The first of those matters is this. You may recall I emphasised to you that, although this is one trial, this is, in effect, two separate trials, albeit held together. So that, when I do Open, and when I do call the evidence for and on behalf of Toi's defence, it is important that you bear in mind that evidence which is applicable to Toi or against Toi and that which is applicable and against the other accused Leafa. It is important, because you may be left with an impression that the evidence and the witnesses to be called from herein will fall short in terms of it does not answer your questions, or any queries you might have regarding certain evidence that may be, and will be, applicable against the other accused. For it is my intention, indeed, my duty and obligation as an officer of this Court and counsel for Toi, to confine the evidence to that which is against and adduced against the defence of Toi. Having said that, I concede that there is overlap. That which is overlapping I shall leave until final summing-up of all counsel in order to give you some idea as to what applies to who and who should reply to what.

The second point I wish to put to you, at this stage - again, a matter of law; equally important, but, to some extent, of more urgency. It flows out of something which also, again, has been emphasised by his Honour to you in Opening of all counsel two and a half months ago, and this involves the terminology which is called "onus (or burden) of proof". You may recall that you have been told several times in the course of this trial that the onus or burden of proof lies on the prosecution, who brings the charge. In layman terminology, that means the prosecution must prove the accusation they have brought against both accused.

What I want to make the point now flows out of that onus (or burden) of proof. What flows from the onus or burden of proof is this: that onus, that burden, never shifts.

The point, now: the fact that Toi has decided to give and call evidence does not mean that he needs to prove anything. The fact that he will give evidence, and that witnesses will be called on his behalf, does not mean that you should have the mindset that, therefore, he must prove, to your satisfaction, the elements and the evidence he is about to give. The proving of all the elements to this accusation still lies with the prosecution, who brought the charge. All that happens is that this evidence you are about to hear shall be added on to the pool of evidence you already have, so that, at the end of this trial, you will be asked to consider the evidence in total, including this evidence, and balance it out to see whether the charges and the accusations have been proved beyond a reasonable doubt. I remind you, gentlemen assessors, those are matters of law; and please reserve your decision on those matters until his Honour finally directs you on these issues when he does his final summing-up.

I would now tell you who the witnesses are who will be called, and a brief summing-up of what they will say on behalf of the defence of Toi. Firstly, I shall call the accused, Toi, himself, and he will, in most aspects, confirm the statement now in evidence which he gave to the police. The statement I am referring to is the one dated 4 August 1999. He will say to you, and confirm what he said in that statement: namely, that he was asked by the accused Leafa to shoot Luagalau. They haggled over the price, and he will tell you that, in finality, he was given a gun, and he was given 2000 tala. He will confirm what the witness Eneliko has told you with regard to - that Eneliko was asked to go and shoot Luagalau, but that he had told Eneliko not to shoot until the balance of the money is paid.

He will also confirm the evidence of Eneliko, that, with regard to the Prime Minister, he told him not to shoot, to leave the Prime Minister, and he told him not to shoot anyone at his house. He will tell you that, after some time, the money was not paid, and then he visited and spoke to Luagalau and his wife. They went to a prayer meeting and there he decided he will not go through with what he has been asked to do. Having decided that, he will tell you that he returned home and the next day he went to Eneliko's place and obtained the gun he gave Eneliko.

He will confirm the evidence given to you by Aniseko, the driver for Leafa, that, at Vaimoso, Leafa and Aniseko arrived in a van and the gun was given back. More particularly, he will tell you that, on that occasion, there was an argument between himself and Leafa, and that Leafa called him names and swore at him and he had said to Leafa, "Sorry for your plan. We are finished." He will give evidence to the extent that he became sick on the week that Luagalau was shot and, more particularly, on 15 July, the Thursday before the fatal day, he was seen by a doctor and he was diagnosed with double pneumonia and ordered to stay in bed for the next week.

He will confirm the evidence already before you that he was not at the HRPP party on the Friday that Luagalau was shot. He will also deny the evidence before you that Leafa visited him at his house at Vaimoso some time at about 2 o'clock in the afternoon of the Saturday, 17 July. In fact, he will say that, since the giving back of the gun, he never saw Leafa again.

Similarly, he will deny the evidence now before this Court that he had visited Eneliko at Saina, around about the pastor's house, on 17 July, that Saturday, at about 5 pm. In fact, he will confirm to you, and agree with the statement of Eneliko given to the police, the first statement that Eneliko had said that, after the gun was returned to Toi, he never saw Toi again. But he will confirm Eneliko's own evidence, in which Eneliko admitted that he visited Toi at his house when he was in bed, at Vaimoso, sick, on Tuesday, 21 July, following the Friday of the incident. He will deny that he ever had, in his possession, the little handgun that Eneliko said he visited with when he came to the pastor's house and once at his house at Saina.

More importantly, he will say that he had never talked to a person by the name of Alatise Leafa. Not only did he not talk to Alatise Leafa, he never said anything to Alatise or anybody the words now before this Court, "This guy Luagalau is like a dog. When you see that dog, blow him off." He will tell you he did not know anything at all of any dealings between Leafa and Alatise, whichever version of those facts you decide to believe. In fact, he will say to you that, since the day the gun was returned to Leafa, he never had anything to do with any plot to kill anyone.

Finally, he will say something about what is now already before the Court about his mental health. He will confirm the evidence given by Leafa that, in the last two or three years, he had been sick. That twice he had been referred overseas for medical assessment involving, amongst other things, his mental health. That, since the visits overseas, and in the last two or three years, he has been on medication for ailments up to the present day. He will confirm that, amongst other things, his mental state is that his short-term memory and some long-term memory is affected, and that he is still suffering that to the present day. But, for what he can remember, he is anxious to get on the stand and have his say, and try and tell it to you, in his evidence under oath.

More importantly, at the time he was taken to the station by the police, on 3 August, and when he made his statement on 4 August, he was still affected, and with the added upset of being locked up, he made the statement that is now before you. So, while not contradicting the statement in total and while accepting and confirming the statement in total, there is some detail in there that he needs to fill in and put in chronological order.

The next two witnesses are Mrs Pauline Cain, wife of accused Toi, and Mrs Caroline Lafi, the daughter of Toi. These two I would categorise as the nurse (or nursing) witnesses, because these are the two who looked after Toi around the clock when he became sick with double pneumonia, on or about 15 July, right up until 23 July, the Sunday following. My correction - the Sunday following is not the 23rd; it is the 25th. I apologise. But, more importantly, these are the two witnesses who will give evidence to you that Toi never left the house on the Saturday, 17 July, that other witnesses have said he was seen in Saina picking up Eneliko; and neither did he leave the house on the Monday, 19 July, that Eneliko has told us Toi arrived at his house at Saina with a gun. And, more importantly, perhaps, the two will also tell you that there was never any visits from Leafa to Toi at his home at Vaimoso on Saturday at 2 o'clock, 17 July 1999.

Finally, the last two witnesses are doctors. The first doctor is Dr Leao Talalelei Tuitama, who will give evidence, and he will tell you, according to his records, that he had visited and diagnosed - assessed his health on Thursday, 15 July, and he was the one that confined Toi to bed rest. The final doctor is a psychiatric doctor. He is the Chief Psychiatric Officer, who is a medical doctor from LBJ Hospital in American Samoa, who saw Toi in August of last year, and assessed his mental capacity and abilities. His name is Dr Malaefou Elisaia, from the medical hospital of LBJ in American Samoa. He will tell you that Toi is not legally insane, but that he is suffering from what he called major depression, interfering with his judgment and short-term memory.

Finally, a non-witness but a matter that, nevertheless, is included in the defence. I am grateful to the prosecution, and Mr Raftery, because he and I are conferring and are coming to some agreement as to the form in which to address this issue. That issue, just briefly for your information and for the information of his Honour, is a matter of ballistics. You may recall the last time that Inspector Poe Ualesi gave evidence, he told you that, in one of the searches he conducted, they found some 303 shell casings from the premises of Harry Cain at Tuanaimato. You may recall that evidence was that there were three casings of 303 and one of .223.

Subsequently, Mr Raftery and I have determined, by actually studying under a magnifying glass the bullets in question, and we have come to the conclusion that those casings were not 303, they were 3030 and that the .223 is not .223, it is, in fact, PS19. In fact, for your information and for the information of the Court, that evidence will be given by an agreed statement of fact admission under section 55.

