Was there anything that made you angry with Leva?

And you replied:

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

Do you remember saying that to Superintendent Salapo?

THE INTERPRETER: If that is written on the paper, then that probably is right. But there are other things that have not been completely given to the paper, and that is the quarter.

MR RAFTERY: But, without going into the detail of all that you said, you explained to Superintendent Salapo about losing that contract, and about being told that it would be done by the EPC itself for six months; isn't that right?

THE INTERPRETER: Well, I suppose so, sir. If I said that on the paper, then, most probably, it's that.

MR RAFTERY: Then Superintendent Salapo went on to ask you this:

Was there anything that made you unhappy with the Prime Minister?

And your reply was:

That was the only thing, my contract, where I had served the country for a while, and that, after having talked to Tuilaepa and having explained to him the matter, he was satisfied.

THE INTERPRETER: That is correct. That is correct, sir, but the contract was not something that I made. It was advertised, and I applied, and they re-advertised the contract, and I again reapplied, and later it was accepted, sir. It was all because of Leafa's doing, sir.

MR RAFTERY: Now, this was among the things that you were telling the police that would be the three-quarters of the stuff that was true and correct. Is that right?

THE INTERPRETER: Something like that, sir.

MR RAFTERY: You also explained that you had not been at the HRPP party on the Friday night when Leva was killed, because you were at home, in bed, ill; didn't you?

THE INTERPRETER: Yes.

MR RAFTERY: And this is what you told Superintendent Salapo about that, on 3 August of last year:

When the party was held, I was at home, in bed. I was ill, and my wife, Pauline, was sent to explain or excuse us from the party.

You said that to Superintendent Salapo, didn't you?

THE INTERPRETER: Yes. I was very ill, critically sick, that night, sir. I nearly did not get to the next morning, sir.

MR RAFTERY: So that what you are saying is that what you told Superintendent Salapo was true?

THE WITNESS: Exactly.

MR RAFTERY: And you went on to explain to Superintendent Salapo this: that you had been in bed for five to six days when the party was held?

THE WITNESS: Exactly.

MR RAFTERY: And so, when you were telling that to Superintendent Salapo, that was true as well?

THE WITNESS: Exactly.

MR RAFTERY: But, among what I suggest are the untrue things you told Superintendent Salapo, was when he asked you this question:

Do you know anything about the shooting of Leva?

And you replied:

I know nothing about that incident.

Now, first of all, do you agree you said that in answer to Superintendent Salapo?

THE INTERPRETER: No. No, I replied I did not know, when in fact I knew, because Pauline woke me up in the morning. In the morning, when I woke up, Pauline informed me of that.

MR RAFTERY: But it wasn't just because of what Pauline had informed you. You also knew, didn't you, something about what was happening in the weeks leading up to Luagalau's death?

THE WITNESS: That will be the day. (Samoan Language).

THE INTERPRETER: I do not know anything. I do not know anything, and swear by God, sir.

MR RAFTERY: Now, you've used that expression several times, Toi, "That will be the day". As I understand it, when you use that expression, you are meaning that I am talking rubbish, is that right?

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: The suggestions that I am making to you are rubbish, how about that?

THE INTERPRETER: My apologies, sir, no.

MR RAFTERY: So, when you use the expression, "That will be the day", what do you mean?

THE INTERPRETER: "I do not know anything."

MR RAFTERY: I didn't want you to think that I was thinking you were being offensive to me. All I meant was, that when you say the expression, "That will be the day", do you mean that you reject completely the suggestion I'm putting to you, because it's not true, isn't that right?

THE INTERPRETER: Yes.

MR RAFTERY: Thank you. Now, you asked Superintendent Salapo, when he said to you, "There is evidence against you concerning the death of Leva", you replied that you would like to know "what evidence", or words to that effect, didn't you?

THE INTERPRETER: If that is in the book, then I must have said that, and that was because of him asking stupid questions.

MR RAFTERY: Well, it wasn't a very stupid question, was it, because he went on to explain to you that he had evidence, and he referred in particular to the evidence of Eneliko. Do you remember that?

THE INTERPRETER: Eneliko - as I had stated yesterday, there was nothing wrong between us, but, when his fence was found, he then went around and spread bad stories about me.

 

[COUNSEL TO HIS HONOUR]

 

MR RAFTERY: This is what Superintendent Salapo told us he told you, in answer to your request to know the evidence:

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

And your reply, according to Superintendent Salapo, was:

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

Now, when you said that "I know nothing about that", you were lying, weren't you?

THE INTERPRETER: I don't think I lied. I did not know.

MR RAFTERY: But you knew quite a lot about what Superintendent Salapo was putting to you, didn't you?

THE INTERPRETER: That was related to me, but I knew the truth, sir. We went with the boys to the houses, and showed them to them, as I stated. I laughed first, and they laughed, and I told them not to shoot the Prime Minister. So we went to Leva's house, and I told him to go up, take the gun with him, and to view the house from there; even if Leva was asleep, to view it from there, sir, and his place would be shot, sir, if our money was received. And that was what we wanted: we wanted Leva to be in bed when we shot him, so that, when he was shot, and Leafa inquired, we'll tell him that he was shot, but it missed. And we knew very well that Leafa will not question us about that, because it will only end up in him being sent to gaol, because the moneys that Leafa received are tips from companies, and he has sent them and saved them overseas. When a tender is found for a job of 10 million, 3 million, 4 million, 5 million, he would be tipped with 30,000, 200,000.

MR RAFTERY: When you're talking about him sending this money overseas, are you talking about to Hawaii, or to somewhere else?

THE INTERPRETER: Probably to Hawaii, or any other country that I would not know about.

MR RAFTERY: But, coming back to - - - 

 

[COUNSEL TO HIS HONOUR]

 

MR RAFTERY: Just coming back to what you've told us a moment ago, Toi. You were talking about these tips that he's received. Is this what might be called back-handers or bribes, is that what you're saying?

THE WITNESS: This is why the Public Works (Samoan Language).

THE INTERPRETER: Sir, that is why people want to be Ministers of the Public Works Department, because that is where the money is. That is where you get the money under the table. And that was why this boy Inailau was shot, because Inailau was also doing the same. He wanted tips, tips, tips.

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: Now, you've explained about this. Can you first explain from what source - is this something you know from your own personal experience, or you know it because others have told you? Just answer that question first?

THE WITNESS: Personal experience (Samoan Language).

THE INTERPRETER: Personal experience, and observing it.

MR RAFTERY: Now again, can I just interrupt, Toi. Can I ask you, if you can possibly remember the advice given you yesterday by his Honour, that, when you're answering, if you start in English, can you finish in English? But if you start in Samoan, keep to Samoan.

THE WITNESS: Yes.

MR RAFTERY: Because it makes it very difficult for Mr Masina, who is translating for you. All right?

THE WITNESS: Yes.

MR RAFTERY: You say "personal experience and observing it". And have you personally experienced it, or observed it, in the case of Leafa, when he was at Public Works?

THE INTERPRETER: Yes.

MR RAFTERY: All right. Can I come back to the topic that I was asking you about, which was your conversation with Superintendent Salapo. You said to us a moment ago, and repeated what you've been telling us yesterday, that all that you had done and agreed with Eneliko concerning the shooting. Now, when Superintendent Salapo asked you, in effect, what you knew about it, why didn't you tell him any of the things you've just been telling us in Court?

THE INTERPRETER: I did not want to tell him.

MR RAFTERY: And, in fact, you told him a lie when you said, "I know nothing about it", because you did know something about it, didn't you?

THE WITNESS: Tips.

THE INTERPRETER: Tupe - tips.

MR RAFTERY: But what you knew, just coming back to what I was asking, was that the - you knew about Eneliko. You knew you had given him a gun. You knew that you had been up to look at Luagalau's and the Prime Minister's house with Eneliko - you say with no intention of shooting him - but you knew all these things, didn't you, and you knew Leafa had given you the gun to do it; and you knew you had got the gun back from Eneliko and returned it to Leafa. And what I'm saying to you is: why did you tell none of that to the police at all?

THE INTERPRETER: I explained that. I said that we went with Eneliko to the house, and Eneliko went up, and I followed five minutes later. I called for him, and he was not there, and so I returned.

MR RAFTERY: Are you saying you told all this to Superintendent Salapo on that very first day when he spoke to you?

THE INTERPRETER: No.

THE WITNESS: The first day?

MR RAFTERY: Why not?

THE INTERPRETER: Because that thing had long passed, sir. It finished on 2 July, and when I was brought in, I said I know nothing.

MR RAFTERY: You have - well, should I say this: in the course of evidence, it has been alleged that you have variously described Luagalau as your "best friend"; as "like a son to you"; as someone you "loved more than anybody in the world". If those descriptions truly reflected your relationship to Luagalau at that time, why did you lie to the police and say, "I know nothing about it"?

THE INTERPRETER: Because they questioned me when they, in fact, knew about it.

MR RAFTERY: Why didn't you try and help them?

THE INTERPRETER: Well, I suppose I was stupid. I suppose I erred in that, but they should have continued with their investigation. If I had also assisted them, I doubt if they would have believed my story, sir.

MR RAFTERY: Why did you do nothing to help Luagalau?

HIS HONOUR: In what respect, I think you should - - - 

MR RAFTERY: I will spell it out, your Honour.

You knew, from your discussions with Leafa, that he wanted to kill Luagalau; that's correct, isn't it?

THE INTERPRETER: Under the pulu, yes, we had a discussion under the pulu, and we talked about the money and I told him to pay the money tomorrow, and then I left with the gun. And I went and I stayed with the gun, and it was at my own discretion, sir, no more pule from Leafa, sir, and did not know what was happening.

MR RAFTERY: You, from what you tell us, had no intention of killing Luagalau at all; that's correct, isn't it?

THE INTERPRETER: No. No intention, none at all, sir. That is why the man was sent inland, to look for a tree to be shot, sir. And I knew that Leafa would definitely view it, sir.

MR RAFTERY: But you knew, from that conversation under the pulu tree and other conversations with him, that he wanted Luagalau killed, and he gave you a gun to do it. He promised you money to do it. You knew all that, didn't you, even though you did not intend to kill him?

THE WITNESS: Yes.

