He told you that he was not upset by his removals from the Public Works and the Post Telecommunications portfolios. He said that he was a very good friend of Luagalau in business, in politics, and in terms of the deceased's legal practice.

He denied each and every of the critical allegations that the prosecution had made against him, and, in particular, he denied that there was a plot between himself and the accused Toi: "No, no, no, there was none." He denied that he told Alatise to shoot Luagalau. He denied that there was ever an occasion last year when he, Toi and Alatise were in his office together. He denied that Aniseko drove him to Vaimoso where he brought back a gun from Toi. In fact, he denied that he ever had possession of the murder weapon, exhibit P8, "or any gun like it." He denied that Alatise was brought by Aniseko to his office on the afternoon of Friday, 16 July. He denied that he and Toi asked Alatise to kill Luagalau. He denied that he had made promises to Alatise regarding a new car or a new house. He denied that the fixing of Alatise's Suzuki was payment for the job of murdering Luagalau. He denied that he touched or drove the red Suzuki, or that it was, in any respect, for Alatise's use, or in furtherance of a plot. He denied visiting Toi on Saturday, 17 July, at about 2 pm. He denied that he had ever given Toi a gun and 2000 tala to shoot Luagalau. He denied Toi's allegations against him. He denied the very many allegations of the witnesses Aniseko, Upu, Frances Brebner, Laulu Daniel Stanley, Sa Ropeti, the accused Toi, Eneliko and Constable Ututau Pasese.

The accused Leafa indicated on several occasions, when denying the specific allegations of witnesses, that there were reasons for the lies that were told against him. As I have said before, and will have to say yet again, there is no obligation or onus upon an accused person to give reasons or identify a motive for a person telling a lie against him. But, when reasons were given, and many of them were given in response to Leafa's own counsel's questions, you should take them into account when deciding how much weight to give to his denials and how much weight to give to the word of his accusers.

You are entitled to ask yourselves this question: is he, though `out of step', so to speak, with many other witnesses, nevertheless telling the truth? Is it reasonably possible that he was telling the truth and they were telling lies or giving incorrect testimony?

The accused Leafa did agree that on the Thursday of the week prior to the week in which the Minister was assassinated, he, Leafa, did send Aniseko to Vaovai.

MR TOAILOA: Your Honour, I hate to interrupt, but the translation is not correct. The Registrar has referred to the Thursday before Friday the 16th when your Honour had referred to the Thursday of the week prior to that week.

HIS HONOUR: That is right.

MR TOAILOA: I am sorry to interrupt.

HIS HONOUR: No. I will read it again slowly. The accused Leafa did agree that on the Thursday of the week prior to the week in which the Minister was assassinated, he, Leafa, did send Aniseko to Vaovai to bring Alatise, but he said that the meeting which followed was to discuss the kava plantation and the two pigs he wanted to be prepared, one for the HRPP party and the other for the Sunday to'onai. Whilst Leafa was cross-examined on many, many topics, including the matters of the `good character' he bore, according to Alatise, and of his alleged bad character, the issue, as one of fact, is there for your decision as the judges of the facts.

In the course of Leafa's cross-examination by Mr Raftery, some suggestions were made against the accused Leafa. I tell you that suggestions made and not agreed to are not evidence. You cannot use mere suggestions against the accused Leafa. But insofar as he did admit or there was evidence placed before you to establish that he had done, or had in mind to do criminal or otherwise improper things, you must remember that you can only use such evidence in assessing Leafa's credibility as a witness and in deciding how much reliance to place upon his word. And, when I speak of any admissions or proof that he may have done criminal or otherwise improper things, I am speaking, for example, of him having in mind to bribe politicians; or threatening a man, Molesi, with violence; or, as has been suggested, planning to kill other persons beyond just Luagalau.

If you believe and accept that Leafa was telling the truth, and that his accusers were telling lies or giving incorrect testimony, then you must conclude in Leafa's favour on that issue. If you think it is reasonably possible - and the emphasis is on the word "reasonably" - that he was telling the truth and that they were telling lies or giving incorrect testimony, then you must give him the benefit of the doubt on that issue.

I am not suggesting that you should `lump together' all the prosecution witnesses whom the accused Leafa said were lying or giving incorrect evidence. Of course, you must assess them individually. And you must remember that both accused are to be presumed to be innocent and to remain entitled to that presumption until his guilt has been proven beyond reasonable doubt. You may conclude that one or more of the so-called liars was lying or giving incorrect testimony, in which event you must not act upon that testimony. But, if, in the end, you conclude that some or all of those prosecution witnesses were not telling lies or giving incorrect testimony, then you can and should assess their testimony in contrast to the accused Leafa's sworn testimony.

It is a matter for you as to which of the witnesses you believe, and which of the witnesses you disbelieve. And, in relation to each witness, it is a matter for you as to which part or parts of the witness' evidence you believe and accept, and which part or parts you disbelieve and reject. Of course, if you cannot decide, you should give the benefit of the doubt to the accused. I tell you, gentlemen, that the credibility of the testimony of all those so-called "liars" bears directly on the weight to be given to their evidence. Several witnesses all giving evidence to a similar effect - for example, the possible possession by the accused Leafa of the gun, P8, or one similar to it - are generally easier to believe than one witness; but not, of course, if they have all `put their heads together', or if it is reasonably possible that they have. But that was not really and specifically suggested here. I remind you that the credibility of the witnesses is a question for you, as the assessors.