That, Gentlemen Assessors and the Court, is the Opening for the case for Toi. As I asked you, please keep an open mind and remember what I asked you about trying to separate the evidence applicable to one accused from the other. I thank you for your time and attention. I am ready to call my first witness, sir, but given the time - - - 

HIS HONOUR: Before you consider doing that, I do want to take the morning break some time within the next 20 minutes. We could take it now, and then give your client a clear run through until lunchtime, or we can hear him for 20 minutes and then have the morning break. It is as you please.

MR EPATI: I would prefer to take the morning adjournment now, sir.

HIS HONOUR: Very well, we will take the morning break now and Mr Epati will call the accused Toi after the break. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [10.21am]

 

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

 

SHORT ADJOURNMENT [10.21am]

 

RESUMED [10.46am]

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

 

ASSESSORS RETURNED [10.47am]

 

HIS HONOUR: Mr Epati.

MR EPATI: Thank you. May it please your Honour, I call the accused Toi Cain.

 

<TOI AUKUSO CAIN, sworn [10.48am]

 

<EXAMINATION-IN-CHIEF BY MR EPATI

 

HIS HONOUR: Yes, Mr Epati.

MR EPATI: Would you give your full name for the record?

THE WITNESS: My name is Aukuso Cain Toi. My schooling is Sydney Technical College, Ultimo. My father is - my father is - - - 

MR EPATI: Could you pause there?

HIS HONOUR: I think perhaps he may need to be seated.

MR EPATI: Would you like to be seated?

THE WITNESS: My father's an English soldier who was here during the Boer period. I'm 20 years in Parliament.

MR EPATI: Are you a Member of Parliament representing the constituency of Faleata West?

THE INTERPRETER: Yes.

MR EPATI: And you've been so for the last 20 years, correct?

THE INTERPRETER: Yes.

MR EPATI: I understand you are on medication, are you?

THE INTERPRETER: Yes.

MR EPATI: Are you okay giving your evidence?

THE INTERPRETER: All right, sir.

MR EPATI: Thank you.

HIS HONOUR: Are you comfortable standing in the witness-box, or would you prefer to be seated?

THE WITNESS: I'm okay up here.

MR EPATI: Thank you. Toi, I'll start from your statement, that is now evidence, dated 4 August, given to the police. Do you recall that?

THE INTERPRETER: Yes.

MR EPATI: In that statement, you talked about the incident leading up to the shooting of the Honourable Minister, the late Luagalau.

THE INTERPRETER: Yes.

MR EPATI: In that statement, you told the police that somebody spoke to you about shooting Luagalau; do you recall that?

THE INTERPRETER: Yes.

MR EPATI: Would you tell the Court who that person is?

THE INTERPRETER: Leafa.

MR EPATI: Would you describe, or tell the Court, when, and what was discussed between you two?

THE INTERPRETER: Under the pulu tree, just behind here - that was where we had that contract - at night.

MR EPATI: Behind here. Can you indicate the name of the place, if you can?

THE INTERPRETER: Can you ask another question? It's nearly in my mind, sir.

MR EPATI: Can you remember when?

THE INTERPRETER: Some time in August.

MR EPATI: What year?

THE INTERPRETER: Last year.

MR EPATI: Was this the first time you spoke to Leafa about this?

THE INTERPRETER: Yes.

MR EPATI: What was said?

THE INTERPRETER: We talked; we told about the anger to the Prime Minister; about Leafa; about Luagalau. Not Leafa; we were angry with the Prime Minister and Luagalau.

MR EPATI: Who was speaking to you?

THE INTERPRETER: Myself and Leafa.

MR EPATI: Can you recall what Leafa said?

THE INTERPRETER: We talked about other things. We talked about the "pigi" of Leafa and the Prime Minister.

MR EPATI: By - sorry, I notice the prosecution - is there anything you want to say, or shall I continue?

MR EPATI: I will continue. By "pigi", what do you take him to mean?

THE INTERPRETER: Shoot.

MR EPATI: Who said "pigi"?

THE INTERPRETER: Leafa.

MR EPATI: Who did he say to "pigi"?

THE INTERPRETER: Leafa.

 

[HIS HONOUR TO COUNSEL]

 

MR EPATI: You said "pigi" means shoot. Who did Leafa want to shoot?

THE INTERPRETER: Leva.

THE WITNESS: The Prime Minister.

MR EPATI: What did you say to that?

THE INTERPRETER: I did not reply to that.

MR EPATI: What happened after that?

THE INTERPRETER: We talked and talked and drank our beer.

MR EPATI: Yes.

THE INTERPRETER: We drank our beer and talked about this thing. He gave me 2000 and I took that with me and he said to me, "The 500,000 will be brought tomorrow or the next day or the next day, that it is coming from far away, from overseas."

MR EPATI: Yes.

THE INTERPRETER: I agreed to that and I went with the gun and that money.

MR EPATI: How did you arrive at the figure of 500,000?

THE INTERPRETER: That is correct. I was wrong. He said, "How can you shoot a person with 500,000? It would be expensive now."

MR EPATI: Yes.

THE INTERPRETER: Then he said, "How about if an old woman is to be shot?"

MR EPATI: Yes.

THE INTERPRETER: Then I said that, "It will be a shot according to this size or a very old woman shot with 50,000, for a very old lady 150,000, for a millionaire old woman it will be as that."

MR EPATI: Yes?

THE INTERPRETER: And I said that is what that is to be paid for shooting an old lady, but for these boys, they are big boys, and something big should be used to shoot the big boys.

MR EPATI: What did he say about that? "He", meaning - yes.

THE INTERPRETER: We laughed; sat there and drank our beer, and we laughed. And, again, he said, "How much to shoot these boys - the Prime Minister and Leva?" And I said, "150,000".

MR EPATI: Yes?

THE INTERPRETER: And the driver was sent to get the gun - to get the gun and the money.

MR EPATI: Yes?

THE INTERPRETER: And Leafa said - and the money was given, and I looked at it, and it was only 2000 tala, and I said, "No".

MR EPATI: Yes?

THE INTERPRETER: And Leafa again said that the money will be coming from overseas, that there will be no doubt, and I said, "I will take the money home, to my boy at home".

MR EPATI: Earlier, you mentioned something about a contract.

THE INTERPRETER: (Samoan language)

MR EPATI: Excuse me, I have not finished.

Earlier on, you mentioned something about a contract. Can you clarify that?

THE INTERPRETER: That was the contract under which the 5000 was mentioned, and the 2000 was given, and the other money was coming from overseas.

MR EPATI: Was it discussed who was going to shoot whoever it is?

THE INTERPRETER: The person to shoot?

MR EPATI: Who is going to carry out the shooting?

THE INTERPRETER: Eneliko.

MR EPATI: What happened then?

THE INTERPRETER: I left with the 2000, with the arrangement that it will be given on the next morning, or the following day, or the date after that date, if it was late.

MR EPATI: Were you asked to contribute any money to this money?

THE INTERPRETER: I did not give any money to it. I will not waste any of my money into it. The contract was not mine, it was his.

MR EPATI: You mentioned about the gun and the driver going to get the gun. Was that gun brought over?

THE INTERPRETER: It was brought from the car with the money of 2000 and was left beside our vehicle.

MR EPATI: Do you remember now where this discussion took place?

THE INTERPRETER: Yes.

MR EPATI: Could you tell us?

THE INTERPRETER: What?

MR EPATI: Where you talked?

THE INTERPRETER: Penisula.

MR EPATI: You said this conversation occurred in August last year?

THE INTERPRETER: Wait, give me time to think. May, or some time in July.

MR EPATI: So did you take the $2000 and the gun?

THE INTERPRETER: Yes.

MR EPATI: What did you do with them?

THE INTERPRETER: I went and proceeded to Eneliko. When I went that evening I went and brought Eneliko and I told him this.

MR EPATI: Yes. What happened then?

THE INTERPRETER: I told Eneliko that I had received what I had talked to him about on another date. That a deposit had been received for the shooting of the Prime Minister and Leva.

MR EPATI: What did he say to that?

THE INTERPRETER: Eneliko said that that was very small and that was not sufficient. I told him that the money for the contract was coming from overseas, and that we will have to wait until the money is received before the contract is carried out. When the money is received, then the shooting should proceed.

MR EPATI: Eneliko has given evidence, and he said you said, "We will be millionaires." Did you say something like that to Eneliko?