MR RAFTERY: You've told us that you gave the gun back to Leafa on 2 July; that's right, isn't it?

THE INTERPRETER: Yes.

MR RAFTERY: Why are you so positive, as a matter of interest, that it was 2 July, when you're not very good at remembering other dates?

THE WITNESS: That girl wrote for me.

MR RAFTERY: Who is that girl you are just pointing out?

THE WITNESS: The big girl there in front.

MR RAFTERY: Are you able to help us with her name?

THE WITNESS: My daughter.

MR RAFTERY: But going back then to whatever day it was when you gave this gun back to Leafa. You knew, didn't you, once Leafa got the gun back, that there was a very real danger that he would find someone else to do the job that you and Eneliko were not going to do, isn't that right?

THE WITNESS: I suppose so.

MR RAFTERY: So what did you do, knowing that Luagalau's life was in danger from Leafa, to try and save Luagalau's life?

THE INTERPRETER: Nothing, sir, because Leafa went with the gun, sir. And that was not the only day that he came for the gun. He came about three times, but I had forgotten to bring the gun, sir. But what you're saying is correct, I should have warned Leva.

MR RAFTERY: You should have warned other people than just Leva, shouldn't you?

THE WITNESS: No, but I know Leafa. He is - he can't do a thing like that. I mean, he can't kill Leva, unless he hire somebody like me.

MR RAFTERY: But the reason why you didn't tell Leva, or the police, or anyone, was because you and Leafa hired someone else, namely Leafa's son, and he did the job for you that Eneliko had failed to do, isn't that right?

THE INTERPRETER: Well, I do not know anything like that. My mind did not entertain that, sir. I do not know that boy, sir. Leafa came and asked that the gun be given to shoot a pig. Well, you ask Leafa there. Leafa is there, and he came and asked, that it was a pig that was mentioned.

MR RAFTERY: And so do you mean that the gun was just temporarily returned to Leafa to kill a pig. Is that right?

THE WITNESS: Permanently returned.

MR RAFTERY: Permanently returned because he wanted to kill a Cabinet Minister as well, isn't that right?

THE INTERPRETER: No.

MR RAFTERY: You've just told us, and spent a long time telling us, that Leafa did want to kill a Cabinet Minister, namely Luagalau, isn't that right?

THE INTERPRETER: Well, I was surprised that night he wanted to talk to me there, and we talked and he mentioned Luagalau and the Prime Minister.

MR RAFTERY: And that he wanted to kill them, isn't that right?

THE WITNESS: Wanted to kill but (Samoan Language)

THE INTERPRETER: Wanted to kill, sir, but not really the Prime Minister, sir. It was more or less Luagalau, sir.

MR RAFTERY: And you've also agreed with us that, when you gave the gun back to him, whatever he might want to do with the pig, you "supposed" that there was a real danger that he'd find someone else to do the killing, because you hadn't, or Eneliko hadn't; that's right, isn't it?

THE INTERPRETER: I did not know that something like that was in Leafa's mind, sir. When the gun was given to him, I was free, sir.

MR RAFTERY: But the way you've described giving it back to him, he was very angry with you because you hadn't killed Leva, wasn't he, and he called you, so you've told us, "a chicken-arsed shit", because you hadn't done the job; isn't that right?

THE INTERPRETER: Yes. Yes, Leafa was very angry, sir, but I don't want to re-mention the word, sir.

MR RAFTERY: And he was very angry because you hadn't killed Luagalau when he thought you were going to do it, isn't that right - you or Eneliko, that is?

THE INTERPRETER: What did he say?

MR RAFTERY: I'm saying the reason why he was angry with you, and swore at you with those words that you don't want to repeat, was because you and Eneliko hadn't done the job that he had wanted you to do.

THE INTERPRETER: I suppose so, sir. I didn't know anything, sir. Knew nothing, sir. To me, I was relieved that the thing had been taken away, sir, and so I went. That evening I went to the golf course and I stayed there.

MR RAFTERY: The reason, I suggest, why you did nothing to warn Luagalau, or to warn any authorities that Luagalau's life was in danger, was because you had given the gun back to Leafa to get someone else to do the job for you and Leafa instead. Isn't that right?

THE INTERPRETER: No. When he came, he said it was to shoot a pig, sir, and his boy at the car also said it was for a pig. And as to the shooting of a person, I did not think that a person was to be shot, sir. To me, it was finished, sir.

MR RAFTERY: And I suggest that it is for the same reason, because you knew that Luagalau was going to be murdered, but by someone else different to Eneliko - - - 

THE WITNESS: No.

MR RAFTERY: - - - that you didn't lift a finger to try and save his life at all?

THE WITNESS: I wish I knew (Samoan Language).

THE INTERPRETER: Well, I wish I knew, sir. I thought it was finished, thought it was over.

MR RAFTERY: And all these phrases like, "my best friend", "like a son", "I loved him more than anybody in the world", are all a sham and a lie, because you, like Leafa, wanted him dead?

THE WITNESS: Shit.

THE INTERPRETER: No, no, no, no, please.

MR RAFTERY: And that was the reason why, on that Saturday after Luagalau's murder, you wanted to make sure that Eneliko kept his mouth shut?

THE INTERPRETER: No, no. I did not go to Eneliko. I was sick, I was very sick on that day. But before I became sick, I knew what was going on, and you would not believe when I say that I was very sick and I nearly died. Had I died, I would have been finished.

HIS HONOUR: I think we will take the morning break before you re-examine, Mr Epati, and also there is a matter that I want to raise with counsel, arising out of the last few minutes. So, we can take that opportunity before we have the morning break.

MR EPATI: I appreciate that, sir.

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

 

ASSESSORS RETIRED [10.38am]

 

[HIS HONOUR TO COUNSEL]

 

HIS HONOUR: You may step out of the witness-box, Toi; and remember not to discuss your evidence with anyone.

 

THE WITNESS WITHDREW [10.43am]

 

SHORT ADJOURNMENT [10.43am]

 

RESUMED [11.09am]

 

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

 

ASSESSORS RETURNED [11.10am]

 

HIS HONOUR: Any re-examination, Mr Epati?

MR EPATI: Just a couple of questions, sir.

 

TOI AUKUSO CAIN [11.10am]

<RE-EXAMINATION BY MR EPATI

 

MR EPATI: Toi, I just want to ask you some questions regarding your speech in Parliament on 16 June last year?

THE INTERPRETER: Yes.

 

[COUNSEL TO HIS HONOUR]

 

MR EPATI: Did you, in your speech on 16 June 1999 say this - I will read it out in Samoan, because it is the record, and the Registrar will translate it:

I, no doubt you are aware, was sick, and am still with that sickness.

Did you say that?

THE INTERPRETER: Yes.

MR EPATI: Did you also say this:

I only wish that I could speak properly. I yearn to speak. Nevertheless, it's coming gradually.

Did you say that?

THE WITNESS: Yes, after two years.

MR EPATI: And finally, did you say this:

I thank my constituency. Although you did not wish me to speak, but I had tried to make this speech and you have been listening to it.

Did you say that?

THE WITNESS: That's right.

MR EPATI: I will say the last bit, which was not translated:

For anything that I have forgotten and have missed in my mind, I ask for your forgiveness.

Did you say that?

THE INTERPRETER: I suppose so.

MR EPATI: Thank you. I have no further questions, sir.

HIS HONOUR: Thank you.

THE INTERPRETER: Is that the full text of the speech?

MR EPATI: Ordinarily, sir, I should be asking the questions. But, just to clarify - no, those are just passages from the speech that you gave. And I have no more questions.

HIS HONOUR: Toi, you have finished giving evidence, and you may now take off your headset and step out of the witness-box.

 

<THE WITNESS WITHDREW [11.14am]]

 

[THE ACCUSED TOI IS VISIBLY UPSET]

 

[COUNSEL TO HIS HONOUR AND HIS HONOUR

TO COUNSEL]

 

HIS HONOUR (TO THE ASSESSORS): Gentlemen, I don't know whether you were listening to this dialogue in English, but I have just been talking to the lawyers about aspects of the conducting of this trial, and matters of language and pronunciation. And, before I direct my attention to the next witness, I have noted that, in the meantime, Mr Epati, your client appears to have fully recovered his composure.

MR EPATI: Thank you, sir.

HIS HONOUR: Yes, come forward, madam.

 

<PAULINE CAIN, sworn [11.20am]

 

<EXAMINATION-IN-CHIEF BY MR EPATI

 

MR EPATI: Could you state your full name for the record, please?

THE INTERPRETER: My name is Pauline Cain.

MR EPATI: Are you the wife of accused Toi Cain?

THE INTERPRETER: Yes.

MR EPATI: There is evidence that you were present at the HRPP Party on the evening of 16 July when the late Luagalau was shot; is that correct?

THE INTERPRETER: True.

MR EPATI: Was Toi there with you?

THE INTERPRETER: No.

MR EPATI: Why not?

THE INTERPRETER: He was critically ill, sir.

MR EPATI: What was his illness?

THE INTERPRETER: Sir, we were told by the doctor, on the day that we went to see the doctor, that the flu has deteriorated, sir.

MR EPATI: Which doctor is this?

THE INTERPRETER: Dr Leao Tuitama.

MR EPATI: For your information, your Honour, that is the other witness we will be calling.

How long had Toi been sick before the 16th, the Friday of the HRPP Party?

THE INTERPRETER: Sir, Toi had been sick, sir, well before that. The week before the week that we are discussing, Toi was sick; and I am definite he had been sick well before that week, sir. But, because he was sick with the flu, the symptoms were coughing, cold, and he does not sit still, sir, and the reason why I knew that he was sick was because he called in with medicine tablets. He, himself, went and saw doctors.

MR EPATI: Before we continue, could you - - - 

THE INTERPRETER: I would like to correct that, it was not the doctor. He went to the pharmacy.

MR EPATI: Before we proceed, long answers - could you pause while the translation is done, in deference to the Registrar, please. Did you take him to see a doctor about this?

THE INTERPRETER: I did not, because, when I told him at that time, he did not agree at that time.

MR EPATI: So when did he agree, if he did?

