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HIS HONOUR: Gentlemen assessors, I am grateful to you for your patience. A number of matters have been discussed in your absence because they relate to the program of the trial, and matters of evidence and procedure. But I can tell you now that, shortly, another witness will be called by the prosecution, and hopefully that witness' evidence will be completed later this morning. Then there will be a break for the morning break, and, after that, you will be brought back into Court because I want to say something to you. And, after that, the Court will adjourn until Monday morning of next week. So you will not be required to be here for any aspect of the trial tomorrow. The Court expects that on Monday the witness Eletise Vitale will give his evidence. So I just share that information with you, so that you have some idea of where we are going for the rest of this week and at the beginning of next week.

But, just to recapitulate and repeat, this morning we will have the evidence of one witness, then a break, then the Judge talking to you, and then there will be an adjournment until Monday.

08.sjpYes. Does the prosecution call the next witness? Mr Latu?

MR LATU: Yes, your Honour. Please call Nicola Betham.

<NICOLA ANNA MARY BETHAM, sworn [10.13am]

<EXAMINATION-IN-CHIEF BY MR LATU

HIS HONOUR: Yes, Mr Latu.

MR LATU: Can you tell the Court your full name, please?

THE WITNESS: Nicola Anna Mary Betham.

THE INTERPRETER: Nicola Anna Mary Betham.

MR LATU: Nicola, can you wait until the translation has been completed, and then you can give your answer?

HIS HONOUR: Perhaps you should inquire as to whether this witness would prefer to give her evidence in English or in Samoan?

MR LATU: Nicola, would you prefer to give your evidence in English or in Samoan?

THE WITNESS: I'll be fine with English.

HIS HONOUR: Well, in that event, the evidence can be given in English. But, Nicola, I would ask you to remember that the question will be asked in English; before you reply, the question will be translated into Samoan. Then you may reply in English, and then your answer needs to be translated into Samoan. So it is a slow process, but, if you just pause at each of those stages, we will not have any difficulties.

THE WITNESS: That's fine.

MR LATU:

Q: Where do you live, Nicole?

A: I live at Vailoa.

 

Q: Are you working at the moment?

A: Yes.

 

Q: Where is that?

A: Apia Rentals.

 

Q: In July last year were you also working at Apia Rentals?

A: Yes.

 

Q: And what do you do at Apia Rentals?

A: I'm a reservations officer.

 

Q: And is that reservations of vehicles that people want to rent out?

A: Yes.

 

Q: What do you actually do when people want to reserve a vehicle?

A: I put their bookings down and wait for them to collect the vehicles.

 

Q: And is there any document which is usually filled out to record the rental of the vehicle?

A: Yes, it's what we call a rental agreement.

 

09.acsQ: And does that record all the details in relation to the rental of the vehicle?

A: Yes.

 

Q: Now, Nicola, I would like to take you back to July last year, around about 9 July last year - 5 July last year. Can you recall making out one of these, or filling out one of these documents for the extension of a red Suzuki vehicle from your place of work?

A: Extension was from the 9th.

 

Q: And when? Extension from the 9th until when?

A: Until the 12th.

 

Q: And was this in relation to what sort of vehicle that you work at?

A: It was a Suzuki Sidekick.

 

Q: And can you recall who requested the extension of the rental for the Sidekick?

A: I remember the name Upu.

 

Q: And was this a male or a female?

A: It was a female.

 

Q: And how was the request for the extension made? Did she ring you up, or did she come to your office?

A: She came to my office.

 

Q: And then you spoke with her?

A: Yes, I did.

 

Q: And then she requested the extension?

A: Yes, she did.

 

Q: Now, can you remember, when she came over to request the extension, did she come with the car that was already the subject of the rental or not?

A: No, I don't remember if she came in the car.

 

Q: Do you remember, did she say anything, whether the rental was done for her own sake, or was it done on somebody else's behalf?

A: She did not say. I don't remember what she was saying at that time.

 

Q: So when she came over to the office to request the extension, do you know whether a document or an agreement was filled out?

A: Yes, there was.

 

Q: And was it yourself that filled out the extension?

A: Yes, I did.

 

Q: And did Upu, this person, did she sign for the extension?

A: Yes, she did.

 

Now, your Honour, I would like to show the witness this document.

HIS HONOUR: Mr Registrar, if you would show it to the witness.

MR LATU:

Q: Can you look at the document, please? Do you recognise that document?

A: Yes, I do.

 

Q: Can you look at the signature at the bottom of that document? Is that the signature of this person, Upu, that came to request the extension?

A: Yes, it is.

 

Q: Now, can you look at the left-hand side column, please, which is shown on that document?

 

Your Honour, at this stage, I would like to produce this as a prosecution exhibit, your Honour.