THE INTERPRETER: We have not reached the stage where that statement will be made.

MR EPATI: I'm sorry, please proceed.

THE INTERPRETER: We went with Eneliko at about 8.30, and we went to the Prime Minister's residence.

MR EPATI: Was this on the same evening, or another evening?

THE WITNESS: The same evening.

MR EPATI: Sorry, proceed.

THE INTERPRETER: We proceeded and u-turned from in front of the Prime Minister's residence. I looked at the Prime Minister, and I laughed. Eneliko likewise laughed. I whispered to Eneliko not to shoot the Prime Minister.

MR EPATI: Yes?

THE INTERPRETER: We sat there for a while, smoked our cigarettes, and then we continued. I told Eneliko that we were going to Leva's house. So we went and we stopped by the side of the road, and I told Eneliko to get out of the car because I knew where Leva's house was.

MR EPATI: Yes?

THE INTERPRETER: I told Eneliko to go, not to look at Leva's house from the seaward side, but to go further upward, and that is where he should be able to see people in the house, because I know Leva's residence very well.

MR EPATI: Yes.

THE INTERPRETER: I told Eneliko to go and view the house from the landward side to see if a person could be shot from that side. So I told him to go landward. So Eneliko left.

MR EPATI: Did you tell Eneliko to shoot anybody?

THE INTERPRETER: I have not reached that. My statement had not reached that point. It is continuing.

MR EPATI: That is all right, please continue.

THE INTERPRETER: I told him at this house, nobody should be shot. The money is small. We wait until the money is received, because, when a person is shot, the person dies and it is finished. But we wait until the contract money is received, and that is when I said the phrase, "We will then be millionaires".

MR EPATI: Yes.

THE INTERPRETER: That was when Falaniko said that was all right, that was ..... and then he left. The distance between Eneliko and myself at that time would be from here to the HRPP.

MR EPATI: You mentioned Falaniko. Who is Falaniko?

THE INTERPRETER: My boy.

MR EPATI: Did you have two people there?

THE INTERPRETER: Only Falaniko. Eneliko, Eneliko.

MR EPATI: Sorry. So you were from where you are standing to the HRPP hall. What happened then?

THE INTERPRETER: About three minutes since he had left I proceeded inland and I continued to the inland from the front of Leva's place and turned from there and then I stopped in front of Leva's place.

MR EPATI: Yes?

THE INTERPRETER: For about four to five minutes, there was still nothing. I then proceeded up to Leva's residence.

MR EPATI: Yes?

THE INTERPRETER: I went up and there was nobody at home, sir. It was about 8.30. And then I called Eneliko. I called four times. I called while I was in front of the residence, sir. I called and called his name, called twice. There was still no Eneliko, and I went back to where we stopped before.

MR EPATI: Yes?

THE INTERPRETER: I tooted the horn of the vehicle, twice or three times. There was still no Eneliko. And then an old lady came and she said that a boy had continued to the seaward, side, so I then went after him. I went to the main road and there was nobody there, so I turned and headed in the Prime Minister's direction. Turned from there, there was nobody there. Came back, there was still no one. Most probably he had taken the track to the seaward side, sir.

MR EPATI: Yes?

THE INTERPRETER: That track leads to Tuileapa's golf course. And then I left. I went home and went to bed. In the morning, at about 10 or some time, I went to Eneliko and I asked him as to where he went to the night before, and he said that was the track that he took that night.

MR EPATI: Did you go up with Eneliko again?

THE INTERPRETER: No, I told him to go that night, to go up and view the scene so that he would understand the scene.

MR EPATI: So did you go up with Eneliko at all at any other time?

THE INTERPRETER: Yes, we went the other night, the third night.

MR EPATI: What happened?

THE INTERPRETER: We went, and Eneliko went up to see, and he came back and said there was nobody, so we came down again.

MR EPATI: Did you go up with Eneliko again, after that?

THE WITNESS: No.

MR EPATI: Eneliko has given evidence that you gave him a gun, which is a 303. Did you give him a 303?

THE INTERPRETER: No. No, I did not give Eneliko a gun, sir. It was the gun that I brought from here that I gave to - that was given to Eneliko; the gun that was received from Leafa.

MR EPATI: What happened after that? Did you see Eneliko again?

THE INTERPRETER: Well, I had several commitments, sir, and did not go back to Eneliko. It was left to him to go and follow it through, sir. But I was told that he did not go. And that was - 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, because there was no money. So I came back to Leafa, and Leafa laughed at me and said that money had not been received.

MR EPATI: What happened then?

THE INTERPRETER: So I went back to Eneliko, and I told him that the contract was in doubt, and so we divided the money - the 2000. I told Eneliko to cut some posts - coconut posts - for me, more than 100 posts. There were two truckloads.

MR EPATI: Did you go up there by yourself at any time?

THE INTERPRETER: We had not arrived at that time - the time that I went there.

MR EPATI: I'm sorry - at your own time, then, when did you go up?

THE INTERPRETER: 1 July, sir. Sir, I went there when I was informed that there would be no money for the contract.

MR EPATI: What happened?

THE INTERPRETER: I went up to the family and just passed the time with the family, sir, because I know the family, because here I bestowed the title to Luagalau.

MR EPATI: What do you mean by "bestowed the title"?

THE INTERPRETER: We had a meeting here, because we have meetings every Thursday, and Tuilaepa said that he had decided that a person be chosen as the Deputy Prime Minister.

MR EPATI: Yes?

THE INTERPRETER: That was the 17th.

MR EPATI: The 17th of what month?

THE INTERPRETER: What's the month next to July?

MR EPATI: Before or after?

THE INTERPRETER: Before, sir.

MR EPATI: So what happened on 17 June?

THE INTERPRETER: Well, at that time, Sailele was standing beside Tuilaepa, and I said that Leva should be appointed the Prime Minister, and the others were angry, because there were a lot of people in the party that wanted to be Prime Minister. So Leva came and put his arms around me and punched me. I, likewise, punched him back, because he had received his Prime Ministership. But no formalities were done, sir. It was left until the following week for the celebration.

MR EPATI: Was it the title of Prime Minister or Deputy Prime Minister?

THE WITNESS: Deputy.

HIS HONOUR: Just a moment, let it be noted that the word "deputy" was expressed in English very promptly.

MR EPATI: Was that the title you were talking about?

THE INTERPRETER: Deputy Prime Minister.

MR EPATI: Coming back then to your visit to Levaula's house on 1 July, could you continue what happened on that visit?

THE INTERPRETER: When I went, it was about 7 or 6.30, it was still daylight when I left and went up. A child called out, "Look at Toi's vehicle" and then Leva came out and we talked outside. Leva was outside. His wife was upstairs when I arrived. They both ran to me when I got there. They punched me, they squeezed my hand and we talked. The whole family came out. We talked, we laughed, we told stories. Then Leva said, "Let's go to church" and I agreed.

MR EPATI: When you were talking to Leva, were you talking to him about any particular thing or not?

THE INTERPRETER: I talked to Leva about my contract, and he told me to come the next morning and we would talk about my contract. He also told me that I prepare or come up with a bid for him for the upcoming celebration of his Deputy Prime Minister.

MR EPATI: What contract of yours was this?

THE INTERPRETER: A tree cutting contract for the whole of Savaii and Upolu. But that had been stopped.

MR EPATI: What did you decide with Leva, on the issue of the contract?

THE INTERPRETER: He said to come the next morning, and then we went to church and Kota, Leva's wife, make a church.

THE WITNESS: Make a prayer.

MR EPATI: Yes?

THE INTERPRETER: And Kota made a prayer. She prayed for Leva and myself. She prayed that God help us, and the woman made a very nice prayer.

MR EPATI: Yes?

THE INTERPRETER: And then another man prayed. They all prayed, and the theme of the prayers were for me, that I had not attended church. And then the leader of the services made the final prayer, and the leader was Kenape. We were brought up and he prayed for us, and he said that we should make the Government a good government, and that we should refrain from arguing. That his ears were hurt of politicians arguing, and that we should do - he was referring to the Opposition and Government.

MR EPATI: What happened after the prayer?

THE INTERPRETER: We came outside, stood beside the car, put our jackets on the car and we talked there, and Leva told me to come early the next morning.

MR EPATI: Yes?