There was some suggestion by the accused Leafa and his counsel to the effect that you should draw an inference adverse to the prosecution from the unexplained absence of witnesses, and, specifically, two persons who were at the EPC Board meeting: the General Manager of the EPC, and the Secretary to the Board, and whom you might have expected to be called. You should steadfastly bear in mind that there is no onus (or burden) of proof on the accused Leafa, or, for that matter, on any accused, so there was no obligation on either accused to have called those people to have given their account, if they had one and if they recalled one, of what occurred at that meeting.

You should certainly draw no inference adverse to either accused from the fact that you did not hear from Tuluono and Emoni. It is open to you to draw an inference from the unexplained absence of those witnesses that their evidence would not have assisted the prosecution case, but the drawing of such an inference should rarely be undertaken and only when you feel convinced that you should. You would be well advised, and it is your duty, to concentrate on the evidence of those witnesses, including the accused Leafa, who were called, and you should concentrate on the witnesses who could shed light upon the issue of whether there was a gun there. Otherwise, gentlemen, you should not speculate upon what a witness who was not called might or might not have said.

I remind you that this case must be decided on the evidence that was produced in this courtroom and not on speculation or anything else from outside. Besides denying that he had the suggested (or any) motive, to have Luagalau killed, Leafa also disputed that he had the financial capacity and ability, because of the kava plantation, to do as was alleged against him in relation to, first, the recruitment, most directly done by Toi, of a proposed `hit man', that `hit man' to undertake a `contract' killing of the Honourable Luagalau, and others, on a `hit list' or, secondly, the incitement or procurement of Alatise to do what Eneliko did not do.

In examination-in-chief, the accused Leafa's own counsel asked him:

Would you know of any reason why Alatise would come to Court and tell the Court that you had instructed him to kill Luagalau, and so forth, if it was not true?

Whilst that question might not have been permissible to be asked of the accused if it had been asked in cross-examination, I tell you that, in this instance, it was asked by Leafa's own counsel. If you conclude that the accused was not able to suggest a convincing reason why Alatise would tell a "big, a very big lie like that", that is to say, a very big lie, the false allegation - false, according to the accused Leafa - that he had instructed Alatise to kill Luagalau, then you should not infer from that that the accused Leafa must be guilty of the crime of inciting to commit murder.

Why do I say that? Well, the accused Leafa, as with the accused Toi, is presumed to be innocent, and the burden of proof rests with the prosecution. There is no burden (or obligation) upon the defence to prove anything, and least of all to prove his innocence. Just because he may not have been able to suggest a reason at all, or a convincing reason, why Alatise would want to `frame' his own father, that is no proof that his father committed the crime charged. You may use the accused Leafa's answer to his own counsel's question only in assessing his demeanour and his credibility.

I remind you of that short piece of evidence. Question by Mr Toailoa:

Would you know of any reason why Alatise would come to Court and tell the Court that you had instructed him to kill Luagalau, and so forth, if it is not true?

Answer:

As I have stated, the statements are all incorrect and not true. But I have been separated from my son for about seven months. He was taken and was kept at Savaii. And I was also surprised when he appeared before the Court and gave his statement. And what he related to the Court about what had happened to him, sir, and the reasons he had stated for assassinating the Honourable Luagalau.

Question by Mr Toailoa:

Is that all you can say about that?

Answer:

That is all I can say, sir, about the question as to a reason or reasons why Alatise had given that statement to the Court.

Gentlemen, make what you will of those answers, in the light of my advice just given.

The accused Leafa was also cross-examined at some length about the planned formation of a new political party: "E Taua Tagata Uma". In the end, some handwritten envelopes were tendered, exhibit P40. I remind you, and redirect you - direct you again - that you may only use all that cross-examination and that documentary evidence as going to the credibility of the accused Leafa as a witness.

You cannot, you must not, use that evidence to reason that, because he may have had in mind to pay bribes to certain politicians, and was, therefore, in a sense, a person who was thinking about indulging in a form of political corruption, that therefore he is the sort of person who is likely to have committed the subject crime. The accused Leafa having put his character in issue, you may only use that evidence in assessing whether he truly is a man of good character, and whether you believe Leafa's evidence on issues that are in dispute, and in deciding how much reliance to place upon his word.

You may recall that Mr Raftery asked Leafa in cross-examination:

But how do you say these thoughts of yours square with `the honest, God-fearing, virtuous man' that your lawyer sought to describe you as when questioning Alatise?

This is what followed. Answer:

I cannot see what I had done, sir, against God in this thing. These were only plans and, to me, the ideal thing was that the people of the country live well. There is no point in having a 100-storey building, sir, when the public and the community are suffering.

Question:

And so it was all right, was it, because these were just thoughts, but nothing you actually did? Is that what you're saying?

Answer:

Yes, they were only thoughts. They were only plans of where we could get assistance, sir.

Make what you will of that, gentlemen.

Ultimately, the prosecution suggested to the accused Leafa that the real reason why he, Leafa, needed a rental Suzuki for one week, the week before Luagalau was murdered, was so that Alatise could use it at night to go up and down to Luagalau's property. When asked whether that was right or not, the accused Leafa replied:

Sir, if that is counsel's interpretation, sir, that is your's, sir. But that did not happen, sir. You do not need a four-wheel drive to go up to Luagalau's place, sir. It's a tar-sealed road, sir. Nothing like that happened.

The accused Leafa went on to deny that suggestion even more and said:

Sir, that is wrong, wrong, wrong, very wrong, sir, and this is your own conclusion, sir. The reason why that Suzuki was hired was for the use of my daughter, and also for the use at the kava plantation.

The accused Leafa was cross-examined as to his movements after the Cabinet meeting on 17 July, the day after the assassination. He was adamant that, though he gave a lift to the Minister for Justice, Molio'o Teofilo, to his home at Togafuafua, he then went straight on, so to speak, to Vaovai and did not backtrack, even a little way, to the accused Toi's house at Vaimoso.

