It is important, when you consider his evidence, to not forget those things, not to lose sight of them, but there are other matters as well that you will need to consider. As you know, he was described, and has been referred to by his Honour, and by others, as a hostile witness. What that means is that, when he first gave evidence, permission was given by his Honour to the prosecution to cross-examine their own witness, something they are never, ever allowed to do unless that witness has been declared hostile. So, in approaching the evidence of Alatise, you must bear in mind those warnings.

They will be given, I feel sure, as I say, by his Honour, because, in every criminal trial where those factors arise, a judge is duty bound to advise assessors, or in other jurisdictions, a jury, about those matters. But the fact that his Honour will give you those directions does not mean to say that there is something special about this trial different from any others. This is, I accept, a special trial for Samoa, but, in any trial where any witness is hostile, or in any trial where any witness has admitted telling lies on oath, in any trial where a person, a witness, has some purpose of their own to serve, these warnings are given.

There is nothing special about this case that gives rise to those warnings from any other case where they might also arise. While you must bear those directions in mind when examining the evidence of Alatise, do not be overawed by them.

Having borne them in mind in approaching Alatise's evidence, I come back to what I said at the beginning, that for those of us who sat here - and there were few of us on that day - but sat here and listened to Alatise as he `cried his heart out' in agony, telling us something that was difficult for him to do, namely, that he had been lying for six days, and his father and Toi were the two men behind the killing of Luagalau. When you bear all that in mind, there is no doubt, says the prosecution, that what we were witnessing was the outpourings of a man eventually coming to terms with his conscience and deciding that now he had to tell the truth.

The bare words in the transcript of this trial do nothing to capture the agony, the drama, and the truth of that very important moment. Providing you bear in mind the warnings given to you by his Honour, you would be entitled to convict both these men on the word of Alatise alone, if you believe him, and if you believe, as I submit to you, that you should, that on that morning he was speaking the truth, undoubtedly.

But, with a witness who has undoubtedly told lies on oath, upon his own admission, and to whom those other matters that I have just mentioned apply, it is always wise to look to other evidence in the trial, to see if there is some support for what he says, or some evidence totally independent of him, that proves the case against the accused.

In this case, there is a wealth of other evidence that points to the guilt of both accused, so you will have, in the prosecution's submission, absolutely no difficulty in finding all the support, confirmation, or corroboration anyone would require for the words of Alatise.

But, before I turn to examine some of that other evidence, I would like to say to you something about the law. You have been told already that the law is for his Honour, and that is correct, so that whatever I say about the law, or my learned friends for that matter, is subject always to what you hear from his Honour when he sums-up the case to you next week.

I would like to think that what I say to you now about the law will be exactly the same as his Honour will say to you about the law next week, but, if you detect any differences between what I say and what his Honour says, take it from his Honour and not from me. I hope that any differences that may exist will only be in forms of expression rather than in substance.

Perhaps the most important and most fundamental thing to say to you is that it is the job of the prosecution to prove the guilt of these two men, not they to prove their innocence. And the prosecution must prove their guilt in the time-honoured phrase of the English common law "beyond reasonable doubt".

What that means, in effect, is that, at the end of the day, when you have examined all the evidence, listened to the submissions of counsel, listened to his Honour's summing-up, you have to be satisfied so that you feel sure of the guilt of these two men. If, at the end of the day, you do not feel sure because you are left in a state of reasonable doubt, not vague or fanciful doubt, but reasonable doubt, then they are entitled to be found not guilty.

"Inciting" and "counselling" I can deal with together, because, in effect, it means "encouraging in some way". "Procuring" just means "getting someone to do it", in other words, "getting someone to do the murder".

The starting point, of course, before deciding whether they did anything to help or encourage anyone to commit any murder, is to see whether they had any knowledge of that before they gave any help, assistance, or encouragement. If I can just give you a simple illustration. If Alatise borrowed a car from someone in his village on the night of 16 July, and he drove to Alafua in the car and killed Luagalau, the car, and the provision of the car, gave "help" or "assistance" to Alatise in committing that murder. But the person who lent him the car to help get to Alafua would only be guilty if he knew that Alatise was going to kill someone at Alafua. If, on the other hand, all he knew is that he was going to the HRPP party at Alafua, he would not be guilty, because he did not know what the car's real purpose was.