THE INTERPRETER: I will say the other thing, because we have gone forward, and have not talked about the vision of the money. When I came with my over 100 posts, I delivered the posts to their respective places. But my boy Eneliko came with his posts and he had over 300 posts, and he also purchased wire because he had most of the money, sir.

MR EPATI: Can we now go back to the prayer meeting? I'm sorry. What were you trying to say?

THE INTERPRETER: Let's finish Eneliko first.

MR EPATI: Proceed.

THE INTERPRETER: And I told Eneliko not to make his fence there, because he was doing it on government land. I told him the government will catch up with him, and the government will do something to him.

MR EPATI: Could we now go back - excuse me. Answer me this: is the fence post important to what we're talking about, or not?

THE INTERPRETER: So I went, the next morning. The other day is finished. The 1st of July is finished.

MR EPATI: Was - which day are you talking about now? Are we back at the - - - 

THE WITNESS: Yes.

MR EPATI: - - - that prayer meeting?

THE WITNESS: Yes.

MR EPATI: And, after the prayer meeting that evening, what did you do?

THE INTERPRETER: We went - they invited me to go and have dinner at their house. I said no, that their place was too far inland, but mine was close. I did not want to go all that way, and come back. So I went to bed. The next day, I forgot about going first to Leva. I went first to my peanut plantation, to give instructions to the boys there, and, from there, I went to Leva.

MR EPATI: Whereabouts did you go and see Leva?

THE INTERPRETER: To the office. I went there, and only the lady, Donjoe, was there, and I inquired about Leva, and Donjoe said that Leva was there, but had left. So I waited there for about five or six minutes.

MR EPATI: Yes?

THE INTERPRETER: And Donjoe told me that it was better if I go to where Leva was, at a conference. So I went there. I looked inside and noticed that everybody has a tie. So I turned back and went to Eneliko's place. I was there at Eneliko's, nobody was there. I tooted the horn and there still was nobody there. I went back to my vehicle and came down, came to my home, and then, from there, to the plantation.

MR EPATI: Why did you go to Eneliko's place?

THE INTERPRETER: To bring the gun.

MR EPATI: Why did you want to get the gun?

THE INTERPRETER: The contract was finished. There was no money.

MR EPATI: After Eneliko's place, where did you go?

THE INTERPRETER: Sir, to the plantation. It was a different occasion. That was in the morning, but there was another time in the evening, about 6-6.30, after the plantation, I went to Eneliko's place. I went to Eneliko's and a girl came over, wearing a wrap-around, and I told her to bring the gun - to get the gun that Eneliko has asked me to bring. So she went and came back with the gun. So I got the gun, put it inside, and then I came home. I arrived home, a relative told me that a man was there, coming to see me.

MR EPATI: Yes?

THE INTERPRETER: When I went over, 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."

MR EPATI: Yes, what happened?

THE INTERPRETER: He uttered many swear words, and I then said, "This is your gun. I'm sorry, the contract could not continue. The boy cannot be shot, and the other thing is that there is no money for the contract."

MR EPATI: Yes?

THE INTERPRETER: And then I told him to take his gun and leave; that we were finished, that no contract should be done like that, sir. I have been to him four or five times, but there was still no money for the contract. I told him to take the gun and leave. And he said - - - 

 

[INTERPRETER TO HIS HONOUR]

 

THE INTERPRETER: - - - and then he said, "You wait, you chicken shit. You - - - "

MR EPATI: "Chicken-arsed shit".

THE INTERPRETER: "- - - chicken-arsed shit", and then he said, "You wait. Tell your man to wait. I will shoot his head", and he said that three times, sir.

MR EPATI: Yes? Sorry, I'll repeat the question: yes?

THE INTERPRETER: And then it was finished.

MR EPATI: Did Leafa leave with the gun?

THE INTERPRETER: Leafa left with the gun, with the driver. I grabbed the gun from inside - it was inside my vehicle - and I handed it to him. The muzzle was handed to him, and when he took it, when they left, he was still saying to me, "I will shoot the head off your boy. I will shoot the head off your boy".

MR EPATI: Did you see Leafa again, after that day?

THE WITNESS: No.

HIS HONOUR: Just stop there, please. This is probably a convenient time for us to have the luncheon adjournment. The last answer, "No", was answered in English, as, indeed, some of the other previous answers were laced with the occasional English word.

Toi Aukuso Cain, we are going to have the luncheon adjournment now. You may, in a moment, step out of the witness-box. During this adjournment of the trial, you may speak to no one else other than your own lawyer, should he want to speak to you. You may step out of the witness-box.

 

THE WITNESS WITHDREW [11.59am]

 

HIS HONOUR: Gentlemen, we will have the luncheon adjournment. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED 11.59am]

 

HIS HONOUR: Mr Registrar, would you adjourn the Court, please, until 2 pm this afternoon.

 

LUNCHEON ADJOURNMENT [12.00noon]

 

RESUMED [2.08pm]

 

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

 

ASSESSORS RETURNED [2.08pm]

 

TOI AUKUSO CAIN

 

HIS HONOUR: Yes, Mr Epati.

MR EPATI: Thank you.

 

EXAMINATION-IN-CHIEF BY MR EPATI CONTINUING [2.09pm]

 

MR EPATI: Toi, when we broke for lunch, you had just stated in evidence that, after the gun was returned to Leafa on 2 July, you never saw - or did not see Leafa again. Is that true?

THE INTERPRETER: That is very true, sir.

MR EPATI: We have heard evidence from a police officer, whose name is Ututau Pasese, that, on the Saturday following the Friday of the shooting of Luagalau, he saw Leafa saying goodbye to you at your home at Vaimoso. Do you recall that evidence?

THE INTERPRETER: I do not know anything.

MR EPATI: Did you see Leafa on the afternoon of Saturday, 17 July, at your place?

THE INTERPRETER: No. No, I did not see Leafa. I did not see that person.

MR EPATI: After Leafa took the gun from you, when was the next time you saw Leafa?

THE INTERPRETER: When Leafa took the gun - when the gun was taken, on that 2 July, I had not met up with that person Leafa again. We only met up at Tafaigata.

MR EPATI: Was this when you were both held in custody on charges on this matter?

THE INTERPRETER: Yes.

MR EPATI: Now, I come to Eneliko. After you took the gun from Eneliko, or from the girl at Eneliko's place, on 1 July, did you see Eneliko again?

THE INTERPRETER: No, sir, I did not see him again, sir. The last I saw him was when he came to visit me, sir, while I was ill, sir, but that was not the true reason, sir. He came to spy on me.

MR EPATI: I'll come back to that visit, but, did you visit the village of Saina on the Saturday evening of 17 July?

THE INTERPRETER: No.

MR EPATI: Eneliko also said, in evidence, that you visited his house on the Monday, 19 July, following Saturday the 17th?

THE INTERPRETER: No, I did not go back.

MR EPATI: He also said that, when you visited on both the Saturday and the Monday, that you had a handgun on the front seat of your vehicle. Is that evidence true?

THE INTERPRETER: Can I have the Bible that was here? I'll swear on the Bible that there was no gun. I did not take a gun, I did not go anywhere that day. I was at home, sick.

HIS HONOUR: There will be no need for you to have the Bible. You have already held the Bible, and you only need answer the questions truthfully.

MR EPATI: Thank you, your Honour.

And also, Eneliko said that, on the visit of Saturday the 17th, you told him not to tell anyone about your dealing with him over the contract, as you put it, of the shooting of Luagalau. Is that evidence true?

THE INTERPRETER: No. Sir, the reason why Eneliko has come in and said all those bad things about me was because of his fence that was removed by Government, or by men of the SIG. And he thought that I was the one that reported that. That was why he made those things about me. He came in and he lied, lied, lied, sir, because Eneliko is the most lying person, sir.

MR EPATI: I'll leave Eneliko aside for now. I want to ask you about Alatise Leafa. Did you talk to Alatise at all about shooting Luagalau?

THE INTERPRETER: No. I did not talk to Alatise and I do not know that person, Alatise. He also mentioned that, when he came up, we met or he met me coming with a hippy. If we go to Eneliko and bring Eneliko now, Eneliko's haircut is up here (witness pointing to just behind the back of his head). When we were going around with Alatise before this thing, he had a clean-cut haircut. But if a vehicle is sent now to bring Eneliko, you will find that his hair is down here. Because he was found and his cattle fence was removed, he went around and spread bad things - bad rumours about me.