THE INTERPRETER: When Toi really felt that he was critically ill, sir, when he felt the aching in the whole body, he felt cold, and felt that he was really sick, that was when he came to my desk up at the store. He cried, and - well, he came, put his arms on my desk. He cried there, and he told me that he knew he was going to die, sir - he was very sick; that his body was weak.

MR EPATI: What did you do then?

THE INTERPRETER: Well, I told him that that was why I asked him before to - that we should go and see a doctor, but he refused.

MR EPATI: Well, did you take him to the doctor or not?

THE INTERPRETER: And we went on that day to see the doctor.

MR EPATI: What date was this?

THE INTERPRETER: Thursday, 15 July.

MR EPATI: Which doctor did you visit?

THE INTERPRETER: Dr Leao Tuitama.

MR EPATI: About what time of the day was this, or night?

THE INTERPRETER: It was during daytime, sir - midday.

MR EPATI: And what happened after the doctor had seen him?

THE INTERPRETER: Well, when the doctor said that was the case, that the flu had worsened, and that he was - pneumonia, and more than pneumonia, sir.

MR EPATI: Was anything prescribed for treatment?

THE INTERPRETER: A prescription was given, sir, for tablets.

MR EPATI: Anything else the doctor advised?

THE INTERPRETER: And a cough medicine, sir.

MR EPATI: You were going to say something?

THE INTERPRETER: And he was ordered to stay in bed for at least five days.

MR EPATI: And was that done?

THE INTERPRETER: Yes.

MR EPATI: When you brought him home, how was he looked after?

THE INTERPRETER: He was taken home, put in bed, and the tablets that were given were taken, and he was told to remain in bed.

MR EPATI: And did he stay in bed?

THE INTERPRETER: Yes.

MR EPATI: Who looked after him?

THE INTERPRETER: Me, sir.

MR EPATI: Anybody else?

THE INTERPRETER: If there's a need for me to leave, stand up, go out, Caroline, my daughter, would come in and look after him.

MR EPATI: Was there ever any time, during the course of his sickness, or illness, that he was left unattended?

THE INTERPRETER: No.

MR EPATI: Was there ever any - after that visit to the doctor, did you visit any other doctors?

THE INTERPRETER: Yes.

MR EPATI: When did this happen?

THE INTERPRETER: On Thursday, we saw Leao - Thursday, Friday, Saturday, Sunday, Monday, next Monday.

MR EPATI: And which doctor did you visit?

THE INTERPRETER: Doctor Titi Lamese.

MR EPATI: Where did you visit him?

THE INTERPRETER: At the Motootua Hospital.

MR EPATI: And did he diagnose, or examine, Toi?

THE INTERPRETER: Yes.

MR EPATI: And what was his diagnosis?

THE INTERPRETER: The same sickness, sir, the flu that has - excessive flu, sir.

MR EPATI: Was there any other doctor you visited with Toi?

THE INTERPRETER: We went back to Leao on the same day.

MR EPATI: Was this before or after your visit to Titi Lamese?

THE INTERPRETER: After we had been to Titi.

MR EPATI: What time did you visit Dr Leao?

THE INTERPRETER: We got to Leao somewhere around seven.

MR EPATI: Is that 7am, or 7pm?

THE INTERPRETER: Seven in the evening.

MR EPATI: Why did you feel the need to visit another doctor, a second doctor, on that day?

THE INTERPRETER: When returning from Titi, on the road we were talking about the tablets that were prescribed by Titi, and the tablets were Amoxil. And Toi heard the Amoxil being mentioned, and he said, "No", that that tablet is weak.

MR EPATI: And, when you visited Dr Leao the second time, what happened then?

THE INTERPRETER: When we saw Dr Leao at his home, we advised him that we had come back to him because there was no improvement.

MR EPATI: What happened then?

THE INTERPRETER: And I told Leao that we had just returned from Titi.

MR EPATI: Was there ever any change in medication or advice as to how to treat him?

THE INTERPRETER: A prescription for a new tablet was given to us to be taken to the pharmacy. The tablet Ceclor was prescribed.

MR EPATI: After that, was there any improvement in Toi's condition?

THE INTERPRETER: A slight improvement was observed on that night and the next morning, sir, after the said tablets were taken, sir.

MR EPATI: After that day, did you have any cause to visit any other doctors?

THE INTERPRETER: The tablets that were prescribed were taken, because I think they were required to be taken for some days, so that continued.

MR EPATI: When did Toi recover from this illness?

THE INTERPRETER: A very gradual improvement was observed up until the end of that week, and he was able to stand up and move around inside the house.

MR EPATI: So when did he recover?

THE INTERPRETER: I do not really understand what you mean by "recover", but that was what I observed, that he was able to stand up and move around. Except that on Sunday he was able to come forward to the store.

MR EPATI: When you talk about "the store", is your store next to your house?

THE INTERPRETER: Yes.

MR EPATI: Within the same property?

THE INTERPRETER: Yes.

MR EPATI: Is this at Vaimoso?

THE INTERPRETER: Yes.

MR EPATI: Can you recall the day when Toi was able to stand up and walk around the house?

THE INTERPRETER: Friday or Saturday, sir. I can't recall the exact date, but it was either Friday or Saturday.

MR EPATI: Friday or Saturday of what week?

THE INTERPRETER: The week that we saw Dr Lamese and paid a second visit to Dr Leao.

MR EPATI: Do you recall when was the first time Toi left the house, the property - your property?

THE INTERPRETER: On that same Sunday.

MR EPATI: Do you know where he went?

THE INTERPRETER: That same Sunday when he came up to the store, and he was angry with Carol and myself, because there were no cabbages in the store.

MR EPATI: What happened then?

THE INTERPRETER: And he asked us as to why no-one had gone to collect the cabbages, and he said that he himself was going to get the cabbages.

MR EPATI: And did he do that? Did he go to get the cabbages?

THE INTERPRETER: Yes, he went to collect the cabbages.

MR EPATI: But, from 15 July, the Thursday, to that Sunday of the week after that he left to get the cabbages, did you know whether he went anywhere at all away from the premises?

THE INTERPRETER: No.

MR EPATI: And, during that time, was there only just you and Carol looking after him?

THE INTERPRETER: Yes.

MR EPATI: The day is 24 hours. How would you arrange with Carol to look after him?

THE INTERPRETER: Most of the supervision was on me, sir, unless there was something that I need to leave or to stand up for, to go out for, and then I would ask Carol to just relieve me.

MR EPATI: Have you finished that answer?

THE INTERPRETER: And those occasions are not off the premises - if I was required to go to the store to give instructions, or to the back - within the same premises.

MR EPATI: Why was it that you did not leave him unattended at all?

THE INTERPRETER: Because that was when Toi knew that he was very ill, and I was the only person that he would listen to, and that was why I was there, so that he remained in bed.

MR EPATI: When you say "when he was very ill", can you describe the condition - the symptoms that Toi has when he is very ill?

THE INTERPRETER: When he coughed, he can hardly breathe, and he is always feeling cold, sir, so we give him things to ensure that he is warm, and he complains of bone aches, sir.

MR EPATI: Yes. Well, during the time when he was sick, specifically on the Saturday following the Thursday that he was confined to bed, was there a visit from Leafa - accused Leafa - to Toi on that day?

THE INTERPRETER (SPEAKING FOR HIMSELF): Sorry, on the - - - 

MR EPATI: On the Saturday, 17 July.

THE INTERPRETER: No.

MR EPATI: Who was looking after Toi through the Saturday, 17 July?

THE INTERPRETER: I was there.

MR EPATI: What time did you start looking after him, until what time, on that Saturday, the 17th?

THE INTERPRETER: That Saturday, the early morning, before 6, I went to the front to the store, to open the store. Toi was asleep at that time, and Carol was also there, at the back.

MR EPATI: What time did you return from opening the store?

THE INTERPRETER: At close to 7 that morning, while I was up at the front at the store, Carol came running to me, and she told me to hurry back to Toi, that Toi was crying, that he was very sick, that he was having a cold sweat, sir.

MR EPATI: And what did you do?

THE INTERPRETER: Well, I hurried back, sir.

MR EPATI: And what happened?

THE INTERPRETER: And I went and it was true, that he was sweating, sir. And, in fact, he was crying.

MR EPATI: Did you leave him again at all?

THE INTERPRETER: No.

MR EPATI: Around about 2 pm that afternoon, did Leafa visit at all to Toi?

THE INTERPRETER: No.

MR EPATI: Did Toi have any visitors during that Saturday, 17 July?

THE INTERPRETER: No, sir.

MR EPATI: At about 5, or 5.30 late that afternoon, were you still looking after Toi?

THE INTERPRETER: Yes.

MR EPATI: Did Toi leave home, or your premises, at all at around about that time?

THE INTERPRETER: No.

MR EPATI: I will come now to the Monday following, which is 19 July. Who was looking after Toi on that day?

THE INTERPRETER: Carol was there on that day.

MR EPATI: To your own knowledge, did Toi leave your home and go away somewhere on that day, the 19th, the Monday?

THE INTERPRETER: Yes.

MR EPATI: Where did he go?

THE INTERPRETER: We went to the hospital.

MR EPATI: Other than your visits to the hospital, did he go by himself anywhere?

THE INTERPRETER: No, sir.

MR EPATI: Do you know a person by the name of Eneliko?

THE INTERPRETER: Yes.

MR EPATI: He said he has been doing some odd jobs for Toi throughout the years. Is that correct?

THE INTERPRETER: Yes.

MR EPATI: He has given evidence that he visited Toi on the Tuesday, 20 July. Did you see him at your home?

THE INTERPRETER: I did not see him at our home, sir, but I saw him up at the front. I saw him in the store, and he said that he had been at the back, at the home.

MR EPATI: Around about what time of the day was this?

THE INTERPRETER: Midday, sir - about lunch-time.

MR EPATI: And who was looking after Toi at that time?

THE INTERPRETER: Caroline, sir.

MR EPATI: I'd like now to talk to you about visits for treatment for Toi overseas, which have become evidence in this Court. Just briefly, do you confirm that Toi went overseas for medical treatment?

THE INTERPRETER: True.

MR EPATI: On those visits, do you accompany him?

THE INTERPRETER: Yes.

MR EPATI: Where did you go?

THE INTERPRETER: The first one, to Brisbane.