Here, leaving aside the obvious inferences that you will be able to draw from all the evidence in any event, there is direct evidence of the knowledge of both accused. In the case of Leafa, you have the direct evidence, given in Court, from both Alatise and Toi, about Leafa's knowledge of the murder of Luagalau. In the case of Toi, you have the evidence of Toi himself about his knowledge of the murder of Luagalau; you have the evidence of Alatise, and you have the evidence of Eneliko.

I shall speak more of these matters later, but, at this stage, my purpose is just to show you the sources from which the relevant evidence might be seen to come. So, once you have remembered that there is plenty of evidence about the knowledge of both accused about the murder of Luagalau long before it actually happened, you then look to see what evidence is there, if any, of any acts of `assistance', `encouragement', `inciting', `counselling' or `procuring'. And, although, of course, Alatise was the murderer, it is what encouragement, or support, or assistance they gave Alatise that is important.

It is extremely important, however, to begin with the hatching of the original plot, underneath the pulu tree at the back of this Hall. For reasons that I will explain later, we can safely assume that occurred sometime in or about April of last year. But, in that original plot, whatever date it occurred on, we know that Leafa and Toi together decided to kill Luagalau. While Toi agreed with me in cross-examination that there may well have been discussions with Leafa in his office prior to meeting under that pulu tree about the killing of Luagalau, the actual contract between the two men was made there at the rear of this Hall.

So, by the end of that meeting between the two men under the pulu tree, `the die was cast' and `the fate (of Luagalau) was sealed'. At that time, the two men were in agreement, or in conspiracy, together to kill Luagalau, and everything that those two men did or said thereafter, in furtherance of that agreement, was done or said on behalf of both of them. And while, as I said a moment ago, we need to look at what encouragement or support they rendered to Alatise, we need to look at what encouragement they rendered first to Eneliko, because that will tell us a lot about their intentions and about what were their intentions when they came to deal with Alatise in turn.

So an obvious act of `assistance' was the gun. It was given, by Leafa, to Toi to give to Toi's man, Eneliko. When Toi gave it to Eneliko, he was `assisting' Eneliko in the enterprise that he was being hired for. When Leafa provided $2000 as down-payment for the `contract' price, he was doing something to procure the killer to do the killing. When Toi gave him - that is Eneliko - that $2000, he was also doing something to `procure' Eneliko's services. When Leafa promised more money to come at a later date, he was `inciting' or `encouraging' that murder. When Toi promised Eneliko more money to come, he also was `encouraging' or `inciting' Eneliko. When Toi took Eneliko to see the houses, not just of the Prime Minister, but also of Luagalau, he was doing acts to `help' Eneliko in the task on which he was engaged. The very act of engaging Eneliko to do the killing is an act of `procurement' and, therefore, being a party to the killing.

Now, all that happened before Alatise was engaged to do the killing, but it is important that you remember all of that because that tells you volumes about what was in the minds of both men before Alatise was finally engaged to do the killing, and when Alatise is engaged, it is still the same plot, still the same `contract', still the same conspiracy to kill Luagalau. It is just that the two plotters have chosen a different agent to do the killing, and all that they did and said before hiring Alatise is extremely relevant to telling you about what was in their minds, what were their intentions, what they were doing when they did and said various things to Alatise.

So, when Leafa has the first conversations with his son, he alone with his son, without Toi, he is still speaking on behalf of Toi, because the two of them are in that plot from the moment they agreed under that pulu tree weeks or months before. So those words, those blandishments of Leafa to try and get his son to do the killing for them were acts of `inciting' or `counselling', attempts to `procure', again to use the language of the law. And, as I say, all that he said he was saying on behalf of Toi just as much as on behalf of himself. In providing the gun to him to do the killing, he was helping him, or `aiding' him, to use the language of the Crimes Ordinance.

In retrieving the gun from Eneliko and bringing it to Vaimoso to hand over to Leafa, Toi was also `helping' Alatise, because he was getting the murder weapon for him. Toi himself also directly `encouraged' Alatise in that meeting between him, Leafa and Alatise, when he talked about Luagalau being "like a dog". And you may think - it is a matter for you - that in referring to Luagalau as a "dog" at that stage, he was not really using a term of abuse, but explaining that Luagalau was difficult to catch, because he moved too fast, but that, "once you do get hold of him, you are to kill him."