MR EPATI: I was just asking you about Alatise. Can we just concentrate on Alatise, please.

THE INTERPRETER: I do not know the person Alatise.

MR EPATI: Well, specifically, there was evidence that you and Leafa and Alatise met at Leafa's office and discussed the shooting of Luagalau. Did that happen?

THE WITNESS: That will be the day.

THE INTERPRETER: I swear that I did not see that person up there at Leafa's office.

 

[HIS HONOUR TO THE REGISTRAR]

 

MR EPATI: He also said that - this is Alatise not Eneliko - Alatise also said that you said to him, Alatise, "Luagalau is like a dog. If you see that dog, blow him away." Is that evidence true?

THE INTERPRETER: I do not know where I said that to Alatise. I heard that over the 2AP and I did not know - that is not a true thing. That was a made up word.

 

[HIS HONOUR TO COUNSEL]

 

MR EPATI: Did you - Toi, did you mention, in your last answer, the words "I am remorseful" - in Samoan, "ua ou salamo"?

THE INTERPRETER: Yes, but I mentioned it by mistake, sir. The words just came out mixed up, sir.

THE WITNESS: He is right, there, who pointed out.

 

[The witness, in saying those last words in English, pointed to Mr Latu

at the prosecution Bar Table]

 

MR EPATI: Yes. Just to clear that up, the person you pointed over to indicated that it was not connected to anything when you said that. But I ask you: was that connected to anything or not?

THE INTERPRETER: ..... very angry. "Angry" was the word that I used. I did not know that I was actually saying "remorseful", sir. I could not recall "angry", and I mixed up "remorseful" with "angry", sir.

MR EPATI: And, finally, with regard to Alatise, did Alatise or Leafa ask you to stay away from Luagalau's place?

THE INTERPRETER: No, that is not correct. That is being very proud, sir, and making up those stories - those words. I could not go back to Luagalau's place, sir. It was very recent, the 16th, when that thing was made. I could not go back, sir.

 

MR EPATI: Can you just pause for a minute. First of all, why could you not go back to Luagalau's place?

THE INTERPRETER: I could not go back to that family's house because of this thing, people moving around, and I am not used to going there.

MR EPATI: What people moving around are you referring to?

THE INTERPRETER: I did not mention any people.

MR EPATI: Okay. What did you mean when you said "that thing - the recent thing close to the 16th"?

THE INTERPRETER: That thing, what I did not mention the 16th.

MR EPATI: Okay. Let's talk about your mental health, if we may. There is evidence from Leafa that you are mentally affected to the extent that he said you had not addressed Parliament in the last two years. Is that evidence correct?

THE INTERPRETER: That is very wrong. I could not go there. It is only because I did not want to speak, that was why I did not speak.

MR EPATI: He mentioned - Leafa, this is, said that you had sought psychiatric treatment twice overseas; is that true?

THE INTERPRETER: That is correct. But, when I go overseas, I do not make speeches overseas.

MR EPATI: What was the matter with you that made you seek treatment overseas?

THE INTERPRETER: Very big reasons. I cannot explain it. Should I explain it, then people would say that I am lying. But I would rather leave it like this.

MR EPATI: Can I persuade you to just give us a brief idea?

THE INTERPRETER: It's obvious from the way I speak, I do not speak like that. When I make speeches, everybody listens, but now, when I make a speech, it will only be one foolscap.

MR EPATI: Can you tell us why your speech is like that, short?

THE INTERPRETER: The reason for my speech was because I was not appointed a member of the Cabinet, a Minister by Tofilau, and, when that did not happen, it was said that my mind was not good and required to be taken overseas.

MR EPATI: Was your mind affected at all?

THE INTERPRETER: I don't know. When I was taken to the doctor, a doctor said that I had - - - 

THE WITNESS: Stroke.

THE INTERPRETER: I had stroke, sir. Had stroke here. For three to four days I was unconscious, and then I was taken overseas.

MR EPATI: And, because of that stroke, what happened? Is this connected to your mind at all, or not?

THE INTERPRETER: I don't know.

MR EPATI: Finally, Leafa has given evidence about an incident involving your selling cows to him. Can you recall that?

THE INTERPRETER: Not to him, to another person, that I sold the cows to.

MR EPATI: Could you pause there, please?

THE INTERPRETER: A company of Leafa. I went in the taking of the cows. The cows were loaded onto a truck, and the boys tried to push them up the truck, but the cows refused to go up. They stood there. They were looking at me. They tried to push the cows up. They looked at me. They cried. So, after three days of taking up the cows, and, when I went over, the family had locked the cows in a paddock like this hall. So I went up there. I whistled and all the cows came running - they all came running to me. They cried, the cows. I stayed there with the cows that whole night until 3 or 4 in the morning, when I decided to go down to the family. So I stayed there until 3 in the morning, and then decided to go down to the family. When I arrived at the family, they were all asleep, and I waited there until daylight when the man woke up and the wife woke up, and then we had a discussion. The discussion lasted until 10. It was only - they only decided to release the cows when I cried. If I had not cried, they would not have allowed the cows to come back to me.

MR EPATI: So you took the cows back?

THE INTERPRETER: Yes. We went back with the boys - - - 

 

[HIS HONOUR TO THE REGISTRAR]

 

THE INTERPRETER: - - - Yes. We went back with the boys to collect the cows. When the cows arrived back at the paddock, they jumped up and down. They were very pleased that they had at last come back home.

 

[HIS HONOUR TO THE ASSESSORS]

 

MR EPATI: So what was the reason why you brought back the cows?

THE INTERPRETER: I - because of my love for the cows.

MR EPATI: Well, why did you sell them in the first place?

THE INTERPRETER: The cows?

MR EPATI: Yes.

THE INTERPRETER: I purchased the cows because I want the cows, and I have several cows.

MR EPATI: What I meant was: why did you sell the cows to this other man?

THE INTERPRETER: The one that is - the cows were taken to?

MR EPATI: Yes.

THE INTERPRETER: Because I wanted to sell, and then I refused to sell.

MR EPATI: Thank you, Toi. Would you please stay there, and answer any further questions? Thank you.

HIS HONOUR: Mr Toailoa?

<CROSS-EXAMINATION BY MR TOAILOA [2.47pm]

 

MR TOAILOA: Toi, can you recall when was the last time that you were a Minister of Cabinet?

THE WITNESS: 1996. Am I right? Correct me if I'm wrong.

MR TOAILOA: But, as far as you can recall, it was around about 1996; is that what you are saying?

THE INTERPRETER: I suppose so, sir.

MR TOAILOA: And, at that time, it was Tofilau Eti who was Prime Minister, correct?

THE INTERPRETER: Yes.

MR TOAILOA: And then a general election followed. You were re-elected as a Member of Parliament, but you were not re-appointed as a Cabinet Minister. Is that correct?

THE WITNESS: That is true.

MR TOAILOA: Now, am I correct that the reason why you were not re-appointed as a Cabinet Minister was because you had, more or less, volunteered to Tofilau that you were prepared to step down, in order to make room for some new blood to come into Cabinet?

THE INTERPRETER: No, sir.

MR TOAILOA: But, in any event, you were not reappointed by Tofilau, correct?

THE WITNESS: That's true.

MR TOAILOA: But, for quite some time, when you were a Cabinet Minister, you had been looking after the portfolio of Post and Telecommunications, is that correct?

THE WITNESS: That is true.

MR TOAILOA: Now, during your time as Minister for that Department, were there any suggestions by other members of Cabinet that that Department ought to be corporatised?

 

[HIS HONOUR TO COUNSEL]

 

MR TOAILOA: Now, Toi, do you remember the question that I asked you, or do you want me to repeat the question?

THE WITNESS: They started out going to corporatisation.

MR TOAILOA: And is it not correct that Tofilau did not really like the idea of that Department being corporatised; do you agree with that?

THE INTERPRETER: Yes.

MR TOAILOA: And were you aware then that that was the reason why Leafa Vitale was taken away from Public Works and appointed as Minister for Post and Telecommunications, so that he could resist any attempts by other members of Cabinet to corporatise that Department?

THE INTERPRETER: Yes.

MR TOAILOA: So were you also aware that, when Leafa's Public Works portfolio was taken away from him, it was done through mutual understanding and mutual agreement between Leafa and the Prime Minister at the time, Tofilau Eti Alesana; do you agree with that?

THE INTERPRETER: Yes.