MR EPATI: How long was that visit?

THE INTERPRETER: For about three weeks.

MR EPATI: What was the matter with Toi?

THE INTERPRETER: We were referred to a psychiatrist.

MR EPATI: Which psychiatrist was this?

THE INTERPRETER: Eileen Burkett.

MR EPATI: Where does she practise?

THE INTERPRETER: The Mercy Hospital Centre at Brisbane.

MR EPATI: How did you come to see Dr Eileen Burkett?

THE INTERPRETER: Dr Tafunai referred us to that doctor.

MR EPATI: For the record, where did Dr Tafunai practise at that time?

THE INTERPRETER: He was working as a medical practitioner at Fesili Complex.

MR EPATI: Would you confirm that Dr Tafunai has passed away since?

THE INTERPRETER: Yes.

 

[COUNSEL TO HIS HONOUR]

 

HIS HONOUR: We are going to break off for lunch now. I take it there is no objection to this witness leaving the premises?

MR RAFTERY: No, your Honour.

HIS HONOUR: You will be free to leave the courtroom and these premises for the luncheon adjournment. I advise you and direct you not to speak to anyone about your evidence whilst you remain a witness in this trial. I am speaking about during this adjournment, or any other adjournment of the trial, whilst you remain a witness. Do you understand that?

THE INTERPRETER: Thank you, sir.

HIS HONOUR: You may step out of the witness-box and go with the police officer.

THE WITNESS: Thank you, your Honour.

THE WITNESS WITHDREW [12.00noon]

 

[HIS HONOUR TO COUNSEL]

 

HIS HONOUR: Gentlemen assessors, we will have the lunch break now, but it will be shorter than usual. I want to resume this trial at 1.30 this afternoon. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [12.01pm]

 

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

 

LUNCHEON ADJOURNMENT [12.02pm]

 

RESUMED [1.37pm]

 

HIS HONOUR: Would the witness return to the witness-box, please. Mr Courts Officer, would you bring in the assessors, please.

 

ASSESSORS RETURNED [1.38pm]

 

PAULINE CAIN

 

<EXAMINATION-IN-CHIEF BY MR EPATI CONTINUING [1.39pm]

 

HIS HONOUR: Yes, Mr Epati.

MR EPATI: Thank you. Before commencing, your Honour, I wish to state that, after further constructive dialogue with prosecution counsel, I will not be as long as I indicated - 10, 15 minutes - considerably shorter.

HIS HONOUR: Thank you.

MR EPATI: Mrs Cain, when we broke for lunch, we were talking about the trips overseas with Toi for medical treatment. You've indicated you visited Brisbane. Am I correct you also visited Auckland, New Zealand?

THE INTERPRETER: Yes.

MR EPATI: When did you visit Brisbane?

THE INTERPRETER: End of '96.

MR EPATI: And when did you visit New Zealand?

THE INTERPRETER: We came back in '96, and went back in '97.

MR EPATI: How long was that visit?

THE INTERPRETER: Left in October '97, returned during Christmas time.

MR EPATI: And did you visit overseas any other time?

THE INTERPRETER: Only the time we went in '98 to Hawaii.

MR EPATI: Was it for same medical condition?

THE INTERPRETER: Yes, weakness of body, sir.

MR EPATI: Thank you. I have no further questions.

HIS HONOUR: Mr Toailoa, do you have any cross-examination?

MR TOAILOA: Just one question, your Honour.

 

<CROSS-EXAMINATION BY MR TOAILOA [1.41pm]

 

MR TOAILOA: Mrs Cain, Mr Epati has asked you concerning your movements and that of Toi on Saturday, 17 July, and he had asked you whether, at around 2 pm on that day, whether Leafa came, and your reply was, "No". Now, do you recall saying that?

THE INTERPRETER: Yes.

MR TOAILOA: Now, he then asked you again concerning the movements of Toi from 5 pm or 5.30 in the evening, on that same day. Do you recall being asked that?

THE INTERPRETER: Yes.

MR TOAILOA: Now, you realise that there is then a space from 2 pm to 5 or 5.30 pm, and that is the time that I want to ask you about. Now, between that time, after 2 pm, say, to 5 o'clock in the evening, did Leafa come around to see Toi at all on that day, Saturday, 17 July?

THE INTERPRETER: No.

MR TOAILOA: Did Toi ever go outside the house during those hours, from 2 pm, or after 2, until about 5 or 5.30 in the evening on that day?

THE INTERPRETER: No.

MR TOAILOA: Now, were you yourself at home during those hours, from 2 pm to 5 or 5.30 in the evening?

THE INTERPRETER: Yes, I was there, inside the house.

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

HIS HONOUR: Mr Raftery?

 

<CROSS-EXAMINATION BY MR RAFTERY [1.44pm]

 

MR RAFTERY: From what you tell us, Mrs Cain, it doesn't sound like your husband is a very good patient; would you agree?

THE INTERPRETER: No.

MR RAFTERY: Well, you see, as I understood what you were telling us - - - 

HIS HONOUR: Just a moment. "No, I don't agree", or, "No, he is not a good patient"?

MR RAFTERY: Sorry, your Honour.

THE INTERPRETER: No, not a patient that you can leave alone.

MR RAFTERY: I am grateful, your Honour.

As I understand it, you were worried about him in the week before the week in which Luagalau died, weren't you?

THE INTERPRETER: I was concerned, not worried, sir. Not like the time that he became critically ill, sir.

MR RAFTERY: I appreciate that, but, in that week that you were telling us about, you were worried about his health, weren't you?

THE INTERPRETER: I was a bit concerned, sir, when he took tablets and was not feeling well, sir.

MR RAFTERY: And you told us you wanted him to go and see a doctor and he wouldn't, at that stage.

THE INTERPRETER: Yes. I personally asked him, like the usual things that mothers would do, give advice.

MR RAFTERY: And another comment you made about him was that he wouldn't stay still, as you thought, obviously, he ought to.

THE INTERPRETER: Yes. There were reasons.

MR RAFTERY: And you tell us that, as I understand it, he came to you and said that he felt like he was going to die at one stage; that's right?

THE INTERPRETER: Yes.

MR RAFTERY: Now, was that the day that you took him to see Dr Leao?

THE INTERPRETER: Yes.

MR RAFTERY: I say you took him; I presume that is what you meant, when you gave your evidence - you took him, or did he go there himself?

THE INTERPRETER: I drove the vehicle, sir.

 

[COUNSEL TO HIS HONOUR]

 

MR RAFTERY: Now, he has told us this morning, when he was giving evidence, that, before that day, he had already been in bed a few days. Would that be right?

MR EPATI: I wish to object to the question. I can only recall that he had said he was sick a few days, but not necessarily in bed. Could it perhaps be clarified? My recollection of the evidence was that he was sick some days before, but not necessarily confined to bed.

HIS HONOUR: Can you assist, Mr Raftery?

MR RAFTERY: Yes. Your Honour, this morning, in cross-examination by me about what he had been telling the police at the beginning of August of last year, recounting the events of the weeks before, he indicated that he had told the police - and he agreed he had told the police - that he had been in bed; his estimate, and I accept it is only an estimate, was for some five or six days, when the party was held. And he agreed - not only did he say that, but that was correct: that he had been in bed, he estimated - and I am not holding him to that figure - but some days, and that is why I put it like that, rather than the five or six he mentioned - some days before the party was held.

MR EPATI: Yes, I agree with what you said, except that he did not say he was in bed. He said he was sick. The question is being put that he was in bed five or six days prior to that.

HIS HONOUR: Yes, but I think what Mr Raftery is doing - and it is now coming back to my memory - he did put to the accused Toi this morning, Mr Epati, that that is what he had said to the police, and did he agree with that.

MR EPATI: That is where - my memory is that he did not put that he said to the police he was "in bed", five or six days prior; that he put to the police he "was sick", five or six days prior. My objection is the differentiation between being "sick" and being "in bed".

HIS HONOUR: Oh, yes, there is an important distinction. But we can easily check this with the transcript.

MR RAFTERY: Your Honour, that is what we will have to do. My recollection was that he had agreed with me that he had been "in bed" for those five or six days, and so, if the transcript of this morning's evidence is available, we can do it by quick reference to that, rather than - I was not making notes; I was on my feet, and I thought that is what he had said.

 

[COUNSEL TO HIS HONOUR]

 

MR RAFTERY: I do not know whether it still will be, at the end of the day, page 2425, but that is the draft page at the moment. I was talking to your husband about what he'd said to Superintendent Salapo on 3 August last year:

When the party was held, I was at home in bed. I was ill, and my wife, Pauline, was sent to explain or excuse us from the party.

And he agreed that he'd told that to Superintendent Salapo, that he was critically sick that night. And he agreed that what he'd told Superintendent Salapo was true. And then I asked him about this:

You went on to explain to Superintendent Salapo that you had been in bed for five to six days when the party was held.

And he agreed he had. I asked him this:

When you were telling that to the Superintendent, was that true as well?

And he agreed, by saying "exactly".

THE INTERPRETER: Did you mean, when you asked, in bed? Actually lying in bed?

MR RAFTERY: Well, the words "in bed", those words came from your husband, you see. So that, what I was putting to you, just in a general way, to summarise that evidence, was that, according to what your husband told us this morning in Court, he had been in bed for some days before the day of the party, 16 July, all right? Don't answer any questions, but do you understand what I am putting to you now and why I am putting it to you?

THE WITNESS: I'll have to get it off him.

MR RAFTERY: Certainly; of course. And can I also explain, I would accept that five to six days was an estimate by him, some three weeks later, and that might not be the exact number of days. And it's for that reason that I just put to you, in a general way, "a number of days before the party". Do you understand why I've used that phrase, rather than "five to six"? Now, do you agree with your husband, that he had been in bed for some days prior to the party?

THE INTERPRETER: I concede that he was sick, he was in bed, but there were times that he stood up and walked around.

MR RAFTERY: Yes, all right. Well, "in bed" can often - I mean, even a simple thing like going to the toilet will need one to get out of bed, won't it?

THE INTERPRETER: Yes.

MR RAFTERY: But his estimate was - leaving that as the definition of "in bed" - his estimate was about five to six days, in other words, from about the weekend before. Would you think that would be about right?