You will remember that the accused Leafa is under no obligation to explain away Constable Ututau's evidence, or to disprove that witness' evidence to the effect that he had visited the accused Toi at his home at about 2 pm on 17 July. He did, nevertheless, suggest that the lateness of him giving a statement to the police, and that that is at least consistent with recent invention and fabrication. And I remind you of the advice I gave you earlier about the care that needs to be taken with a police witness such as Constable Pasese. The accused Leafa denied that he had a reason to visit Toi on 17 July.

I remind you that what the accused Leafa said to the police in an interview is not, in any sense, evidence against the accused Toi, but it may be evidence against Leafa.

Gentlemen, it is open to you to conclude that the accused Leafa was trying, in that brief interview, to `shift the blame' from himself by `pointing the finger', so to speak, at the accused Toi. If you were to conclude that that constitutes a false statement made by the accused Leafa - false in the sense that he was denying that he knew anything about Luagalau's death - you may only use that as going to the issue of the accused Leafa's credibility as a witness. You may not use it as showing a consciousness of guilt, and, therefore, as evidence tending to prove guilt.

At the conclusion of the cross-examination of the accused Leafa, he was asked, you may remember, about a previous conviction; a traffic conviction for a minor offence of driving an unlicensed vehicle. You may remember that he ultimately did not deny that conviction. It is open to you to conclude that he was more than a little evasive in responding to questions on that topic. But, if you so conclude, that is a matter related to his demeanour, which may assist you in assessing his credibility as a witness.

I now must say something to you about the matter of character of the accused Leafa. I have said something in a general way about this topic before, but I must now be a little more specific. Evidence was placed before you as to the accused Leafa's good character. You will remember that Alatise was asked, in cross-examination by Mr Toailoa, questions to the effect (and Alatise agreed) that his father was a man of good character; that he had no previous convictions in the United States of America; he had no previous convictions in Samoa; he was `a God-fearing man'; he was not the sort of person who had a criminal mind; and he was not the sort of person who would suggest to someone else to kill another person.

That is evidence which you should take into account in deliberating as to your verdict in relation to the verdict for the accused Leafa. You may believe it, you may not. It is true, of course, that persons of previous good character do commit crimes. Nevertheless, an accused person's previous good character, if that is what you assess Leafa's to be, has an undoubted bearing upon the probability or improbability of his having committed the crime charged. You should consider it, together with the other evidence in the case, in assessing the likelihood of the accused having committed the crime he is charged with. If you accept Alatise's evidence in that respect, and reject the evidence of bad character to which I will refer in a moment, you should bear it in mind in assessing the accused's evidence and his credibility as a witness.

Now, something about bad character. The general rule, in the law of evidence, is that the evidence that an accused is not of good character is not admissible and is, therefore, not placed before you, the assessors, as evidence. The reason behind that rule is that the guilt of an accused person must, generally speaking, be proved by evidence related only to the charge brought against him. However, in this case an exception to that general rule has permitted evidence to be given against the accused Leafa, and I emphasise that what I am talking about only affects the accused Leafa, and I am referring to evidence of his bad reputation, or previous bad character.

The same exception to the general rule also permitted the cross-examination of the accused Leafa as to his alleged bad reputation or his alleged previous bad character. That was to rebut, if it did, the evidence extracted when the accused Leafa's counsel put Leafa's character in issue. I give you the following directions of law about the use of that evidence. There is one way in which you are entitled to use it, and one way in which you are not entitled to use it. You are entitled to use that evidence in assessing the credibility of the accused Leafa, in other words, in deciding how much weight you should attach to his testimony. You are entitled, if you choose, to conclude that what he, Leafa, says is less to be trusted or believed because of his bad character, if that is what you find his character to be. However, you are not entitled to use it, that is to say the evidence of his bad character, as evidence that he committed the crime with which he is charged in this trial. You are not entitled to say: "This accused Leafa is not of good character, therefore, it is more likely that he is guilty". To do that would be contrary to the law, because the law provides that an accused is not to be judged by his past or influenced by prejudice arising from his bad character. Therefore, I tell you that you should not attach any greater significance to the evidence of the accused Leafa's bad character than it properly bears.

Gentlemen, to summarise this aspect of the law of evidence, evidence of the accused Leafa's bad reputation, or bad character, was placed before you in an attempt - how successful or not is for you - to rebut the evidence of good character given by his son Alatise. I, as the Trial Judge, permitted the prosecution to call that evidence of bad reputation or bad character to rebut, if it could - and whether it did or not is a matter for you - the evidence of good character, and in an attempt to give the whole picture. You may not use the evidence of bad character, if that is what you conclude it to be, as demonstrating that the accused had a propensity to commit the offence as charged. You may use the evidence of bad character to rebut (or answer) the suggestion that there was no likelihood of the accused Leafa committing the offence charged because of his so-called proved good character, and him not being the sort of person who would suggest to someone else that they should kill someone.

It is of the utmost importance that I make it clear to you, by this my direction, that the accused Leafa can be convicted only if you, the assessors, are satisfied that the elements of the charge have been proved beyond reasonable doubt. It is not permissible to convict the accused Leafa upon the basis that he is a man, if you conclude that he is, of bad character.

The second defence witness called on behalf of Leafa was his daughter, Amy. She was initially asked what she knew regarding the hire of the red Suzuki, and she replied:

Well, the purpose of me hiring the rental car was because our truck, our husband and I, it was not working at the time, so I had phoned my dad to see if he could rent a car for me.