All that is encouragement, `inciting', `counselling', whatever you call it. As I explained to you before, acts of help can be positive acts by doing something, or, as the law says, by not doing something. In Toi's case, by agreeing to stop going up to Luagalau's house, to keep out of Alatise's way so that Alatise could get about the plan unhindered and unencumbered by the presence of Toi, he was omitting to do something in order to help Alatise in the ultimate object of the enterprise, namely the death of Luagalau.

In the offer of a new house or a new car, what Leafa is doing is seeking to `procure' the services of Alatise. It is another act of `procurement', another act of encouragement. In the hire of the red Suzuki, even if it might have been used by others for other purposes as well, you see a further act of `assistance'. In taking his son to show him Luagalau's house, he is rendering further `assistance'. And in all those further discussions that they had, after the very first time that he sought to recruit Alatise's services, he is providing further encouragement, or `incitement', to murder.

Now, all of those are either words spoken or things done, which make these two people parties to murder. They may not be all the things that they said or did - you may think of others, yourselves, from the evidence - but they are probably a good resume of the majority of them. And when you consider the evidence in relation to those, as I will at a later stage, it is undoubtedly clear that these two men did play a part in the death of Luagalau. But I shall return to this after the break.

HIS HONOUR: Yes, we will take the morning break now. Gentlemen assessors, if you would go with the Courts Officer, please.

 

ASSESSORS RETIRED [10.42am]

 

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

 

SHORT ADJOURNMENT [10.42am]

 

RESUMED [11.08am]

 

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

 

ASSESSORS RETURNED [11.09am]

 

HIS HONOUR: Yes, Mr Raftery.

MR RAFTERY: Now, although I have listed to you a large number of things that these two men did to encourage or assist the former accused, Alatise, the actual murderer, do not forget that both men denied all. Leafa denies every single allegation I have just been listing. Toi denies every single allegation of `assistance' or encouragement that I have mentioned. He only agrees one thing in the list of things that I have been talking about, and that is the initial `contract' made under the pulu tree. And he claims that, from a very short while thereafter, his every act and every utterance was, in fact, to the opposite end.

These two men claim that they are totally innocent; that they are much maligned by the prosecution, and that they had absolutely no part to play at all, in any way whatsoever, in the death of Luagalau. It is that process that I now want to examine.

If we look, for a moment at this gun, that, in fact, tells you an awful lot. It is, in itself, another `witness'. It is a silent witness, but it speaks volumes about the inter-relationship between these two accused with each other and with the murderer. And, if we examine the story of this gun, from its time in the United States until its time when it was actually used to murder Luagalau, we will learn, not just of the inter-relationship of these men and the murderer, but also a lot about the timing of various events along the route.

Alatise says this was a gun that he had with him when he lived in the United States. Whether that be true or not, or whether it be a bit of exaggeration on Alatise's part, does not matter, because we know that that is not a gun that is indigenous to Samoa, and we know that it must have been brought from outside, from overseas, into Samoa and in all probability, smuggled into Samoa. And the prosecution says that that gun was supplied to Alatise by Leafa.

Leafa adamantly denies that. And, in his cross-examination of Alatise, Mr Toailoa sought to try and gain some support for Leafa's position. On that Tuesday morning that I mentioned to you at the beginning of my address, Alatise told us that that gun was given to him by Leafa to kill Luagalau. Mr Toailoa sought to cross-examine him upon that, and, in the course of that cross-examination, he got answers from Alatise to the following effect: that he had gun in his possession in Samoa; that he kept that gun secretly hidden at Malie, in his secret hiding place of which he told us; and that where it was hidden was unknown to any member of his family, including Leafa. And from that evidence given in cross-examination to Mr Toailoa, Mr Toailoa has suggested, in the course of this trial and, I imagine, in his final submissions to you will try to assert, that this means that it was always - I repeat the word "always" - in Alatise's possession and, therefore, never in Leafa's.

But, two things, you may have noted during that cross-examination, were never asked of Alatise. It was never once suggested to him that he had it in his possession all the time, "always", from the time he had it in America until the time he murdered Luagalau. And the other thing that was never put to him directly in cross-examination is the question that I asked, and the answer that I received, about that gun of Alatise on that Tuesday morning. Many of the other propositions I put to Alatise, and his answer that "that was correct", were put to Alatise' and, in contrast to that, it was put to Alatise that his father, Leafa, would get in the witness-box and say quite the opposite, and he was asked for his comment on that, but never once was that done directly in relation to what he said about his father giving him the gun.