THE INTERPRETER: That was the case, that he was becoming ill, and I was noticing the symptoms.

MR RAFTERY: And I think, as you've told us, you were even noticing the symptoms before that weekend, in the week before, weren't you?

THE INTERPRETER: My testimony was that, even before that.

MR RAFTERY: And, as I understand it, for example, on the Thursday that you took him to see Dr Leao, he'd got up from his bed and came in to see you in the shop, saying, "Look, I'm really ill." Is that right?

THE INTERPRETER: Yes.

MR RAFTERY: Now, did you take him straight away then to the doctor, or did he go back to bed for a while before you were ready to take him to the doctor?

THE INTERPRETER: We went together to the home, because we were at the store at that time, and we went together, put on my clothes, and then we went to the doctor.

MR RAFTERY: And, as I understand it, from what you were saying this morning to Mr Epati, when you went from the shop to home, you mean you're going from one part of the complex to another, is that right, rather than driving to a separate building?

THE INTERPRETER: Three to four steps, sir, to the house, depending on the legs.

MR RAFTERY: And, so that, as I understand your evidence, that, since about that weekend, while he might not have been a good patient and stayed in bed the whole time, he was at home, even though sometimes he'd get up out of bed when you thought he ought to stay in bed. Would that be a fair way of putting it?

THE INTERPRETER: He was in there, sir.

MR RAFTERY: You see, on the Saturday lunch time, after the shooting of Luagalau, in other words the Saturday, 17 July, a witness has told us that he saw your husband waving to someone from the doorway of your house. Now, first of all, is there anyone else living at your home that looks like your husband?

THE INTERPRETER: My son-in-law, sir, but he is fatter, sir.

MR RAFTERY: Is fatter, yes. What age is your son-in-law?

THE INTERPRETER: Over 30.

MR RAFTERY: Is he the same height as your husband?

THE INTERPRETER: Yes.

MR RAFTERY: And how much fatter than your husband is he?

THE INTERPRETER: A bit fatter, sir, than my husband.

MR RAFTERY: Do you think he could easily be mistaken for your husband, this over 30 year old, slightly fatter man?

THE INTERPRETER: No. The difference would be very obvious. He's much fatter, sir.

MR RAFTERY: But, if your husband did something like that on that Saturday lunch time, it would certainly be consistent with the sort of way he'd been behaving the previous week, wouldn't it?

THE INTERPRETER: Nothing could be done on that Saturday, because I was there, and he was in bed and remained in bed, sir - did not leave the bed.

MR RAFTERY: I appreciate that is your evidence, but, judging by just the behaviour of the man that you've described as not being a perfect patient, he's the sort of person who could, if he wanted to, get up and walk about the house, and, if he wanted to, wave someone goodbye from the door, even if you thought he oughtn't to. He would have been capable of doing that, wouldn't he?

THE INTERPRETER: No, I do not confirm that.

MR RAFTERY: He had been on the first lot of medication that he purchased himself from the pharmacy, hadn't he?

THE INTERPRETER: Yes. That was before he was seriously ill.

MR RAFTERY: And then he got different medicine from Dr Leao on the Thursday; that's right?

THE INTERPRETER: Yes, different.

MR RAFTERY: And had you been ensuring that he took that, from that Thursday lunch-time onwards?

THE INTERPRETER: Yes.

MR RAFTERY: When was the first time you knew that your husband had plotted with Leafa to kill Luagalau?

THE INTERPRETER: I did not know a thing like that.

MR RAFTERY: No. I was wondering when was the first time that you learnt that that is what he had been doing.

THE INTERPRETER: When my husband was taken, and I was informed by the police.

MR RAFTERY: So I take it that you had never seen, at your home, the gun that he had there for a period of time, that was actually the gun that was used to kill Luagalau.

THE INTERPRETER: No.

MR RAFTERY: But, knowing what you do now, you know that your husband had been - well, at the time after Luagalau's murder, was in a very serious predicament, as far as he was concerned; and, if you need that explained, I will. Do you want me to explain a bit further?

THE INTERPRETER: Yes, please.

MR RAFTERY: Certainly. He had been plotting with Leafa to kill Luagalau.

MR EPATI: Could that be changed to "have Luagalau killed"?

MR RAFTERY: To have Luagalau killed, sorry, yes - not to physically do it himself, but to have Luagalau killed by someone else. He had - this is your husband - had given a gun to Eneliko, in connection with those discussions he had with Leafa. He had been with Eneliko up to look at the Prime Minister's house, and then at Luagalau's house, on more than one occasion. Now, just without going into any more detail, you're aware of those general details now, aren't you, even if you didn't know them at the time?

THE INTERPRETER: True.

MR RAFTERY: And so that's why I suggest to you that your husband must have been, in the immediate aftermath of the death of Luagalau, in a very difficult situation, because of his involvement or connection with it?

THE INTERPRETER: And what exactly is the question?

MR RAFTERY: Well, with that particular problem that he was facing - you didn't know about, did you, but you accept he must have been in a very difficult situation, that's all I'm putting to you at this stage. And if you agree, then I'll go on to ask you the next question?

THE INTERPRETER: Can we have the last - - - 

MR RAFTERY: Certainly. I'll put it again, so you can hear it again in English, and get it again in Samoan. The point I'm putting to you is, would you accept that although you didn't know it, or appreciate it at that time, your husband was in a very difficult situation because of his involvement with Leafa in the plot to kill Luagalau?

THE INTERPRETER: No.

MR RAFTERY: And because of what I'm suggesting to you, I'm suggesting that he had a very strong motive to see Eneliko, to make sure Eneliko didn't tell the police what he knew about your husband's involvement. So, do you accept that your husband would have that strong motive to try and make sure Eneliko didn't tell the police about his involvement?

THE INTERPRETER: No.

MR RAFTERY: And so, however sick or otherwise he was, he was physically capable, I suggest, of going to see Eneliko, and he in fact did, on that Saturday?

THE INTERPRETER: No.

MR RAFTERY: And we've heard from three members of a church committee in that village, who saw your husband in that village on that Saturday afternoon or early evening.

THE INTERPRETER: And what is the question?

MR RAFTERY: And the question is this: do you know of anyone who would look like your husband, drive a vehicle like your husband's, who might have been seen there that night, rather than your husband?

THE INTERPRETER: I have already answered that question when I was asked if there was any other person like my husband, sir.

MR RAFTERY: And these three people have said that they know what your husband looks like, they know him as their MP, and so there is no room for mistake on their part. Now, would you agree that your husband was, at that time last year, before his arrest, well known, both generally in Samoa, and well known in his constituency?

THE INTERPRETER: True.

MR RAFTERY: So, there isn't any room, really, for mistaking him for someone else - or mistaking someone else for him, I should say?

THE INTERPRETER: Well, there would be no room for any mistake, because everybody knew Toi.

MR RAFTERY: And on that afternoon, Leafa, who had plotted with your husband, on the evidence we've heard from your husband, to kill Luagalau - - - 

MR EPATI: To have Luagalau killed.

MR RAFTERY: To have Luagalau killed.

MR EPATI: Thank you.

MR RAFTERY: Who had plotted with your husband to have Luagalau killed, do you accept that he would have a good motive to try and see your husband, as soon after Luagalau's murder as he could?

THE INTERPRETER: No, I do not answer that, that is not true.

MR RAFTERY: Thank you.

HIS HONOUR: Any re-examination?

MR EPATI: Just one point.

 

<RE-EXAMINATION BY MR EPATI [2.22pm]

 

MR EPATI: You've been asked by the prosecution, or put to you, that Toi might be in bed, but may be able to get up to visit the toilet, for example. Do you recall that?

THE INTERPRETER: Yes, true.

MR EPATI: Could you tell us whereabouts in the house is the toilet?

THE INTERPRETER: We have a toilet in our own bedroom, next to Toi's bed.

MR EPATI: Is there a toilet around about the front door?

THE INTERPRETER: Sir, all toilets in the home, sir, are at the back. There is another toilet, but it's also at the rear of the house.

MR EPATI: You mentioned your son-in-law. What's his name?

THE INTERPRETER: Livi.

MR EPATI: What's his last name?

THE INTERPRETER: Lafi.

MR EPATI: Is this the husband of Caroline?

THE INTERPRETER: Yes.

MR EPATI: How old is he?

THE INTERPRETER: Over 30.

MR EPATI: "Over 30" means 40; 50; 60. Can you be more specific?

THE INTERPRETER: About 31 and some months.

MR EPATI: What colour is his hair?

THE INTERPRETER: Black, sir.

MR EPATI: Does it look anything like your husband's hair?

THE INTERPRETER: No.

MR EPATI: Thank you. I have no further questions.

HIS HONOUR: And how would you describe your husband's hair in colour?

THE INTERPRETER: Either grey or white, sir.

HIS HONOUR: Thank you.

MR EPATI: Thank you, sir.

HIS HONOUR: Do you ask that the witness be released?

MR EPATI: Yes, I do, sir.

HIS HONOUR: Any objection, Mr Toailoa?

MR TOAILOA: No, your Honour.

HIS HONOUR: Mr Raftery?

MR RAFTERY: No, your Honour.

HIS HONOUR: Mrs Cain, you have finished your task as a witness in this trial. You, in a moment, may step out of the witness-box. You may leave the courtroom, if you wish, or you may stay, if you wish. You are released as a witness.

 

<THE WITNESS WITHDREW [2.25pm]

 

[COUNSEL TO HIS HONOUR]

 

<CAROLINE CAIN LAFI, sworn [2.28pm]

 

<EXAMINATION-IN-CHIEF BY MR EPATI

 

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

THE INTERPRETER: Caroline Cain Lafi is the full name.

MR EPATI: Do you assist in managing and running the general store that you and your mother have at Vaimoso?

THE INTERPRETER: Yes.

MR EPATI: I'd like to talk to you about July of last year. Were you aware whether your father, Mr Toi Cain, was sick at all in the month of July last year?

THE INTERPRETER: Yes.

MR EPATI: What was the matter with him?

THE INTERPRETER: It started off with the flu, but the flu got worse, sir, and he was critically ill.

MR EPATI: And what happened to him, when he was critically ill?