She explained how Upu and Aniseko had come to pick her up at the Bar,

and then they went to Apia Rentals to hire the car. She said, in examination-in-chief - but this was inconsistent, so you may find, with the statement she had made earlier - that it was made known to her by her Dad that there was another purpose for renting the vehicle. That other purpose was to help her brothers and her cousins with the kava plantation. You may think that she did not support the accused Leafa insofar as he had asserted that he had emphasised the need to hire, and had insisted upon the hire, of a four-wheel drive vehicle. In answer to the question:

Did anyone suggest to you the type of vehicle to be hired?

She replied:

No.

Question:

When you went to the rental company that morning, did you go looking for a specific type of vehicle, or was it any vehicle that was available?

Answer:

Well, I was mostly looking at the cheapest car.

Amy was asked to describe the movements and use of the red Suzuki throughout the seven days of its hire. She went into some detail regarding each of the days Monday to Friday, and also for Saturday, Sunday, and Monday morning. I need not remind you of those details. She was clear that she had spoken to her Dad prior to each hiring period. As to reasons for remembering the details, she said that it was in her name; she was worried about her brother driving it. She denied that she had discussed the matter with Pasikale. She was asked in cross-examination whether she had ever told anyone a different story to the one she was telling in the witness-box, and she answered in a firm "No".

Then she was confronted with a statement that she had given to the police on 18 August last year, which she acknowledged that she had reviewed, read and signed, although she did say that she was "crying throughout the whole interview". She then acknowledged, you may remember, that she had given some inconsistent statements to the police, that is to say that she had told the police certain things, and that she had told you, in this courtroom, something else. In particular, she acknowledged that she stated to the police that she had rented the car, and not anything about her Dad.

She acknowledged that the stated reason for the hiring was because she "had guests", and because her "pick-up had broken down", and nothing about helping her brothers and her cousins with the kava plantation. She acknowledged that she had stated to the police that they had the Suzuki with them at Mulinuu where the car was, and nothing about it being at Vaovai for part of that first four or five day period. Amy also acknowledged that she had stated to the police:

The whole time I had the red Suzuki, my husband would use it also.

And apart from a reference to someone coming and asking for the keys, there was no mention of anyone else (and, in particular, Pasikale) using the vehicle, or of the kava plantation, or of Vaovai. So, again, gentlemen, you have a question of inconsistent statements, a question which arose with reference to several of the prosecution witnesses. Amy explained the apparent inconsistent statements that she made. It is for you to assess whether there are understandable inconsistencies or whether there is a reasonable possibility that they are understandable inconsistencies, or that they are all indicative of falsehood.

It is for you to assess whether, if you conclude that they constitute falsehood, this was an unsuccessful attempt to support her father's case by providing evidence that answers the suggestion that the accused Leafa also had the red Suzuki to enable him to show Alatise where the deceased's house was. The evidence of Amy, together with that of Pasikale, to be referred to in a moment, if believed and accepted by you, or if you consider it to be reasonably possible that it represents the truth, is evidence akin to evidence of an alibi for the red Suzuki.

You see, if the red Suzuki was with Amy and her husband for part of the time, and with Pasikale travelling to and from Vaovai, and at the kava plantation, or at Vaovai for the rest of the time, it could not have been used by the accused Leafa to have, or permit his son Alatise, to travel to the vicinity of the home of the deceased Luagalau. So the evidence from Amy and Pasikale, and also the accused Leafa himself on this topic, is important evidence with regard to that one aspect of the prosecution case.

It is for you to assess whether, in the end, their evidence assists the defence case as presented by the accused Leafa, or raises a reasonable possibility that their evidence represents the truth. It is for you to assess whether, in relation to that one aspect of this case, the prosecution has proved beyond reasonable doubt that the red Suzuki's `alibi', if I may call it such, has been disproven, in that the red Suzuki could not have been used by Alatise as a means of transport whilst he checked out the possible assassination place.

It is important that you bear in mind that there is no onus on the accused Leafa, having raised it, to prove any asserted alibi for the red Suzuki. The onus (or burden) of disproof remains on the prosecution if it wishes to rely on this fact as part of its case against the accused Leafa. When I speak about "this fact as part of the prosecution's case against Leafa", I am referring to the fact that Leafa provided Alatise with the red Suzuki with which to "case the joint", to use language more familiar to those aware of the activities of the underworld.

It is for you to attach to what I call the `alibi evidence' regarding the red Suzuki of Leafa himself and of his daughter Amy and of his son Pasikale what weight you deem appropriate. 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 the whole of the evidence in the case bearing upon whether the accused assisted Alatise to commit murder. If you are left in the state of mind that it is reasonably possible that the `alibi' for the red Suzuki, so to speak, put forward by the accused and his witnesses, is true, then the doubt thereby arising must be resolved in favour of the accused Leafa.

As I explained earlier, when discussing alibi evidence generally, the rejection of alibi evidence does not necessarily lead to a conclusion of the guilt of the accused. Having put the alibi evidence to one side, if that is what you are minded to do because of rejection of it because of inconsistent statements made by Amy and Pasikale or otherwise, you must still review all the other evidence placed before you, and consider whether the prosecution has proved all elements of the offence charged beyond reasonable doubt.

If you accept the alibi evidence, or if you think it reasonably possible that the alibi evidence represents the truth, it does not necessarily follow that the accused Leafa should be acquitted, found not guilty. What you should do is put that fact, sought to be proved, to one side as unproven. You should then turn to the other evidence and consider whether it has been proven that the accused Leafa assisted Alatise in some other way, or whether it has been proven that the accused Leafa incited, or counselled, or procured Alatise to commit murder.

I urge you not to overlook a question asked of Amy in re-examination. Question:

Now, having been reminded of what you had told the police, and also in comparison to the oral testimony that you have given to this Court, which do you say is the whole truth?