MR TOAILOA: And were you also aware that, when a replacement Minister was sought for the Public Works portfolio, Leafa had supported the appointment of Luagalau Levaula Kamu?

THE INTERPRETER: Yes.

MR TOAILOA: Now, you've testified in this Court that there was never a meeting between yourself, Leafa and Alatise. Now, do you recall saying that?

THE INTERPRETER: No.

MR TOAILOA: Is it, therefore, your evidence that there had never been a meeting between yourself, Leafa and Alatise where you had discussed the shooting of Luagalau; is that so?

THE WITNESS: Never, never, never, never, never.

MR TOAILOA: I take it with the expression of your "never" that you would swear a hundred times that there was never such a meeting; is that so?

THE INTERPRETER: Yes.

MR TOAILOA: You can even say that a thousand times, that there was never such a meeting; is that so?

THE INTERPRETER: I can.

MR TOAILOA: Is that because there was, in fact, no such meeting?

THE INTERPRETER: Never a meeting like that.

MR TOAILOA: Is that also why you say that you do not know the person called Alatise?

THE INTERPRETER: Yes, true.

MR TOAILOA: So if you had met Alatise on the road during that time, you wouldn't have known him from anybody else that you don't know; is that so?

THE INTERPRETER: I did not know Alatise.

MR TOAILOA: If you were driving your vehicle, and Alatise was driving a vehicle along the same road and you would be passing each other, you wouldn't have tooted your horn, would you, because you wouldn't know Alatise. Is that what you are saying?

THE WITNESS: No, no, no, sir.

MR TOAILOA: So when Eneliko told this Court that there was a time when you and him went up to Luagalau's place, that your vehicle and Alatise's vehicle passed each other and you tooted your horn, that would not be correct; is that so?

THE INTERPRETER: No, that is not true, never a truth in that and that is Eneliko's habit to defame me - - - 

MR TOAILOA: Would you say that - - - 

HIS HONOUR: Just a moment, I think the witness may have said something else, did he?

THE INTERPRETER (SPEAKING FOR HIMSELF): He started by saying something, sir.

HIS HONOUR: Had you finished answering your last question?

THE INTERPRETER: What question?

HIS HONOUR: You proceed, Mr Toailoa.

THE INTERPRETER: Can we have that question?

MR TOAILOA: You say that Eneliko's testimony regarding that matter is incorrect. Now, do you say that what he told this Court is not only incorrect but it was a lie?

THE WITNESS: No, sir.

THE INTERPRETER: No, sir, that is a lie. No, sir, that is not true. I did not go to that house. I - - - 

MR TOAILOA: I wasn't asking you whether you went to a particular house.

THE INTERPRETER: The last - can I complete that?

MR TOAILOA: I am sorry.

THE INTERPRETER: The last I went to that house was Tuesday, the 2nd, sir.

MR TOAILOA: Toi, I wasn't asking you whether you went to a particular house. All I was asking you: whether - are you also saying that what Eneliko had told this Court is a lie?

THE WITNESS: Definitely is a lie.

MR TOAILOA: And would you also say that Alatise's testimony, when he said that there was a meeting between you and Leafa and him, that that was also a lie?

THE WITNESS: It's a lie.

MR TOAILOA: Now, your counsel had also put to you the words which Alatise told this Court were the words that you said to him. Now, do you recall those words that were asked - that were put to you by Mr Epati?

THE INTERPRETER: No. No words like that were said. I have never met that person, Alatise.

MR TOAILOA: Yes, but do you recall the words that were mentioned to you, and they were that "Leva is like a dog, and if you see him, blow that dog away". Do you recall those words?

THE WITNESS: I feel pity for Leva, but I never heard those words, sir - never, never. I saw that - those words in a statement of Alatise, and I'm surprised that he put it down.

MR TOAILOA: Now, am I correct, Toi, that,for most of your life, you are well known as an animal lover - a person who loves animals?

THE INTERPRETER: Correct.

MR TOAILOA: And, in particular, cattle and dogs.

THE INTERPRETER: Yes.

MR TOAILOA: Now, am I also correct that, at one stage, you had close to 100 dogs?

THE WITNESS: That's right.

MR TOAILOA: And am I correct that you, yourself, would not harm a dog?

THE WITNESS: That's right.

MR TOAILOA: Let alone shooting, or even thinking or talking about shooting a dog; is that so?

THE WITNESS: That will be the day.

THE INTERPRETER: Even a chicken-eating dog, I will just chase that dog away.

MR TOAILOA: Is that more reason why you are saying that you could never have said such words to Alatise because, when you think about dogs, you never want to shoot a dog?

THE INTERPRETER: I would be ashamed, very ashamed to say a statement like that.

MR TOAILOA: Okay. Now, let's now come to the part of your evidence where you say you had a meeting with Leafa at the Penisula. Now, firstly you said that meeting was in August of last year, and then later on you said it was either some time in May or July of last year. Now, which is the date that you want to refer to, of those three dates?

THE INTERPRETER: June, but I do not know the date. It was some time beginning - end of June.

MR TOAILOA: So you now realise, Toi, there are now four months that you have mentioned. You first mentioned August and then you mentioned May or July, but now you are saying it is June. That means four months.

 

[COUNSEL TO HIS HONOUR]

 

HIS HONOUR: Toi, we are going to have the afternoon break now. You will be able to go to the place where you are usually held during an afternoon adjournment, but the advice I give you now is that you should not discuss your evidence with anyone.

THE WITNESS: Okay, sir.

 

[HIS HONOUR TO THE REGISTRAR]

 

ASSESSORS RETIRED [3.11pm]

 

THE WITNESS WITHDREW [3.11pm]

 

HIS HONOUR: Mr Registrar, would you, in a moment, adjourn the Court for the afternoon break.

 

SHORT ADJOURNMENT [3.12pm]

 

RESUMED [3.34pm]

 

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

 

ASSESSORS RETURNED [3.34pm]

MR EPATI: Your Honour, before the Court resumes, examination of the relevant transcript has shown that my learned friend, Mr Toailoa, is quite correct. My apologies. I withdraw my objection. "As you were", I guess. He may continue.

HIS HONOUR: Yes. Mr Toailoa, thank you. You continue.

 

TOI AUKUSO CAIN

 

CROSS-EXAMINATION BY MR TOAILOA CONTINUING

 

MR TOAILOA: Now, Toi, just before the break, I was asking you, or beginning to ask you, about the part of your evidence where you were talking about a meeting at the Penisula with the accused Leafa. And I was beginning to bring to your attention the relevant times that you have referred to, insofar as to when such a meeting took place. And, so far, you have told, or you have given the Court, four different months. Originally you said it was around August; then, later on, you said it was either May or June; and then, just prior to the break, you told the Court that this meeting - sorry, let me rephrase. Secondly, you then said it was either May or July; and, just prior to the break, you were telling the Court that it was around June. Now, given those different times, is it your evidence that, if there was such a meeting, you really could not recall when that meeting took place?

THE INTERPRETER: I agree that I was wrong, but the correct date of that meeting was either the last date of June, or the first day of May. No-one anticipated that that meeting was going to take place.

MR TOAILOA: But do I understand that the situation, Toi, is that really you cannot recall the exact date?

THE INTERPRETER: No, I cannot recall the date, but it was somewhere in June, sir. Either the 28th or the 29th.

MR TOAILOA: Now, you've also told the Court that sums of money were discussed, and some of them were quite substantial. Now, my question is: what was the sum of money that you say was agreed upon to be the payment if you and your man were to shoot the Prime Minister and Luagalau?

THE INTERPRETER: A million, sir.

MR TOAILOA: I see. Now, during your evidence-in-chief, a million was never mentioned; do you realise that?

THE INTERPRETER: A million was never mentioned, because I had forgotten that. The statement that I made, made by Faapopo, when I came in the morning, I made that statement. But the night before, I had not had a sleep because of the cold cement.

MR TOAILOA: Yes. I had not asked you anything about that statement. I was merely asking you about what you have said in your testimony, in your evidence-in-chief. Are you now saying that one million tala was the amount of money that was offered to you?

THE WITNESS: 500,000.

MR TOAILOA: But how about the million that you mentioned just a little while ago?

THE INTERPRETER: That was for later. That was the thing for the Prime Minister, but I had decided that the Prime Minister would not be done with. The reason why 500 was made was so that Leafa would not be able to get that money and eventually the boy would not be shot.