THE INTERPRETER: He came up to the front and cried to my mother that he was very ill and that he was "nearly dead", and that his "whole body was aching".

MR EPATI: Were you present at the shop when your father did that?

THE INTERPRETER: Yes.

MR EPATI: What happened then?

THE INTERPRETER: So the two of them went to see the doctor.

MR EPATI: And, when they returned, what happened?

THE INTERPRETER: I did not know what happened, because they went straight to the back, to the house, and he lay in bed.

MR EPATI: Who looked after your father when he was in bed?

THE INTERPRETER: For that time, my mother was there.

MR EPATI: Can you recall what day this was?

THE INTERPRETER: Wednesday, Thursday.

MR EPATI: When was it? I'm talking about the day he came to the shop and cried and said he was critically ill. When was that?

THE INTERPRETER: The 15th.

MR EPATI: And, when they came back from the hospital and he was confined in bed, who looked after him?

THE INTERPRETER: Pauline dealt with him on that very day, the day that he was seriously ill. On the next day, it was me.

MR EPATI: Other than the two of you, did anybody else, as you put it, "deal with him"?

THE INTERPRETER: No.

MR EPATI: How long was he in bed for?

THE INTERPRETER: From the day that he was taken to the hospital, to Sunday, 25 July.

MR EPATI: And throughout that time, did you or Pauline leave Toi by himself unattended?

THE INTERPRETER: No.

MR EPATI: I'd like now to talk to you about the Saturday, 17 July.

THE INTERPRETER: Yes.

MR EPATI: Who looked after Toi on that day?

THE INTERPRETER: Sir, I was at the back in the morning, but he asked me that he wanted Pauline. He was not comfortable with me. That was when he was very ill, and Pauline came that day.

MR EPATI: Did you look after him at all any time that Saturday?

THE INTERPRETER: It's only when the busy time at the store is finished, say in the evening, then I would call in at the back to check on them.

MR EPATI: And did you check Pauline and Toi that evening, or not?

THE INTERPRETER: Yes.

MR EPATI: Can you recall, around about what time did you check?

THE INTERPRETER: Close to 5, sir, when the store was not busy.

MR EPATI: So, from 5 o'clock, how long were you there with Pauline and Toi?

THE INTERPRETER: I was there for a while, because when I called in, food was being prepared, and I was sent around, sir, to do some errands, sir. I was told to go and check on Toi's towels, he was being wrapped with towels, and also to wipe the sweat, and was then sent to get bread. So I was there for a while.

MR EPATI: Can you estimate what time in the evening did you leave Toi and Pauline on that evening?

THE INTERPRETER: Say, about quarter to 6, when he was about to take his pills, sir.

MR EPATI: Have you seen this man here, accused Leafa, before?

THE INTERPRETER: Yes, Leafa.

MR EPATI: Did this man, Leafa, visit your father during any time of Saturday, 17 July?

THE INTERPRETER: No, I did not see him come in, sir.

MR EPATI: Sorry - when you say you did not see him come in, do you mean he came, or do you mean he did not come?

THE INTERPRETER: No, he did not come.

MR EPATI: Thank you. And, at about 5 o'clock, when you got to the house where Pauline and Toi were, during that time you were there, did Toi leave the house and the premises at all?

THE INTERPRETER: No.

MR EPATI: Now, we have evidence from a man by the name of Eneliko. Do you know who that person is, Eneliko?

THE INTERPRETER: Yes.

MR EPATI: And he said that he visited your father on the Tuesday, 20 July. Were you there when he visited?

THE INTERPRETER: Yes.

MR EPATI: Can you tell us what happened when Eneliko arrived?

THE INTERPRETER: When Eneliko arrived on that day, I was washing the dishes, and I was right opposite - I was facing the door that he came through, and I went over and opened the door, and he asked me as to where Toi was.

MR EPATI: At around about what time was this?

THE INTERPRETER: About 11 in the morning.

MR EPATI: And what happened then?

THE INTERPRETER: He asked me about Toi - where was Toi - and I said that Toi was sick, that he was asleep.

MR EPATI: And what happened then?

THE INTERPRETER: He said he wanted to see Toi, so we went, and I went first, tried to wake up Toi, and told him that Eneliko was outside. At that time, Eneliko had continued into the room and was beside me. Toi was also turning at that time.

MR EPATI: And what did you do?

THE INTERPRETER: I brought a chair, placed it beside the bed, he sat there and talked to Toi. At that time Toi was turning towards me.

MR EPATI: And what did you do?

THE INTERPRETER: I walked out.

MR EPATI: How long did Eneliko talk to Toi?

THE INTERPRETER: It was exactly 12 when he came out.

MR EPATI: Thank you. I have no further questions.

HIS HONOUR: Mr Toailoa?

MR TOAILOA: I have no questions, your Honour, thank you.

HIS HONOUR: Mr Raftery?

 

<CROSS-EXAMINATION BY MR RAFTERY [2.43pm]

 

MR RAFTERY: We heard, just before you gave evidence, from Pauline Cain. I take it she is your mother, is that right?

THE INTERPRETER: Yes.

MR RAFTERY: And, obviously, Toi is your father?

THE INTERPRETER: Yes.

MR RAFTERY: And we've heard from your mother that, in the week before he went to the doctor, the week before Luagalau was killed, she had noticed that your father was already ill. Did you notice it as well?

THE INTERPRETER: Yes.

MR RAFTERY: And we've heard, both from your father and your mother, that, from approximately the weekend before he went to the doctor and before Luagalau was killed, that your father was in bed, although for the first part of the week, your mother told us, he didn't always stay in bed, he'd sometimes get up and not stick to his bed. Now, do you remember that? Were you there at that time as well or not?

THE INTERPRETER: Can you re-ask the question?

MR RAFTERY: Certainly. I'm talking about the period from the weekend up until the day your father went to the doctor, all right, which you've told us was 15 July. Just before I go on, if I just ask about that - is there any reason why you can remember it's 15 July but can't remember whether it was the Wednesday or the Thursday? What helps fix the date rather than the day for you?

THE INTERPRETER: For that whole week, Toi was ill. He had been working, doing a lot of work in wet conditions, and he had the flu. And, as I had stated, the flu got worse, and I know that because he came up to the store and he cried to Pauline.

MR RAFTERY: But what I was just wondering was why are you able to say, "I know that was 15 July", but you aren't able to say what day of the week it was?

THE INTERPRETER: Well, I was just considering it, but I am definite that was the date that he became ill.

MR RAFTERY: But I'm wondering what is it that helps you to say "that was the date"? I mean, do you know that from your own memory, or is that a date that someone has supplied to you?

THE INTERPRETER: Yes. Because, when Pauline checked with the doctor's records, that was the date that they went to see the doctor.

MR RAFTERY: I see. So without the aid of that, you wouldn't have been able to help us, from your own memory, of the exact date?

THE INTERPRETER: Well, the record helped me, but I was sure that was the date they went to see the doctor.

MR RAFTERY: Now, that was actually a Thursday, all right? You're happy to accept that from me?

THE INTERPRETER: Yes.

MR RAFTERY: Now, what I'm asking about is the time before that Thursday. But if I can deal with the Thursday first, it might make it easier. As I understand it, from both really what you're saying and what your mother's saying, was that, sometime on that morning, your father got out of bed and came from the house at the back into the shop to say, "I'm really ill", and your mother then took him to see the doctor; is that right?

THE INTERPRETER: Yes.

MR RAFTERY: And, after your mother and father came back from the doctor, they went into the house and your father went to bed - went back to bed, should I say; is that right?

THE INTERPRETER: Yes.

MR RAFTERY: Now, in the period before that Thursday, your father has told us that he was in bed for about five or six days, which would mean from about Sunday, all right? And your mother has explained that, well, he was in bed and that he was at home, but he didn't always stay in bed. He'd sometimes get up and move around, even though she thought he shouldn't be doing that. Now, do you agree that evidence or not?

THE INTERPRETER: Agree to which evidence?

MR RAFTERY: Well, I was putting the whole picture to you, because I didn't want to - because your father used the phrase "in bed", and your mother has explained what that meant to us. So maybe I should just put it like this: from their evidence, we understand that he was at home sick, mostly in bed but sometimes up, from about Sunday, 11 July until the Sunday, 25 July; is that right?

THE INTERPRETER: Yes.

MR RAFTERY: Now, we've heard that he had a visitor, you've told us, on Tuesday, 20 July, that's Eneliko who came to visit. Apart from that visitor, can you remember whether he had any other visitors in that period of two weeks?

THE INTERPRETER: Yes.

MR RAFTERY: Just so that we're clear about that. Do you mean "Yes, he had no other visitors", or "Yes, he did have other visitors"?

THE INTERPRETER: On the day that Eneliko came, another man also came.

MR RAFTERY: Apart from that other man, did your father have any other visitors over that two week period?

THE INTERPRETER: No.

MR RAFTERY: And I take it, from what you and the rest of your family have said, that he wasn't out visiting anybody for that two week period?

THE INTERPRETER: Correct.

MR RAFTERY: Now, you'll be aware that it is suggested, by some evidence given in this Court, that your father had a visit from Leafa on the Saturday afternoon. Do I take it you disagree with that and say he didn't have a visit from Leafa?

THE INTERPRETER: Yes, I deny that.

MR RAFTERY: As I understood your evidence, you were working in the shop until late afternoon, is that right?

THE INTERPRETER: Yes.

MR RAFTERY: So, how can you be so sure that while you were working in the shop, that someone, Leafa or anyone, didn't come to visit your father in the house behind?

THE INTERPRETER: Most of the people that called in to see Toi, they called in first at the store to inquire where the old man was, and then that will be referred to him. But I am definite, on that day no-one came and asked about the whereabouts of the old man.

MR RAFTERY: So, what you're really saying about the lunchtime period is, Leafa didn't come into the shop and ask where Toi was, is that right?

THE INTERPRETER: Correct, he did not.

MR RAFTERY: But someone could enter the driveway into your house and go straight to the house, without you necessarily being aware of that, if you were in the shop. Wouldn't that be correct?

THE INTERPRETER: Yes, that is correct.

MR RAFTERY: Now, your store is on a corner section, isn't it, at Vaimoso?