Answer:

What I am saying here in Court today.

Make what you will of that, gentlemen. We will be taking the break now, and, shortly after the break, I will complete the remaining three witnesses called on behalf of the accused Leafa and consider the case for the accused Toi, which I would hope to complete my analysis of that this afternoon. Mr Courts Officer, would you take charge of the assessors, please.

 

ASSESSORS RETIRED [3.01pm]

 

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

 

SHORT ADJOURNMENT [3.01pm]

 

RESUMED [3.24pm]

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors, please. I will deal with the press applications at the end of the day.

 

ASSESSORS RETURNED [3.24pm]

 

HIS HONOUR: The third defence witness for Leafa was Base, and I will return to him in a moment. The fourth witness for the accused Leafa was Eseta. I will return to her in a moment.

I want to deal immediately with the fifth witness for Leafa, Pasikale Leafa. He, as you will remember, is Amy's brother, Alatise's brother, and another son of the accused Leafa. In the first part of his testimony, he provided Alatise, you might think, with some support for Alatise's evidence to the effect that it was he, and he alone, who told Pasikale and Fiavivini to go and hide the gun, and that Alatise told them not to tell anybody, including Leafa, about what they were going to do. He described what they did to hide the gun. He said that he could not remember if Alatise came to the kava plantation during that week, but he could remember that Fiavivini went with him to the kava plantation. He said that he saw Alatise next on Sunday, when he (Alatise) asked whether they had already hidden the gun, and whether anybody knew anything. He said that Alatise said to them not to let Leafa know, and likewise, his wife. He said that Alatise said to let nobody know about it.

The witness Pasikale acknowledged that at first he did not tell the police anything about this gun that had been hidden. He described in some detail the movements of the red Suzuki on the week-days of the week during which it was hired. You may think that, in his testimony, he lied to this Court when he said that he had never promised in Court to bring his driver's licence in; that he lied when he said, "I did not swear on oath that I will bring my licence"; and that he lied to the Court when he had been asserting that he was drinking all the way to Vaovai and back on Friday, 17 July. It is for you to assess as to whether any of those things amounted to lies. If you were to conclude that those things, or any of them, were lies, then that may assist you in deciding whether to accept his evidence directed to the issue of what I previously described as the `alibi' for the red Suzuki. I remind you that people tell lies for a variety of reasons, and, just because you may conclude that he told a lie, or even lies, on certain topics, it does not necessarily follow that he was lying when testifying as to some other subject matter.

The sixth witness for Leafa, the 64th witness in the trial, was Fiavivini Aliivaa. He was asked about the events of Tuesday, 20 July, four days after the assassination. You may think that he confirmed Pasikale's evidence regarding Alatise having told them that day to go and hide the gun, and not to let Leafa or his wife, or anyone else, know what he had done. In examination-in-chief, he acknowledged that he had lied to the police about the gun. He also told the Court about the events of the following Sunday at the village at Vaovai, and the inquiry by Alatise as to whether the accused Leafa knew about what had happened.

The reply given, according to Fiavivini, was, "No, we had not related to anybody what had happened". He also testified to the fact that Alatise had told him and Pasikale to re-hide the gun "at a far away place where nobody would be able to know where (we) had hidden it". When being cross-examined by Mr Raftery, Fiavivini acknowledged that they had hidden not just one gun, but two guns - a big gun and a small gun - and other things. In his examination-in-chief, he supported or confirmed the version of Amy's evidence which she ultimately said was the truth.

During the course of the cross-examination of Pasikale by Mr Raftery, it was suggested to Pasikale that he had not told the police the truth about the gun which had been hidden for Alatise. It was further suggested that he was less than frank to this Court concerning his non-existent driver's licence.

You may recall that Fiavivini testified in cross-examination that he had stated in examination-in-chief that he had said "guns", plural. Although it is a matter for you, you may well conclude that that was a false statement because nothing had been said during examination-in-chief about more than one gun. Fiavivini denied the suggestion that it was not Alatise who asked them to do that, and that it was Leafa. It is a matter for you as to whether that was a true denial, or a false denial.

You may bear in mind that Alatise had said, in response to a question by Mr Toailoa, when he, Alatise, was being cross-examined, the following. These are Alatise's words: "They", referring to Fiavivini and Pasikale, "had been sent by the old man", referring to Leafa, "to inquire as to where he (Alatise) had hidden the guns". Fiavivini responded to the suggestion that he had given a false denial by saying of his brother, Alatise, "I believe that witness is lying". The witness Fiavivini acknowledged that he had lied to the police when asked by the police where the gun was and where they had hidden it.

It was suggested to Fiavivini, and then not pressed, and certainly not admitted by the witness, that he had, in effect, tried to give Alatise a false alibi. The last question but one (the penultimate question) of Mr Raftery's cross-examination, produced an answer which it would be open to you to regard as significant in the assessment of Fiavivini's credibility. The question was:

And when the police were suggesting to you and Pasikale that the two of you had been lying, that was right, wasn't it, what the police were saying to you?

Answer:

Very correct, sir.

You can take all these matters into consideration, along with your assessment of this witness' demeanour, in deciding how much, if any, support his testimony provides to the defence of the accused Leafa.

That having been said, I remind you that the accused Leafa, by himself or by his witnesses, does not have to prove anything.