10.acsHIS HONOUR: Number?

THE INTERPRETER: P28.

MR LATU: P28, your Honour, it is a rental agreement.

HIS HONOUR: Rental agreement will be received. Is there any objection?

MR EPATI: No objection.

MR TOAILOA: No, your Honour.

HIS HONOUR: It will be received and marked exhibit P28. I hope that is not a number used yesterday. Yes, it will be exhibit P28.

EXHIBIT #P28 RENTAL AGREEMENT

HIS HONOUR: Have you got copies for us?

MR LATU: We have got only three copies here.

HIS HONOUR: Well, I think I have already been supplied with a copy, so have you got four - perhaps some more copies could be made, but I am not very happy to have uneven numbers of copies for the assessors; they should each have a copy, where it is possible.

MR LATU: We will attend to making copies, your Honour, but we have only got three for the moment.

HIS HONOUR: Yes. Well, gentlemen, if you could just share. Perhaps the foreman can have one to himself, and the other four can share. I think each of the assessors is looking at the document. Yes, go ahead, Mr Latu.

MR LATU:

Q: Now, I would just like to take you through this document, please, Nicola. On the left-hand side column of this document there is a number. Can you tell us what the number is for?

A: Top number says "14252", and the other number is a phone number "23157".

 

Q: No, the very top number?

A: The very top number is 14252.

 

Q: Is that the licence plate number for this particular vehicle?

A: Yes.

 

Q: Now, the second lot below the number there has the customer's name and address and phone number, and there is a name of Amy Vitale. Can you see that?

A: Yes.

 

Q: Now, did you deal with this person by the name of Amy Vitale at all?

A: No.

 

Q: Well, can you tell us how come this name appears on the document which you filled out?

A: This is an extension form. The original one - not the original one, but the first one has her name on it, so if she wants to extend it, I would have to bring her name forward to the extension form.

 

Q: Would it be correct, then, to say that it would be the person, Amy Vitale, who first asked for the rental of this vehicle?

A: Yes.

 

Q: And just moving across to the other column on the right-hand side. Can you please explain the various dates which are shown there, as in "date" and "time in", and "date" and "time out", please?

11.kaiA: Extension was done from the 9th until the 12th of July.

 

Q: So would it be correct to say that the original rental was completed on the 9th, and the extension started from that date onwards?

A: Yes.

 

Your Honour, I would like to show another document to this witness.

HIS HONOUR: Very well. Gentlemen assessors, whoever has the copy of the last exhibit, could you please mark that "copy of exhibit P28"? Yes.

MR LATU:

Q: Can you look at that document, please?

 

HIS HONOUR: Have we got copies?

MR LATU: Yes. We have also got three copies, on the same basis as before, your Honour. We can make some further copies.

HIS HONOUR: Is there any objection to the tender of this next document?

MR TOAILOA: No objection.

MR EPATI: No objection.

HIS HONOUR: There being no objection, it will be received and marked exhibit P29. It is to be known also as a rental agreement.

EXHIBIT #P29 RENTAL AGREEMENT

MR LATU:

Q: Nicola, can you look at this document? Is this a copy of the initial rental period in relation to this same vehicle which the extension was asked for?

A: Yes.

 

Q: And is that initial rental period from 5 July to 9 July?

A: Yes.

 

Q: And is the customer for that initial rental period also stated in that document?

A: Yes.

 

Q: And is that Amy Vitale Treviranus?

A: Yes.

 

Q: Do you know the signature which is shown at the bottom of that document?

A: No.

 

Thank you, Nicola. Just stay there and answer questions from my friend.

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

MR TOAILOA: Yes, your Honour.

MR TOAILOA:

Q: Now, Ms Betham, could you please refer to exhibit 28? Now, in particular, the signature at the bottom. Now, do you agree that the signature there is quite legible?

A: Yes.

 

Q: And do you agree that, according to what I can make out of the signature, the last name appears to be Malifa?

A: Yes.

 

12.sjpQ: Now, would you agree, Ms Betham, that this is quite - this is just another normal rental agreement?

A: Yes.

 

Q: There is nothing unusual about it?

A: No, there's nothing unusual about it.

 

Right, thank you. I have no further questions.

HIS HONOUR: Mr Epati?

MR EPATI: I have no questions, thank you.

HIS HONOUR: Any re-examination?

MR LATU: No, your Honour.

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

MR LATU: Yes, your Honour.

HIS HONOUR: Is there any objection?

MR EPATI: No objection.

MR TOAILOA: No objection, your Honour.

HIS HONOUR: Ms Betham, you have finished giving your evidence. You are released as a witness from this trial and you may step out of the witness box and you are free to go.