THE INTERPRETER: Yes.

MR RAFTERY: And it was in that same position, obviously, in the time we're talking about, in July last year, wasn't it?

THE INTERPRETER: Yes.

MR RAFTERY: And it was a busy store, isn't that correct?

THE INTERPRETER: Yes.

MR RAFTERY: And, on a Saturday evening - sorry - Saturday, late afternoon, in case this doesn't come across correctly in Samoan - would be a busy time in that store, wouldn't it?

THE INTERPRETER: Yes.

MR RAFTERY: And it wouldn't really quieten down until some time, say, round about 6 or 7 o'clock. Wouldn't that be right?

THE INTERPRETER: No.

MR RAFTERY: Now, as you know, apart from the visit by Leafa, it has been suggested in evidence in this Court that your father visited Eneliko on the Saturday evening, and I understand that you deny that, because you say that he was at home, and you observed him at home in bed, as did your mother. That's right, isn't it?

THE INTERPRETER: Yes.

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: Would it be fair to say, Mrs Lafi, that you - and your family, for that matter - have been tempted to exaggerate the degree of your father's illness because of the charges he now faces?

THE INTERPRETER: No. He was really critically ill, sir.

MR RAFTERY: And have you, or your family, been tempted at all to exaggerate the degree of vigilance that you kept on your father during this period of a fortnight?

THE INTERPRETER: Can we have the question one more time, sir?

MR RAFTERY: Yes. Have you, or your family, been tempted to exaggerate the degree of care and observation that you say you took of your father during that period of a fortnight?

THE INTERPRETER: No.

MR RAFTERY: You see, on the third day of this trial, it was being explored, on behalf of your father, and a suggestion was being put, effectively, that he, in the month of July, went to visit Luagalau, all right? And the witness who was being asked these questions by your father's lawyer said this:

That in the week the incident happened, I recall -

"The incident happened" being the incident of Luagalau's death, all right, so if I just say "in the week that Luagalau died" -

I recall Toi came on a Monday or Tuesday, and he wanted to see the Minister. In the same week, I think it was Thursday, he came twice that day and asked to see Luagalau. Luagalau was not in the office.

And then he was asked this - your Honour, I can hand the Registrar the paper after, so that is easier for her - Mr Epati asked this:

May I clarify? This is the Thursday prior to the Friday evening when this thing happened -

In other words, "Luagalau's murder" happened -

Is that correct?

"Yes", she said.

And it was the same week, the Monday and Tuesday of the same week, prior to that Friday? Yes.

Then Mr Epati said:

I have on me a calendar here. Would you confirm that was Monday the 12th, Tuesday the 13th and Thursday the 15th?

And then she said "Yes". And he had no more questions for her. I'll let that evidence be read to you and then I'll ask you the question. But if what you, and others for that matter, have told us is true, you say your father was housebound, if not permanently bed-ridden, from about Sunday, 11 July until Sunday, 25 July; isn't that right?

THE INTERPRETER: I can recall my evidence was that he was critically ill on that Thursday, the 15th, and then he was taken, and I did say in my evidence, like the evidence of my mother, that, although he was sick on the previous day, but he was not confined to bed.

MR RAFTERY: Yes, but you've agreed with us that he was at home for that period, even if not confined to bed every hour of the day, and that he certainly never went out visiting anyone in that fortnight from 11 July until 25 July. Do you now want to change the evidence you've just given to us?

THE INTERPRETER: Toi - from the 15th, he was seriously ill, and he was confined to bed from the 15th to Sunday, the 25th.

MR RAFTERY: But you've told us he was confined to home, even if not to bed, from Sunday, the 11th, through to Thursday, the 15th, when he became critically ill.

THE INTERPRETER: Yes.

MR RAFTERY: So are you saying that evidence that you gave us was untrue?

THE INTERPRETER: The statement that I had given is true; most probably mistaken in hearing, sir.

MR RAFTERY: And if you deal with that Thursday morning in particular, you've told us - as, indeed, your mother before you - that he came from his sickbed, crying that he "was dying", and was taken to Dr Leao, and then back to bed.

THE INTERPRETER: Yes.

 

[COUNSEL TO HIS HONOUR]

 

MR RAFTERY: As we understand it, once your father was taken to see Dr Leoa, from that moment onwards, he was either at the doctor's or back in bed. That's right, isn't it?

THE INTERPRETER: Can we have it again?

MR RAFTERY: I wonder whether Mr Masina can remember it again, or wants me to repeat it.

THE INTERPRETER (SPEAKING FOR HIMSELF): I cannot.

MR RAFTERY: All right.

The evidence that you and your mother have given has suggested that from the time that Toi left your home that morning to go to Dr Leoa, he was either at Dr Leoa's, going to and from Dr Leoa's, or back in bed at home. That is what you say, isn't it?

THE INTERPRETER: On the 15th?

MR RAFTERY: Yes?

THE INTERPRETER: Bear in mind that it was some time in the afternoon that they went, and Toi went with my mother, sir, not by himself.

MR RAFTERY: But up until that time, from what we've heard, you've told us that he was in his sick bed, and came from his sick bed to the shop, crying, saying, "I am desperately ill". That's right, isn't it?

THE INTERPRETER: Sir, I was up at the front of the store, sir. He came from the back. I did not know whether he came straight from there, but he came from that direction, came to see my mother, and he told her that he was dying, and they went to see the doctor.

MR RAFTERY: And, as you've told us, up until that time he was at home all the time, although not always in bed, during that week, is that right?

THE INTERPRETER: Yes, but I was up at the front, at the store, sir, and would not be able to see the back.

MR RAFTERY: But if you're telling the truth, and not exaggerating it, this was a man who, in his own estimation, was at death's door on the middle of that morning, and he was in no fit condition to going visiting Ministers, twice, was he?

THE INTERPRETER: As I have stated before, although Toi was ill, but he was moving about. He was working. It was only when he realised that he was seriously ill - that he was dying - that he came and informed us.

MR RAFTERY: But you've told us, of course, although he was moving about, he never left home. That's right, isn't it?

THE INTERPRETER: Yes.

HIS HONOUR: Any re-examination?

MR EPATI: Just two questions.

 

<RE-EXAMINATION BY MR EPATI [3.19pm]

 

MR EPATI: And during the seven days prior to the 15th, the Thursday, were you or your mother keeping a watch out for Toi's movements at all?

THE INTERPRETER: No.

MR EPATI: Thank you. I have no further questions.

 

[HIS HONOUR TO COUNSEL]

 

HIS HONOUR: Do you ask that the witness be released?

MR EPATI: I do so, sir.

HIS HONOUR: I take it there is no objection?

MR TOAILOA: No, your Honour.

HIS HONOUR: Yes, Caroline, you have finished giving your evidence. You are released as a witness, and you may step out of the witness-box, and leave the courtroom, if you wish.

 

<THE WITNESS WITHDREW [3.19pm]

 

HIS HONOUR: We will now have the afternoon break. Mr Courts Officer, would you please take charge of the assessors.

 

ASSESSORS RETIRED [3.20pm]

 

HIS HONOUR: Adjourn the Court, please, for the afternoon break.

 

SHORT ADJOURNMENT [3.20pm]

 

RESUMED [3.43pm]

 

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

 

ASSESSORS RETURNED [3.44pm]

 

HIS HONOUR: Yes, Mr Epati.

MR EPATI: Thank you. I now call Dr Leao Talalelei Tuitama.

 

<LEAO TALALELEI TUITAMA, sworn [3.46pm]

 

<EXAMINATION-IN-CHIEF BY MR EPATI

 

MR EPATI: Will you please state your full name for the record?

THE INTERPRETER: Leao Talalelei Tuitama.

MR EPATI: Are you a medical practitioner?

THE INTERPRETER: Yes, private practitioner, sir.

MR EPATI: How long have you been a medical practitioner?

THE WITNESS: 30 years (Samoan Language).

MR EPATI: I am sorry, doctor, I should have told you this. Everything needs to be translated. You can give your evidence in the language of your choice, either English or Samoan.

THE WITNESS: Thank you.

MR EPATI:

Q: Would you know Toi Cain, one of the accused in this matter?

A: Yes.

Q: And is he a patient of yours?

A: Yes, I did see him.

Q: In the month of July last year, did you see him at all?

A: Yes, I did.

Q: Would you like to refer to your records to refresh your memory?

A: On 15 July - - - 

Q: I'm sorry. You do one - - - 

HIS HONOUR: Just a moment. The doctor is going too fast for us. Any objection?

MR RAFTERY: None.

HIS HONOUR: Permission is granted to look at notes.

MR EPATI: Thank you.

Q: Doctor, could you tell us: when did you see him in the month of July last year?

A: According to my records, I saw him on 15 July.

Q: And, from your records, what was the diagnosis and treatment you prescribed?

A: When I saw him on 15 July, I diagnosed him to have had pneumonia of the left - lower lobe of the left lung, and I treated him with oral antibiotics.

Q: What else do your notes disclose?

A: Well, he complained of coughing and back - lower back pain, and body aches and fever, and those were the only things I recorded in here.

Q: And did you record your treatment or medical treatment and any - - - 

A: Yes. I treated him with - initially, with a sulphur type of antibiotics; to be specific, Septrim, which is cotrimoxzole, a form of sulphur drug, and - - - 

HIS HONOUR:

Q: Just a moment, Doctor. You mentioned Septrim. How do you spell that, please?

A: Septrim, S-e-p-t-r-i-m.

Q: Yes. And then you went on to say that it is a - something else, and you mentioned another word. Can you spell that word, please?

A: It's a sulphur drug.

Q: Yes. And then you went on to give another name.

A: It is also known as cotrimoxzole.

Q: Would you spell that, please?

A: C-o-t-r-i-m-o-x-z-o-l-e.

MR EPATI:

Q: Did you advise any treatment in terms of going about or staying in bed?

A: Such advice is not always recorded in our records, as most of our records sometimes are in a shorthand kind of language. But in all forms of pneumonia diagnosed, whether in private practice or in the hospital, I always advise to stay in bed.

Q: And is that standard advice for pneumonia patients?

A: In all cases of pneumonia that I see and treat, they are all advised to stay in bed for at least a week, or until such a time that the pneumonia is cleared or treated.