I said that I would return to discuss the evidence of Base, the young married man with three children. His evidence, if believed, constitutes important defence evidence. I am talking about evidence in the defence case of the accused Leafa. He was the tea/coffee man in the Minister's office, the Minister being the Honourable Minister Leafa Vitale. He was adamant, when in the witness-box, that, on Friday, 16 July, he started work at exactly 8 o'clock and that he knocked off at 4.30. He said that he was in the office all the time between 12 and 4.30, in the office of the Minister for Women's Affairs. He said that he "could not recall" whether, at any stage during that day, he became aware that the Minister (Leafa) had instructed Aniseko to go to Malie and look for Alatise and bring Alatise to the office. He said that Alatise "did not come" to see his father that day.

That evidence, if believed and accepted, is in direct contrast to Aniseko's evidence, and Alatise's evidence given after he, as a hostile witness, had `done the turn-around'. As far as both of those witnesses were concerned, that is to say Aniseko and Alatise after that moment on 22 February, Alatise had been brought to see his father, and, as far as Alatise was concerned, Alatise had been told by his father to shoot the Honourable Luagalau that night at the HRPP party.

Base was firm, you might think, in his assertions that, when Leafa left his office on that Friday afternoon:

We left together with the old man that evening, sir. I was the one that carried his bag down to the vehicle at exactly 4.30.

Base denied that he had ever seen the big gun, exhibit P8, that is to say, before it was shown to him in the witness-box. He denied that he had ever seen that gun, or one that looked similar to it, inside the Minister's office. And he said that he used to go into the Minister's office about four or five times a day. Base said, in answer to a question by Mr Toailoa, as to whether, on any day during the week before the week the Honourable Minister Luagalau was shot, he could recall there was ever an occasion when there was a meeting in Leafa's office between Toi, Leafa, and Alatise. So, having said, "No, I cannot recall", in examination-in-chief, during cross-examination he went further and said, "There was never any meeting". This evidence, as given by Base, if believed and accepted, has the tendency to rebut the evidence of the prosecution to the effect that there was a meeting during the week before the week of the murder, and that the meeting was between Toi, Leafa, and Alatise.

Base's evidence tends to rebut the evidence of the prosecution to the effect that the accused Leafa had had his son Alatise brought from Malie by Aniseko to his office; the office where, so it is alleged, the hit man, Alatise, received his chilling instructions to murder the deceased that very night. When being cross-examined by Mr Raftery, Base came to acknowledge that he was very dependent upon the accused Leafa for his employment and income-earning opportunities. By implication, Base had a motive to assist his boss.

It is a matter for you, but you may have thought that the witness Base manifested a reluctance to agree to any suggestion that he might have been absent from the Minister's office running errands, or the like, and, as a consequence, was manifesting a tendency to exaggerate in favour of the accused Leafa. Whilst there is no proof before you that it is Base's signature, or handwriting, on exhibit P37U, one of the banking documents, the fact that his name appears thereon, that is to say, on the accused Leafa's banking document apparently signed by him, Leafa, an authority to withdraw money, is indication enough, you might think, that the Minister expected his staff member to go on errands such as to withdraw money from the bank from time to time.

The witness denied, in effect, that this was his errand, and that that was his signature. The suggestion implicit in his answers was, you might think, that someone must have signed pretending to be him. That may lead you to have real doubts about his veracity, his truthfulness. It is open to you to ask yourselves whether he was prepared to deny this banking errand rather than diminish in the slightest his loyalty towards (and support for) Leafa. You would be entitled to ask yourselves whether Base was a biased witness, or was an independent witness giving his true recollection of events.

He admitted that he had made to the police an inconsistent statement. I am referring to the statement he admitted that he made to the police on 20 July last year, in which he stated that he started work at the Bar on the evening of 16 July at about 4 o'clock; not 4.45 or 4.50 pm, which must have been his starting time if, in truth, he had knocked off work at 4.30. The significance of the knocking off time for Base on the day of the murder is, gentlemen, that, if he knocked off at 4.30, his testimony tends to rebut or answer the evidence of Aniseko and Alatise. But, as he admitted that he told the police he knocked off work in time to start work at the Penisula Bar at 4 o'clock, then there was plenty of time between 3.45 or 3.50 pm until 4.30 in which that allegedly crucial and sinister meeting between father and son could have taken place without Base knowing about it. You will remember that Eliza could not remember, one way or the other, whether Alatise came to the office that afternoon.

In terms of his credibility, you may think that Base manifested some hostility towards the police. If that be so, then that might explain the change in story from "a true one" initially to "an untrue one" in this courtroom. But these are matters for you. The previous convictions of Base also represent material to which you can have regard in assessing Base's credibility as a witness.

But remember that persons of bad character, and persons with previous convictions against their name, can be honest and trustworthy witnesses. It does not follow that, just because a witness has been convicted in the past, then necessarily he or she should be disbelieved. Base acknowledged that the bit in his statement to the police about him being the DJ on the evening of 16 July; about him being with Leafa's son, Pasikale; and about him being with him all night up until it closed at 12 o'clock was true and correct. Having regard to what Pasikale told you, you may conclude that one of them, either Base or Pasikale, must be wrong about that. Make what you will of Base's assertion that his memory has improved over the period of eight months since he gave his statement to the police.

Base was cross-examined by Mr Raftery about another inconsistent statement he made. He admitted at first that he told the police that he remembered that Leafa Vitale's son named Alatise came over to the office about three times and they would talk on their own. This was some time in the end of June or the beginning of July. However, you may recall that he later denied that he had made that statement to the police. You will remember the later cross-examination about further interviews given, and statements made, concerning the events of 16 July, and, in particular, the question of whether Alatise did or did not come to the office that day, and whether he (Base) could not remember if Alatise came or not.