So, the assertion that his evidence amounts to saying he had it in his possession "always" is not, in the prosecution's submission, justified. But to say, as he did, that he had it in his possession in Samoa is undoubtedly correct, because he did. To say that he kept it hidden at Malie is undoubtedly correct. To say that none of his family, including Leafa, knew of that secret hiding place may well be correct. But I would accept that my learned friend is fully entitled to put this submission to you, but it is one of the misfortunes - and I make no criticism of anybody for this - of the rules in relation to hostile witnesses, that, in the particular circumstances, the prosecution have no right of re-examination to clear up any ambiguity. You have to do the best you can with the questions and answers and the other evidence.

When you bear in mind that never once was he asked, and never once did he ever say, "I always had this gun in my possession in Samoa." And, when you bear in mind Alatise said that, for the purposes of killing Luagalau, he had got it from his father, we will see that the evidence of at least 10 witnesses suggests that, when he says he "got it" from Leafa, he did. And it does not matter whether it was smuggled into Samoa; whether Alatise or anyone else had anything to do with its smuggling into Samoa; the fact is that Leafa undoubtedly had it for a period that we can indicate, on the evidence, which began in 1997, if not before.

And we begin the examination of the evidence with the evidence of Frances Brebner. She told us that she saw a gun similar to the one in Court, similar to the murder weapon, at a meeting of the EPC Board sometime, unclear exactly when, but certainly in the second half of 1997. She, as I have indicated, did not purport to identify this gun and say "P8 was the gun I saw". All she could say is "it looked similar", and, in terms of its size and some of its features, it was "similar".

Leafa's case is "I did not have the weapon P8, nor did I have any weapon that looked anything like it." So, Frances Brebner cannot just be mistaken and cannot have got it mixed up for another gun. She must, in effect - and this is what Leafa says - be lying.

You might wonder what possible motive could Frances Brebner have for lying. Now, let me say this, that when I talk about motive in relation to this witness, and to others, Leafa was asked, first by Mr Toailoa, and later by me in cross-examination, if he knew of any motive or knew of any reason that could give rise to a motive in his own behaviour. Let me emphasise - and I cannot emphasise it strongly enough - Leafa, and, for that matter, Toi, is under absolutely no obligation whatsoever to provide any motive. And that flows from that obligation that I have pointed out to you earlier on, that it is for the prosecution to prove their guilt, not they their innocence. But they are entitled to be asked that question, and, if they produce some motive, then we can explore it and see how worthwhile or how absurd it is. But do not think that, by my asking these questions, I was seeking thereby to try and impose any obligation on the defence at all to provide any motive or explanation.

Having said that, I still say it is not an unfair question to ask yourselves: "Just what possible motive could Frances Brebner have to come to lie to this Court?" What she has done, I suggest, is a brave thing. She has "put her neck (as it were) on the line"; she is willing to, in another phrase, "stand up and be counted".

I shall come to say something of Leafa's character later on, but in terms of character, I suggest to you that Frances Brebner stands head and shoulders above someone like Leafa. She has, I would suggest, in reality, nothing to gain, but possibly much to lose by taking the stance she did. It will be for you to judge her and whether you thought she was honest, and you will do that, not just by what she said, but by your own estimate of her as you watched her giving evidence, and observed her and her body language in doing so; and, if you believe her, then she saw a gun similar to this in Leafa's office in late 1997.

Leafa says he had no other gun of any sort whatsoever, and we know, according to Alatise, that it was from Leafa that he got this gun. So, from that evidence alone, before we examine anything else, it would suggest, therefore, that the gun Frances Brebner saw was this one.

But lest there be any doubt about it, the prosecution called one other witness who was present at that meeting, Laulu Stanley, and he says that, when he left the meeting to go to the bathroom at one stage, he had not seen any gun whatsoever, but,when he returned,he saw this gun, P8, leaning up near Leafa's chair. He identified that gun as the gun he saw. Unlike Frances Brebner, he had intimate knowledge of such weapons; and, you will remember, he spent some time as a mercenary in Laos, where he had used M16s. He described that gun as an M16. It is, in fact, an AR180.

A ballistics expert like Dr Buckleton would probably know the difference "at a drop of a hat", but not necessarily the layman. But what Dr Buckleton told us was that the AR180 was a rival company's answer to the M16, aiming really at the same market, and, as he said in evidence, firing