Q: When did you see Toi again, if at all?

A: I saw him again in the clinic on 26 July, that is another office visit to my clinic. But, before that, in between - sometime between the 15th and the 26th of July, Toi and his wife came to my home seeking further medical assistance, because they claimed that the antibiotic that I'd mentioned, given to him initially, was not working very well for him, and that he was getting worse.

Q: And, that visit at home, can you recall what time of the day that was?

A: I cannot recall the exact time, but I think it was in the evening.

Q: Can you recall the date?

A: I think it would be about four or five days following the first visit to the clinic.

Q: And did you prescribe anything?

A: Yes, I changed his antibiotic to another antibiotic.

Q: Is that antibiotic stronger than the other one?

A: Yes.

Q: And, after that visit, when did you next see him - sorry. I understand you said he visited again on 26 July.

A: Yes.

Q: Could you tell us what happened on that visit?

A: On 26 July, he was better. He claimed some improvement and he claimed to be feeling much better than he was when I saw him at home. But, on the physical examination, he still had residual changes in the left lower lobe, indicative of uncleared pneumonia. He was still suffering from pneumonia at that time, though he was getting better. Can I please - - - 

Q: And what did you prescribe on that occasion - sorry.

A: The interpretation of pneumonia is not "water". According to the Samoan version though is "an infection of the lung", which is - so, rather than "water" in the Samoan interpretation, I would say it's "iama" which means "germs".

Q: And what did you prescribe on that occasion?

A: Because he was showing signs of improvement, and that his costs of the later antibiotics, that was Ceclor that I prescribed for him, was only about five days, and that he was showing improvement on that. I advised him to continue on the same medication.

Thank you, doctor. Would you please answer any further questions.

HIS HONOUR:

Q: And what was the medication that you prescribed finally? Could you give us the name?

A: Ceclor.

Q: Can you spell that, please?

A: C-e-c-l-o-r.

Thank you.

MR EPATI: Thank you, I have no further questions.

HIS HONOUR: Any cross-examination, Mr Toailoa?

MR TOAILOA: No, your Honour, thank you.

HIS HONOUR: Mr Raftery?

 

<CROSS-EXAMINATION BY MR RAFTERY [3.59pm]

 

MR RAFTERY:

Q: You diagnosed pneumonia in the lower left lobe of the left lung, is that right?

A: Yes, sir.

Q: So, nothing in the right lung, is that right?

A: According to my physical examination, only one lung was affected, that was the lower part of the left lung, or the lower lobe of the left lung.

Q: So what you diagnosed would not be correctly described as "double pneumonia", would it?

A: I don't use that term "double pneumonia" in my medical language, though that might mean pneumonia of both lower lobes, or both lungs. No, in Toi's case, I diagnosed pneumonia in one lobe of the left lung.

Q: While I accept you don't use the term "double pneumonia", when it is used, it usually refers to pneumonia in both lungs, doesn't it, in both lobes of both lungs?

A: Yes.

Q: The second visit to you, four or five days after the first, I gather was to your own home, not to your practice opposite the hospital, is that right?

A: That's correct.

Q: Whereabouts is your home?

A: At Alafua.

Q: And is it right that your premises, or your surgery, or your rooms, are opposite the hospital at Motootua?

A: That is correct.

Q: And the first visit was to there, is that right?

A: That is correct.

Q: And are you on the ground floor of that building?

A: That's right.

Q: As far as your experience over 30 years of medicine, would it be fair to say that not every patient will necessarily obey, to the letter of the law, the advice that a doctor gives him?

A: That has been proven to be the case, sir. We advise - normally that is our advice, but what the patient does is the patient's choice. Some patients do obey our instructions, some don't, and they stand to take the consequences.

Q: Would it be fair to say that there are some cases of pneumonia that are so acute that they would justify hospital admission?

A: That is correct.

Q: But I take it that, in Toi's case, you did not think it was sufficiently acute to justify that measure. Is that right?

A: That is the case. In the practice - I've been practising in the hospital for 25 years before I moved to private practice. I've been the consultant physician for five years before I resigned from the hospital. We have always had problems with beds in the hospital, and it has been now - the tendency now is to try to treat people at home, unless they require intravenous antibiotics or treatment that cannot be offered at home. But intelligent patients from fairly good families, that we know that they can cope at home, and carry out instructions at home, we prefer to keep them at home so as to spare beds for the very sick ones that really need admission.

Q: And so I take it that nothing that you prescribed for Toi needed to be taken intravenously.

A: At the time I saw him, no.

HIS HONOUR: Any re-examination?

MR EPATI: I have no re-examination.

HIS HONOUR: Any objection to release of the witness, Mr Raftery?

MR RAFTERY: No, your Honour.

HIS HONOUR: I take it there is none from you, Mr Toailoa?

MR TOAILOA: No, your Honour.

HIS HONOUR: And you would seek his release?

MR EPATI: Yes, I do so, sir.

HIS HONOUR: I have done that rather back to front!

Doctor, you have finished giving your evidence. You are now released as a witness, thank you.

 

<THE WITNESS WITHDREW [4.07pm]

 

MR EPATI: Yes. As indicated earlier, the next witness is Dr Malaefou Elisaia. He is a psychiatric officer from the LBJ Hospital in Pago, American Samoa, and we have decided, amongst counsel, that his report can be read by consent, subject to amendments already advised to the Registrar, sir.

HIS HONOUR: Yes. So it is agreed by counsel that a report of the doctor be read, and that that report be treated as evidence of the doctor, as if he had been in the witness-box, giving his testimony, and, because there has been agreement, it may be assumed and concluded by the assessors that there is no dispute about the evidence that will be led in that form.

MR EPATI: Exactly, sir.

HIS HONOUR: Thank you. Could that be translated? Would you hand that to the Registrar, please.

MR EPATI: Have you got the copy, Mr Registrar?

THE INTERPRETER: I have a copy.

HIS HONOUR: Yes. Well, Mr Registrar, would you please read the report to the Court, please?

MR EPATI: Or would you like me to read it, and you translate it?

THE INTERPRETER: For the transcript?

MR EPATI: For the transcript, yes.

HIS HONOUR: Yes. Well, perhaps you read it in English, and my Registrar, true to his function, will interpret it into Samoan.

MR EPATI: Thank you, sir.

August 20, 1999. To whom it may concern. Re Toi Aukuso Cain. Date of birth, 29 October 1931. I saw the above-named person at the Tafaigata Prison in Apia, Samoa, in August 14, 1999, at the request of his family. The family was concerned about his mental health status, since he has a past history of psychiatric problems and has not been seen again by a psychiatrist following the death of his regular physician, the late Doctor Tafunai.

Relevant Background Information. Mr Cain is a 67-year-old Samoan Caucasian, married man, currently in police custody, facing major criminal charges in the High [sic] Court of Samoa, relating to an incident which occurred on August 4, 1999.

Personal History. Mr Cain was born and raised in Apia, Samoa, by his mother's family. He never saw his father. His childhood and adolescent life is unremarkable. He is an electrician by trade, worked for a number of years for Samoa, then embarked on his own business, and apparently quite successful, in a grocery-restaurant, as well as a cattle farmer. In 1979, he was first elected to Parliament, and was a Minister for a number of years until in May 1996, when his term expired.

Past Medical History. His medical records and documents show that in 1966 he was seen by physicians, because of many physical symptoms, including prostate, hernia and nasal polyp surgeries.

Past Psychiatric History. In December 1996, he was seen by a psychiatrist in Brisbane on several visits, where he started treatment for anxiety and depression, where a Doctor Burkett did not think he was fit to return to work. In May 1997, although there was some improvement in his psychiatric illness, he has yet to regain usual or pre-morbid levels of functioning. In November 1997, he was seen by a psychiatrist in Auckland, New Zealand, who also treated him for depression. He was followed up by his own doctor in Samoa on his return, and was to continue on treatment for depression.

When seen on August 14, 1999, he looked a very depressed man. Mood is labile, fluctuating or alternating rapidly between crying, tearful, despairing and tranquillity. Affect or feeling is restricted, speaking slowly with constricted emotional feelings. He feels helpless and was preoccupied with suicidal ideas. He did not appear to show evidence of psychosis. However, cognitive functioning, for example, concentrating, making decisions, short-term memory recalls, were notably impaired. A minimental state examination showed significant impairment in immediate memory recall attention and concentration. Zung Depression Self-Rating Scale and Beck's Depression Inventory showed the presence of severe to extreme depression.

In Summary. A 67 years old man presenting with symptoms consistent with those of major depression and past history of treatment for depression on and off since December, 1996. It appears the incident on August 4, 1999 may have precipitated his rapid deterioration, with suicide a considerably high risk. It appears, nevertheless, the beginning of his decompensated mental health state apparently goes back to December 1996, or perhaps before that, until he received help in 1996. Sincerely -

signed:

Dr Malaefou Elisaia, Chief of Psychiatric Services, LBJ Tropical Medical Center, Pago Pago, American Samoa.

 

[HIS HONOUR TO COUNSEL]

 

MR EPATI: Then, finally, as part of the case, there is an admission pursuant to section 55. I understand Mr Raftery will address the Court on that.

MR RAFTERY: Your Honour, that is correct. I understand you should have a copy of that. It was given to your Registrar this morning. And, your Honour, this is another admission pursuant to section 55 of the Criminal Procedure Act, which I think explains itself in the first paragraph, and I am more than happy to make that admission under section 55.

HIS HONOUR: Well, thank you. This document, like the previous one, will be retained by the Court with the exhibits. It does not need a separate exhibit mark.

MR RAFTERY: No. Again, your Registrar has had a copy of it since the morning, so he can be ready to translate it once I have delivered it.

HIS HONOUR: Yes. But, before he does, I just want to remind the assessors that another admission has been made, and what will shortly be read to you, gentlemen, is a list of some facts which have been admitted. As the word "admittedly" implies, there is no dispute about these facts.

MR RAFTERY: Would your Honour like me to read it now?

HIS HONOUR: Yes, please.

MR RAFTERY:

Following some confusion as to the exact calibre of certain cartridges referred to by Inspector Pou Ualesi, between pages 1851 and 1864 of the transcript of evidenc