You may or may not have been impressed with Base's demeanour during that cross-examination. What I must make clear to you is that Base did not admit having made an inconsistent statement with regard to that topic, and no inconsistent statement on that topic was proven, so you cannot use an inconsistent statement on that topic as any basis for disbelieving him. That is not to say that you cannot use, in that way, any inconsistent statements he did admit making.

I now return, as I indicated to you that I would, to discuss the evidence of Eseta. Eseta is, as you may recall, the accused Leafa's daughter-in-law. Her testimony purported to answer the suggestion made by Aniseko and Alatise that he, Aniseko, called for Alatise at Eseta's house on the afternoon of Friday, 16 July, before taking him to the accused Leafa's Ministerial office. You will bear in mind, no doubt, the closeness of the relationship by marriage between Eseta and the accused Leafa, and you will take into account whether she is likely to have come to Court to lie for her father-in-law about the time she saw Alatise.

Eseta told you in examination-in-chief that she saw Alatise at about 4 pm on 16 July at her house, when he came to ask about the time of a prayer meeting. She said that she was with him for about 15 minutes, and then they walked to the front, to the road, and then Alatise continued to his house. She was asked whether she saw Aniseko, or his vehicle, on that day, and she replied, "No". She denied that Alatise had a bag with him when he visited her. You may be puzzled that Eseta only claimed to have seen Alatise once during the week before Luagalau's murder on that Friday, in circumstances in which other evidence suggested that Alatise was at Malie all week.

When being cross-examined, Eseta, who told you that she went to the Penisula that evening, was fairly definite, you might think, when she told you that, at the end of the evening, she and her husband, Siaosi, drove Pasikale and Fiavivini home to Malie first, and then Base to Salelesi, all in the same journey. She said that she supposed that Base was wrong to have said that there were two separate journeys. Eseta told you that Base, Pasikale, and Fiavivini were all very drunk that night. You will assess how that testimony, if you believe it, fits in with Pasikale's evidence about having driven Alatise to Vaovai, and having returned late that evening, and by inference, being in a fit enough condition to drive all that way and back.

Gentlemen, in assessing all the defence evidence given on behalf of the accused Leafa, you should remember that he does not have to prove anything. But you will, no doubt, ask yourselves whether he, or all of his witnesses, rebut or answer any of the allegations of the prosecution, and you will, no doubt, ask yourselves whether any, and if so, which of his witnesses provides him with some support or confirmation of his story.

I now turn to the defence case of the accused Toi. The accused Toi gave evidence on oath, something he was under no obligation to do. Toi's evidence from the witness-box, unlike the evidence of what he said to the police at any time in the absence of the accused Leafa, is evidence which you may use for the accused Toi to the extent that it may favour him, or against him. But Toi's evidence from the witness-box may be used against the accused Leafa.

He told you initially about his background and his long career as a Member of Parliament, and you will recall that he is a former Minister of Cabinet. He was taken, initially, through his statement that he gave to the police on 4 August, that is the statement copies of which you have, exhibits P34A and P34B. The accused Toi immediately implicated his co-accused Leafa when he said that it was Leafa who spoke to him about shooting Luagalau. He testified to that discussion having taken place under the pulu tree at the Penisula, not far from this courthouse, sometime last year. You may recall that he initially said that it was sometime in August last year, but he later said that it was May or sometime in July. Ultimately he said June. The accused Toi said that the two of them talked about the "anger with the Prime Minister and with Luagalau":

We talked about the "pigi", shooting, of the Prime Minister and Leva.

The accused Toi said that "they talked and talked and drank beer." He said that he, referring to Leafa, gave him $2000 (tala). That was the first, or the down-payment of a much greater "contract price", which he said was $500,000 (tala). He went on to describe, in his evidence, the discussions had before arriving at the "contract sums" for him (Toi) to shoot, or have shot, "these boys". He was referring, you may think, to the Prime Minister and Leva. He said that there was discussion about "his boy" at home, that is to say, Eneliko, who was to carry out the shooting. The accused Toi said that it was "not (his) contract, it was Leafa's". In examination-in-chief, he described how he took the $2000 (tala) and the gun, and he went to see Eneliko. He described his discussions with Eneliko, and their movements together.

It was at this stage that a difference emerged, so you might think, between what Toi was telling you and what he had told the police. He had told the police, according to exhibits P34A and P34B, that he had told Eneliko "to shoot the Prime Minister and then shoot Levaula." He had told the police, according to those exhibits, that he (Toi) had taken Eneliko two or three times to show Eneliko Levaula's house, and twice to show him the Prime Minister's house.

But the accused, when in the witness-box, told you that, after he and Eneliko had done a u-turn in front of the Prime Minister's residence, he "laughed" and "Eneliko laughed", and that he (Toi) whispered to Eneliko not to shoot the Prime Minister. There had been no mention of that, you may well conclude, in Toi's statement to the police in those exhibits. In his evidence, the accused Toi went on to describe their movements when in the general area of the Prime Minister's house and Levaula's residence. After telling Eneliko to go and view Luagalau's residence from the landward side to see if a person could be shot from that side, he said that he lost Eneliko and discovered that he had left the area by walking in a seaward direction.

The accused Toi described the several visits to the area. He did say, but not on any identified visit to the area, and not something that he had said to the police, that he told Eneliko, "at his house", referring to Luagalau's house, "nobody should be shot; the money is small; we wait until the money is received". Toi went on to say that he said to Eneliko: "Because when a person is shot, the person dies and it is finished, but we wait until the contract money is received". And Toi then went on to say that that is when he said to Eneliko, "We will then be millionaires".

