HIS HONOUR: I understand the assessors have a request to make and for that purpose I will invite them in. Mr Courts Officer, would you bring in the assessors, please.

 

ASSESSORS RETURNED [10.22am]

 

HIS HONOUR: I want to address these remarks to the foreman. Are you, sir, the foreman?

THE INTERPRETER: Yes, sir.

HIS HONOUR: I understand that you have a request to make of me; you want some help and it may be that you did not understand that any request for assistance must be made in open Court, but perhaps I can assist you by asking you to confirm that you handed to my Registrar a request a little while ago, and that is a request that you have made available to you the transcript of the evidence of a list of witnesses.

THE INTERPRETER: Yes, sir.

HIS HONOUR: I will mention in open Court, and for the transcript, the names of the witnesses who are on this list which I think is in your handwriting, Mr Foreman. I have had an opportunity to peruse that list and I think, subject to any discussion I will have with the lawyers, I think your request can be met. I noticed during the trial, and I would understand, as I imagine all the lawyers would, that you have been taking notes, maybe the description is `copious notes', during the trial. Do I understand that your request for the transcript to be made available to you is to enable you to, in effect, check your notes against the actual transcript?

THE INTERPRETER: Yes. (SPEAKING FOR HIMSELF): They want to say something, sir.

HIS HONOUR: Yes. Just a moment. I just urge you, Mr Foreman, that we are only talking about a request for some assistance at the moment; we are not talking about any verdicts.

THE INTERPRETER: With the greatest of respect, sir, I would just like to say this: when the Registrar came to get us in to Court, we had reached a decision, sir, and we were about to advise the Court that we would withdraw the request that we had tendered.

HIS HONOUR: So do I understand that the request, which was set out on this piece of paper with a list of witnesses on it, is now withdrawn?

THE INTERPRETER: Yes, with the greatest of respect, sir.

HIS HONOUR: And, speaking to you just informally, for the moment, Mr Foreman, do I understand you to be saying that you now have reached verdicts? I do not want you to tell me what they are, but, yes or no: have you reached verdicts?

THE INTERPRETER: Yes.

HIS HONOUR: Gentlemen, thank you for that intimation, but there are a number of formalities that need to be attended to. I am not in a position, as the Trial Judge, to accept your verdicts at this minute, but I would expect to be in a position to do so very soon. I know I can expect of you a little for of the patience you have exhibited throughout this long trial, and so have many other people. I ask you to be patient with me on this occasion, as you return to the assessors' room for what I hope will be no more than 5 or 10 minutes.

When you return, you will be asked to take your seats where you are now sitting, and, when we are ready to take the verdicts, you, Mr Foreman, will be asked to stand while I ask you some questions in relation to the verdicts. Do you understand, Mr Foreman?

THE FOREMAN: Yes.

THE INTERPRETER: Thank you, sir.

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

 

ASSESSORS RETIRED [10.31am]

 

HIS HONOUR: I propose to leave the Bench for five or ten minutes.

 

SHORT ADJOURNMENT [10.32am]

 

RESUMED [10.51am]

 

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

 

ASSESSORS RETURNED [10.52am]

 

HIS HONOUR: Would the two accused please stand. Would the Foreman please stand.

Gentlemen assessors, are you all agreed upon your verdict on the charge of murder which the accused Leafa faces?

THE INTERPRETER: Your Honour and the dignity of this Court, four of the panellists have agreed and one opposes.

HIS HONOUR: Do I take it, Mr Foreman, that four out of the five of you are agreed upon your verdict on the charge of murder which the accused Leafa faces?

THE INTERPRETER: With respect, your Honour, that is correct.

HIS HONOUR: Do you, the assessors, four out of the five of you, find the accused Leafa guilty or not guilty?

THE INTERPRETER: Guilty, your Honour.

HIS HONOUR: And is that the verdict of four out of the five of you?

THE INTERPRETER: Yes.

HIS HONOUR: The prisoner Leafa may be seated.

Gentlemen assessors, are you all agreed upon your verdict on the charge of murder which the accused Toi faces?

THE INTERPRETER: Your Honour, with respect, four have agreed, and one opposes.

HIS HONOUR: Do I take it, therefore, Mr Foreman, that four out of the five of you are agreed upon a verdict on the charge of murder which the accused Toi faces?

THE INTERPRETER: With respect, yes.

HIS HONOUR: Do you, gentlemen assessors, by verdict of four out of the five of you, find the accused Toi guilty or not guilty?

THE INTERPRETER: With respect, we found him guilty, sir.

HIS HONOUR: And is that the verdict of four out of the five of you?

THE INTERPRETER: Yes.

HIS HONOUR: Thank you, Mr Foreman, you may be seated, and the prisoner Toi may be seated.

The accused Leafa Vitale and the accused Toi Aukuso Cain, having each been found guilty of murder by a majority verdict of the assessors pursuant to section 99 of the Criminal Procedure Act, it remains as a consequence of the duty that is mine, pursuant to section 100 of the Criminal Procedure Act, a procedure which, as I understand it, is unique in the South Pacific Region, it remains for me to decide, as the Presiding Judge, whether I am of the opinion that either, or both, of the two accused should, notwithstanding that majority verdict of guilty in each case, not be convicted and, if I am of such opinion, should be acquitted of the offence.

I propose to take time in the discharge of this important duty and in reaching this decision as to whether either or both of the accused should, in effect, be convicted or acquitted. Accordingly, the Court will be adjourned shortly until tomorrow morning at 11.30 am, and it may then be further adjourned until 2 pm tomorrow afternoon, to enable me to have that time for that consideration.

Before the Court adjourns, I wish to make it clear that I give to defence counsel an opportunity, if they wish to take advantage of it, to make submissions to me as to the decision they might wish to urge me to reach. If they take advantage of that opportunity, I shall then give prosecuting counsel an opportunity to make submissions in response. I would hear submissions, if any, at 11.30 tomorrow morning. I would expect to announce my decision with reference to my duty under section 100 at 2 pm tomorrow.

Out of courtesy to the assessors, who I have not yet even had an opportunity to meet, I tell them that arrangements can be made, if they wish to take advantage of it, for them to be present tomorrow at those times, if they wish.

I, as the Trial Judge, have watched and listened as you, gentlemen assessors, have discharged and announced your important duty and decision. You will have the opportunity to watch and listen as I discharge my next responsibility in this matter.

In the meantime, the two prisoners are remanded in custody, to appear again at this courtroom at 11.30 tomorrow morning, and this Court will now adjourn until 11.30 tomorrow morning.

You, gentlemen assessors, when the Court adjourns, may return initially to the assessors' room, but, after that, you may be returned to your homes. I do remind you, gentlemen, of something that I said to you at the commencement of this trial about the undesirability of assessors discussing with anyone, even after verdict, the nature of their deliberations or what may have happened in the privacy and in the confidentiality of the assessors' room, and I urge you to resist anybody who seeks to speak to you about those matters. And I hope and expect that the people of Samoa, and the media in particular, will respect you, gentlemen, by leaving you to yourselves.

Mr Registrar, would you please adjourn the Court until 11.30 tomorrow morning.

 

ADJOURNED UNTIL 11.30 AM,

THURSDAY, 13 APRIL 2000 [11.09am]