MR TOAILOA: So who suggested the figure of 500? Was it Leafa or you?

THE INTERPRETER: Me.

MR TOAILOA: So are you saying that that was your price that you stated to Leafa?

THE WITNESS: That is right.

MR TOAILOA: Okay. When you said that to Leafa, what was his reply to you?

THE WITNESS: He refused it.

MR TOAILOA: So he didn't agree; is that what you are saying?

THE WITNESS: (Samoan Language) and then he finally agreed to it.

THE INTERPRETER: He did not to agree to it during the course of this drinking.

MR TOAILOA: At that point in time, did you truly believe that Leafa could obtain 500,000 tala?

THE WITNESS: I believe - - - 

 

[COUNSEL TO HIS HONOUR]

 

HIS HONOUR: Toi, you, in answering the questions of counsel, have, on many occasions, answered in Samoan.

THE WITNESS: That's right.

HIS HONOUR: And, on some occasions, you have answered in English; and, on other occasions, you have answered partly in Samoan and partly in English.

THE WITNESS: Sorry.

HIS HONOUR: The latter is not very satisfactory. Which is your preference to have the questions and answers given to you and by you: in Samoan or in English?

THE WITNESS: I'd rather have in Samoan, so that we can hear, because it's far away from here.

HIS HONOUR: Very well. Well, I encourage you to stick to your word on that, and, wherever possible, resist the temptation to answer in English, and answer the questions in Samoan, whereupon they will be translated into English. Yes, Mr Toailoa?

MR TOAILOA: Now, I was asking you, Toi, whether - at the time, whether you truly believed that Leafa can obtain such a large sum of money.

THE INTERPRETER: I believed he could get that money. I have a lot of friends in town, and those friends have been telling me that my boy has a lot of savings in town. On one occasion, I was told that he has a savings of 300,000; and, on another occasion, I was told that he has 200,000; and I was also told that he has 400,000. And I decided that I should have all of it.

MR TOAILOA: All right. Now - - - 

HIS HONOUR: Did I hear correctly that there was a reference to "my boy"? If so, I'd be grateful if you would just clarify that. I can well understand how it came about, I am not being critical of anyone.

MR TOAILOA: You mentioned the words "my boy". Can you tell the Court who you were referring to exactly?

THE INTERPRETER: This fellow, Leafa.

MR TOAILOA: But then, your evidence is that, over a while, you realised that no large sum was coming; is that so?

THE INTERPRETER: Can we have it again?

MR TOAILOA: Your evidence is that, over a period of time, that large sum of money didn't seem to be coming from Leafa; is that so?

THE INTERPRETER: Yes.

MR TOAILOA: And your evidence is that that was why you then decided to cancel the contract, is that so?

THE INTERPRETER: Yes.

MR TOAILOA: Now, you know that, when you gave your statement to the police, you didn't mention to the police anything about substantial sums of money. That is correct, isn't it?

THE INTERPRETER: Why should I mention Leafa's money?

MR TOAILOA: What I mean is you didn't mention to the police that the contract price that was offered to you was 500,000?

THE INTERPRETER: That was not mentioned.

MR TOAILOA: Nor did you mention anything about a million tala to follow?

THE INTERPRETER: No.

MR TOAILOA: And the only sum of money that you mentioned to the police was a sum of 2000 tala, correct?

THE INTERPRETER: That was the money given on that night; the money to be received was 500,000.

MR TOAILOA: Yes, but what I meant with my question is: the only sum of money that you mentioned to the police was the sum of 2000 tala.

THE INTERPRETER: Yes.

THE WITNESS: I was scared to say that amount of money (Samoan Language).

THE INTERPRETER: I was scared to tell that large amount of money to the police.

MR TOAILOA: Now, you've heard the evidence of Leafa when he testified in Court, and you heard him denying that there was (ever) any meeting between you and him at the Penisula.

 

[HIS HONOUR TO COUNSEL]

 

Now, what do you say about that?

THE INTERPRETER: There was a meeting.

MR TOAILOA: He is also denying giving him any money nor giving him any gun.

THE INTERPRETER: Leafa is lying.

MR TOAILOA: Is it not possible that you are mistaken?

THE WITNESS: Over my dead body (Samoan Language).

 

[HIS HONOUR TO COUNSEL]

 

THE INTERPRETER: I am never wrong.

MR TOAILOA: But sometimes you forget things, don't you?

THE INTERPRETER: I would never forget things like this, things that involve money.

MR TOAILOA: I see, okay. But why did you forget to mention 500,000 and a million tala to the police when you were interviewed by the police?

THE INTERPRETER: I had stated, I did not want to tell them that, because that thing was just between Leafa, myself and my boy Eneliko.

MR TOAILOA: Now, you also described to the police the gun that you received from Leafa; isn't that correct? In your statement to the police?

THE INTERPRETER: Yes.

MR TOAILOA: Am I correct that you told the police that the gun that Leafa gave you was an M16?

THE INTERPRETER: That was what Leafa said to me that it was, an M16. The gun was wrapped in a cloth and I did not open it. It was left lying there.

MR TOAILOA: But you did mention to the police that it was an M16.

THE WITNESS: M16, yes.

MR TOAILOA: You also described the colour of the gun to the police and you told the police that the gun was black and red.

THE INTERPRETER: That is what you get with just giving a statement. I just relayed it to the police. I said it was an M16, black and red, but I did not see the gun.

MR TOAILOA: Now, am I correct that, when you gave this statement to the police, you saw that as your way out of this?

THE INTERPRETER: Way out, how?

MR TOAILOA: That you may not be convicted of the murder of Luagalau.

THE INTERPRETER: If I had known that, I would have done that.

MR TOAILOA: Now, why did you give the statement to the police?

THE INTERPRETER: What statement?

MR TOAILOA: The statement that you gave the police on 4 August last year.

THE INTERPRETER: That was why, up till now, I do not understand why I made it. When the police told me that he was going to make the statement, I got mad with him, and I told him not to interfere with me - that I was going to do my chores; and I was taken back and locked up, and was brought back the next morning.

MR TOAILOA: Now, when you gave the statement to the police, did you believe, at the time, that, by doing so, you would not be charged by the police?

THE INTERPRETER: Yes.

MR TOAILOA: So you thought that, after you had explained what you allege to know to the police, then they will release you from custody. Is that so?

THE INTERPRETER: Yes.

MR TOAILOA: Was there any promise or offer, from any of the police officers to you, that you will be freed from custody as soon as you gave the statement that you gave to them?

THE INTERPRETER: No. I thought that, after making that statement, I would leave.

MR TOAILOA: So you gave that statement on the basis of that belief. Is that so?

THE INTERPRETER: Yes.

MR TOAILOA: Because I take it that, at that time, you were going through a lot of turmoil, having been locked up by the police. Is that so?

THE INTERPRETER: Numerous.

MR TOAILOA: All right, thank you. I have no further questions.

HIS HONOUR: Mr Raftery?

 

<CROSS-EXAMINATION BY MR RAFTERY [4.04pm]

 

MR RAFTERY: As I understand your evidence, you are saying that what you told the police in that statement of 4 August is all true, but there are some extra things that you didn't tell the police. Is that correct?

THE INTERPRETER: Correct.

MR RAFTERY: And those extra things which you left out, you left out for, really, two reasons: one, you either forgot some details; or, two, there were certain things you deliberately left out, such as what you've just been telling us about the money. Is that correct?

THE INTERPRETER: Correct.

MR RAFTERY: And some of the things that you forgot, for example, were exact days or dates that things happened; isn't that correct?

THE INTERPRETER: Yes.

MR RAFTERY: Were those the only types of things that you forgot when speaking to Superintendent Salapo?

THE INTERPRETER: I don't know, because there were several things. In December I wrote my own statement, and I thought that that was going to be put in, in place of this one.

MR RAFTERY: And, when you did that, in December, that was last December, while you were in prison at Tafaigata, is that correct?

THE INTERPRETER: Yes.

MR RAFTERY: And that was a statement you were making for your lawyer, Mr Epati, so that he'd know your full story, is that correct?

THE INTERPRETER: Something like that.

MR RAFTERY: And that's what Mr Epati has tried to do during this Court case, isn't it, to ensure that your side of the story is brought out; isn't that right?

THE INTERPRETER: Correct. There's not much difference, sir, but what I'm doing is nicer, sir.