<THE WITNESS WITHDREW [10.32am]

HIS HONOUR: Gentlemen assessors, perhaps you should just mark that second document, if you have not already done so, exhibit P29 - or rather, "copy of exhibit P29". As I indicated a little earlier this morning, we will now have the morning break, and after the morning break, I will have some things to say to you. Mr Courts Officer, would you please take charge of the assessors. Mr Registrar, would you adjourn the Court for the morning break.

13.kaiRESUMED [11.25am]

HIS HONOUR: Would you bring in the assessors, please?

HIS HONOUR: Gentlemen assessors, I would be pleased if you would give me your attention. I have, on more than a few occasions during this trial, advised you, directly or indirectly, that it is your duty to decide this case upon the evidence placed before you in this courtroom, and on nothing else. At an early stage of this trial, I said a number of important things to you about your responsibilities as assessors. During those quite extensive remarks that I made to you, I said this: "Your deliberations must not be affected by what you have read in the press, or by what you may have seen and heard on television, or by what you may have seen and heard on a video, or by what you may have heard on the radio, or by what you may have been told by someone else. Your deliberations must not be affected by rumours that you may have heard. You should not let sentiment or emotion play any part. 14.sjpYou should reach your verdicts by reference only to the evidence placed before you in this courtroom." I went on to say, gentlemen, that, "If you adhere to my advice about not being affected by matters extraneous to this criminal trial there will be no risk of a mis-trial or a miscarriage of justice." A verdict according to prejudice, idiosyncrasies, emotions or external deliberations will inevitably lead to a miscarriage of justice. I went on, gentlemen, to warn you about not speaking with, nor conversing with, anyone other than yourselves on the subject of the trial whilst you are engaged in this trial.

This warning and direction about not speaking with outsiders about the trial applies to when you go to your place of residence each night and each week-end. I suggested that, "You should not discuss this trial with your own family, friends, associates, villagers, and aiga", and you will remember that I have repeated that advice on several occasions since. I went on to say, in those introductory words of advice and direction, that "there is, of course, no reason why you should not discuss with your colleagues, during the course of the trial, any of the matters that have been raised during the trial."

I also made it clear to you that it would be improper for you, as assessors, to read newspapers, to watch TV, to listen to the radio, in search of information about the day's events in Court.

Gentlemen, it came to my attention today that some of the reports of this trial in the media have been inaccurate. 15.acsI would not expect you to have become aware of those inaccurate reports, because, if you have adhered to my advice and direction, you will not be aware of what may have been written in newspapers about the trial, or said about the trial on radio or on TV. But, just in case you should have seen or heard something in the media, inadvertently, I remind you to put it out of your minds.

This is very important, gentlemen. You should remember that your verdicts must be based on the evidence, and the evidence alone.

As you leave this courtroom today, until next Monday, for what will be, for you, a long weekend, I remind you of some things. I remind you not only to avoid reading, watching, or listening to the media coverage of this trial, but also to refrain from discussing the evidence, or any of the developments in this trial, with persons other than yourselves.

Gentlemen, you should be strong to resist the temptation to talk to anyone, including those close to you, about this trial. You should rebuke anybody (and, if necessary, report to me, through the Registrar) who tries to talk to you about the case.

You will, in a moment, be taken to your homes for the long weekend, and I expect to see you all on Monday next at 9.30. Mr Courts Officer, would you please take charge of the assessors.

16.sjp

HIS HONOUR: I say this, for the information of all in Court, but most particularly for representatives of the media. As I have just indicated to the assessors, it has come to my attention that there have been one or two inaccurate press reports of this trial. I urge the media to be accurate and I urge the media to avoid doing anything which might operate unfairly against the interests of either or both of the two accused or which might put at risk the integrity of this trial.

I feel certain that the individual representatives of the media would not wish to bring about a mis-trial or anything which might contribute to a miscarriage of justice.

HIS HONOUR: Inferences should not be drawn and conclusions of fact should not be reached by the media as they report this trial. Accurate reporting of what the witnesses may have said is permissible. When items such as bullets, guns and the like are referred to in media reports, the words "alleged" or "allegedly found", etcetera, should be used. 17.kaiReferences to "the murder weapon", as opposed to "the alleged murder weapon" should not be made.

A quantity of the evidence adduced at this trial to date may well fit into the category of circumstantial evidence from which the assessors in particular may ultimately be invited to draw inferences. It would be mischievous and wrong for the press to seek to draw inferences in their media coverage of this trial. I urge the media to be responsible.

Unless there are any applications, I propose to have this trial adjourned until Monday next at 9.30 am, when I expect that the prosecution will be calling the witness Eletise Leafa Vitale.

Mr Registrar, would you please adjourn the Court until Monday next at 9.30 am.

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