You will assess, gentlemen, the situation for yourselves, and no doubt ask yourselves whether Toi, having admitted to the police that he had incited or urged Eneliko to shoot the Prime Minister and then shoot Levaula, and thereby acknowledged his full participation in a plot to have both men assassinated, with him (Toi) being the intended hit man's boss, or principal. You may think that he (Toi) was now trying to play down his involvement by asserting that the plot to kill the Prime Minister was just a joke and never a serious part of the plan, and that the plan to kill Luagalau was never unconditionally pursued. It was a tentative, or conditional, proposal only, dependent upon the money being forthcoming.

The accused Toi went on, in his examination-in-chief, to describe not his mounting impatience with Eneliko - that was something, you may think, he had impliedly indicated he felt, when talking to the police - but, rather, his frustration with the accused Leafa for not having got the money. He said, from the witness-box, on oath:

I had visited Leafa twice, and there was no money. I was told that money had not been received. So I did not go back to the boy -

Eneliko -

because there was no money. So I came back to Leafa, and Leafa laughed at me and said that money had not been received. So I went back to Eneliko, and I told him that the contract was in doubt, and so we decided the money, the 2000.

The accused Toi went on to describe his meetings with Levaula, the discussion with the Prime Minister, and the unsuccessful so-called bestowal of the title of Deputy Prime Minister on Levaula. And then he went on to describe how there was the making of a prayer by Kota, Leva's wife. He described some further developments, and then told you about going to get the gun from Eneliko. He had told the police that he wanted to get the gun back from Eneliko because he had been urged to "have, or get, the gun back", but, in examination-in-chief, he was asked, and he answered as follows. Question:

Why did you go to Eneliko's place?

Answer:

To bring the gun.

Question:

Why did you want to get the gun?

Answer:

The contract was finished. There was no money.

The difference between those two stories, or explanations, may be important, gentlemen. You see, in the police statement, he was admitting, in effect, that he gave the gun back because he had been pressed into doing so, and he was admitting, in effect, that the plot was still `on foot'; whereas, in his evidence, he was saying that the arrangement had come to an end. To use the language of the law of contract, `the contract had been terminated because it had been repudiated for lack of money.'

The accused Toi described his visit to Eneliko's house to collect the gun, and how he "got the gun, put it inside, and then I came home." The accused Toi, in his statement to the police, had said that his "partner" came to him on one day and took the gun from him and there were some unpleasant words spoken, including the words: "You coward shit. You can't do it, can you?" Whereas, in his evidence, Toi put it this way:

It was Leafa, and I inquired, "Are you coming to get your gun?" And he said, "Where is the gun?" and he said, "Bring me the gun, you shit."

Toi went on to testify that Leafa "uttered many swear words", and that he (Toi) then said:

This is your gun. I'm sorry, the contract could not continue. The boy (referring to Leva) cannot be shot, and the other thing is that there is no money for the contract.

Toi further said, in examination-in-chief, that he told Leafa to "take his gun and leave. That we were finished. That no contract should be done like that." Toi said, in evidence, that he had been to him four or five times but there was still no money for the contract. He said that he told him to "take his gun and leave." And then he said that Leafa said to him:

You wait, you chicken-arsed shit, and tell your man to wait. I will shoot his head.

And Toi said that Leafa said that three times:

I will shoot the head off your boy.

Toi said, in evidence, that he never saw Leafa again until much later when they were both at the prison after their respective arrests.

Toi denied the allegation that the accused Leafa had visited him at his house at Vaimoso on Saturday afternoon, 17 July. He denied the evidence that he had a handgun in his vehicle, and that, later on that day, went to collect Eneliko at Saina. He denied the evidence that suggested that he had told Eneliko not to tell anyone about his dealing with him (Toi) on the "contract to shoot Luagalau."

Toi went on to volunteer reasons why Eneliko had given that evidence, which he implied was false, against him. You will remember the explanation that he gave about the removal of his fence by the government, and Eneliko's belief that he (Toi) had reported that; and he told you about an attempt, as he put it, by Eneliko to grow his hair to fit in with a description of him as "a hippie" or "a man with long hair".

The accused denied, on oath in the witness-box, any knowledge of Alatise, and he hotly disputed, you might think, the suggestion that he (Toi) had said, at a meeting in Leafa's office attended by Leafa, himself, Toi, and Alatise:

Luagalau is like a dog. If you see that dog, blow him away.

Well, gentlemen, I will break off here. It has been a long day. I will finish what I need to say to you about Toi, and about his witnesses, tomorrow morning. I have some matters of law to put to you, and I have a number of things to say to you, finally, before I conclude my summing-up. I hope that I will be in a position to ask you to retire to consider your verdicts tomorrow afternoon. If it is late tomorrow afternoon, then almost certainly I will intimate, when I send you out, that I would not accept verdicts from you before a time that I may nominate the following day.

You will be encouraged by me, as the Trial Judge, because it is my duty so to encourage you, to take as much time as you need to reach verdicts. But, if you are asked to retire to consider your verdicts late in the afternoon when you may very well be tired, it is only right that I should tell you that I will not accept verdicts from you before a certain time, to allow you time to recover from your tiredness and time to adequately deliberate. I remind you, at this important, but very late stage in the trial, to continue to keep an open mind. We will resume, gentlemen, at 9 o'clock tomorrow morning, I repeat, 9 o'clock tomorrow morning, 9 o'clock tomorrow morning. I said that three times on Friday afternoon. I have said it three times this afternoon! Mr Courts Officer, would you please take charge of the assessors.

ASSESSORS RETIRED [4.37pm]

 

[HIS HONOUR TO COUNSEL]

 

HIS HONOUR: Mr Registrar, would you please adjourn the Court until 9 am tomorrow morning.

 

ADJOURNED UNTIL 9.00 AM,

TUESDAY, 11 APRIL 2000 [5.00pm]