MR RAFTERY: Right. But the other part of what Mr Epati was doing was ensuring that, today, when you gave evidence, you had every opportunity to tell every little bit of detail, if you'd left something out or forgotten it; isn't that right?

THE INTERPRETER: Yes, correct.

MR RAFTERY: And just so that we can be sure, is there anything that he's left out, or you've left out, that you think we ought to know regarding your involvement in the plot to kill Luagalau?

THE INTERPRETER: Nothing. If you want to believe me, I can give you the statement that I have with me.

MR RAFTERY: As long as nothing has been left out, that's all that's important.

THE INTERPRETER: No. No, nothing. Everything is with you.

THE WITNESS: Mr Raftery.

MR RAFTERY: Thank you. I just want to be clear. We have spent some time learning about the sale of your cows and your recovering them. They have nothing to do with Luagalau's murder, do they?

THE INTERPRETER: I do not know why that was asked.

MR RAFTERY: You are probably not alone, but, there we are! If I could ask you, please, to have a copy of your statement to the police. Actually, you should have the original, which is exhibit P34.

 

[COUNSEL TO HIS HONOUR]

 

[THE SOUND OF RAIN APPROACHING]

 

MR RAFTERY: Now, this is the statement of 4 August made on the afternoon at the police station here in Apia to Superintendent Salapo; isn't that right?

THE INTERPRETER: Yes.

MR RAFTERY: Of course, you had, in fact, spoken to the police on the day before but you had not made any written, formal statement like this, had you?

THE INTERPRETER: Correct.

MR RAFTERY: At the beginning, the first paragraph deals with what I might call formalities; your age, the fact that you're married, children and so on and so forth.

THE INTERPRETER: Yes.

MR RAFTERY: As I understand it, you had been thinking about making this statement all night and had, obviously, that morning as well and had decided to make this statement to Superintendent Salapo; that's correct, isn't it?

THE INTERPRETER: No, no, no.

MR RAFTERY: So when did you first starting thinking about making this statement?

THE INTERPRETER: At the time that I was brought in by Salapo and I noticed that a paper was being brought and I knew a statement was to be made.

MR RAFTERY: But I thought you told us earlier, in one of the answers to questions from Mr Toailoa, that you'd been thinking about it all night. Is that right, or not?

THE WITNESS: I don't think (Samoan language)

THE INTERPRETER: I don't think Toailoa made a question or asked a question like that.

MR RAFTERY: Well, let's put it this way. The day before, the morning before, you had been taken from your home to the police station, hadn't you?

THE INTERPRETER: Correct.

MR RAFTERY: And you had been questioned about the death of Luagalau. That's correct, isn't it?

THE WITNESS: They asked me questions, and (Samoan language)

MR RAFTERY: Could you carry on your answer in Samoan?

THE INTERPRETER: They asked me questions, and I did not want to speak about the matter. I had finished. I was finished on the 4th, and I left.

THE WITNESS: 2nd; finished on the 2nd.

MR RAFTERY: What had you finished on the 2nd?

THE INTERPRETER: The contract. The contract ceased on the 2nd, and Leafa's gun was returned.

MR RAFTERY: So you mean 2 July?

THE WITNESS: The 2nd of (Samoan language)

THE INTERPRETER: 2 June - July. July, sir.

MR RAFTERY: But I'm talking about your time at the police station on 3 August, all right? Do you understand?

THE INTERPRETER: Yes.

MR RAFTERY: And when you came to the police station that morning, they told you that it was in connection with Luagalau's death, didn't they?

THE INTERPRETER: Yes, but I told them that I should be released; that I have nothing to do with the death of Luagalau. And they were concerned, just like me; I too was concerned.

MR RAFTERY: And you weren't released, were you? You were kept at the police station for all the rest of that day, overnight, and the following morning, weren't you?

THE WITNESS: Yes.

THE INTERPRETER: Correct.

MR RAFTERY: And you knew that you were being kept there because the police thought you were, in some way, connected with the death of Luagalau.

THE WITNESS: That's right.

MR RAFTERY: So that, in the 24 hours or more that you had between the first and the second interview, you were in the police station in connection with Luagalau's death, with little else to think about, really. Isn't that correct?

THE INTERPRETER: I was not thinking about a thing.

MR RAFTERY: But the reason why you made the statement that you've now got in front of you is because you knew you had lied the day before. Isn't that correct?

THE WITNESS: I lied because I hate them.

MR RAFTERY: If you'd look at the second page of that statement in front of you of 4 August, and if you look at the last four lines of your statement, and it reads like this, doesn't it:

I felt very depressed yesterday when I had not told the truth to you, because of the temptation. Now is the time, I feel, that I should tell the truth. This is my statement regarding this matter, and it is correct.

And that is - just so that you're aware, Toi, I was reading a translation of the last four lines on page 2 in the Samoan. Do you have that there? Did you follow that, or do you want me to go through it again? And I understand you haven't finished reading, is that right?

THE WITNESS: What can I say? (Samoan language)

THE INTERPRETER: What can I say? I have - - - 

MR RAFTERY: Is that where the sentence ends? Right.

So that what, I suggest, you were doing, in this second statement, or the second time you spoke to the police, was you were anxious to tell them as much of the truth as you could remember. Isn't that correct?

THE WITNESS: That's right.

MR RAFTERY: And this statement was made eight months ago - much closer in time to the events than we are today. Is that correct?

THE INTERPRETER: Can we have the question again, sir?

MR RAFTERY: Yes. When you were making that statement at the very beginning of August last year, it was much closer in time to the events you were describing to the police than we are today, eight months further on. Isn't that right?

THE INTERPRETER: I will not say anything, because I do not understand. But can you ask another question?

MR RAFTERY: Certainly. When you were at the police station last year at the beginning of August, it was only a few weeks after Luagalau's death; that's correct, isn't it?

THE INTERPRETER: Yes.

MR RAFTERY: Today, it is over eight months since Luagalau's death, isn't it?

THE INTERPRETER: Yes.

MR RAFTERY: So that is what I meant when I said that last August was much closer in time to the events you were talking to the police about than we are today. Do you now understand?

THE INTERPRETER: Yes.

MR RAFTERY: So when you spoke to the police then, trying to remember when you first talked with Leafa about murdering Luagalau, you told them that it was about April; isn't that correct?

THE WITNESS: I don't know - I didn't say (Samoan Language).

THE INTERPRETER: I did not tell the police that it was April and I do not know why April is written in there.

THE WITNESS: No. But it's still there. It's still here. I say that - I mentioned April in a paper but I don't know why I put in April for.

MR RAFTERY: Now, the actual word "April" doesn't appear anywhere in your statement, all right. You may not have had the chance of reading through it again recently. But the word "April" does not appear; all right? Can I just point out to you what the second paragraph says, right. On the first page, if you look at the second paragraph.

THE INTERPRETER: Yes.

MR RAFTERY: It says this, doesn't it:

I have been informed by a police officer that I will be investigated regarding a plan that Leafa Vitale and I made to assassinate the Prime Minister and Levaula. It had been four months ago when we discussed it in Leafa's office and other places when we meet.

HIS HONOUR: Mr Raftery, I invite you to ask your question, but then I want to adjourn.

MR RAFTERY: Certainly.

 

[COUNSEL TO HIS HONOUR]

 

HIS HONOUR: Gentlemen assessors, we have just finished the day with some discussion about the admissibility of a question in cross-examination. Hopefully that will be resolved between now and tomorrow morning when we resume. Before I invite you to go with the Courts Officer to the assessors' room, I just want to speak to Toi for a moment.

I remind you, Toi, not to discuss your evidence with anyone during this and any subsequent adjournment of this trial whilst you remain a witness. You may step out of the witness-box now.

THE WITNESS: Okay, sir.

 

THE WITNESS WITHDREW [4.33pm]

 

HIS HONOUR: Gentlemen assessors, this trial will resume at 9.30 tomorrow morning. Would you please go with the Courts Officer, please.

 

ASSESSORS RETIRED [4.33pm]

 

[HIS HONOUR TO COUNSEL REGARDING THE PROGRAM

FOR THE TRIAL]

 

HIS HONOUR: Mr Registrar, would you please adjourn the Court until 9.30 tomorrow morning.

 

ADJOURNED UNTIL 9.30 AM,

THURSDAY, 23 MARCH 2000 [4.35pm]