MR TOAILOA: Now, Eneliko, can you please tell the Court whether you discussed your evidence with anybody last night after you gave evidence in this Court?

 

THE INTERPRETER: No.

MR TOAILOA: I will not pursue that any further. Now, could you look at the microphone in front of you. Can you see the microphone in front of you?

 

HIS HONOUR: Are you asking him to direct his voice across the Court?

 

MR TOAILOA: No, no, I am just asking him whether he can see the microphone in front of him.

 

HIS HONOUR: You mean this thing?

 

 

[HIS HONOUR INDICATES THE BLACK ROUND FITTING

AT THE END OF THE MICROPHONE ARM]

 

 

MR TOAILOA: Yes.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Can you touch it so that I am sure you know what you are referring to?

 

THE INTERPRETER: That, sir.

 

MR TOAILOA: Can you tell the Court what colour that microphone is?

 

THE INTERPRETER: Black.

 

MR TOAILOA: Now, immediately following the microphone there is a shiny arm of a microphone stand. Can you see that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Can you also touch it so that I am sure what you know exactly what I am referring to?

 

THE INTERPRETER: This one, sir.

 

MR TOAILOA: Okay. Now - - - 

 

HIS HONOUR: The witness touches a shiny arm to a microphone stand, having previously, in answer to an earlier question, touched the round ball-like object at the top of the microphone into which people should speak. Yes.

 

MR TOAILOA: Is that to be translated, your Honour?

 

HIS HONOUR: No, no, that is for the transcript. Gentlemen assessors, what I have just said is converting into English what the witness has pointed to, for the purposes of the transcript. You and I both saw what the witness did and said.

 

MR TOAILOA: That shiny part of the microphone stand that you just touched and indicated to the Court that you understood what I was referring to, now, do you confirm that that is of a silvery colour?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. So we have now identified what is black and you identified what is silvery in colour. You confirm?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So do I therefore take it that when you were referring, in your evidence-in-chief, to an object that was black you were referring to an object having the same colour as the microphone, is that correct?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And when you were referring to an object which had a silvery colour you were referring to an object which had the colour of the arm of the microphone stand, is that correct?

 

THE INTERPRETER: I have mentioned silver in colour, sir, because it was partly silver and partly black, sir.

 

MR TOAILOA: I will come back to that last answer but let me just ask you to answer my question first, please.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So I therefore take it that you are not colour-blind?

 

THE INTERPRETER: Yes.

 

HIS HONOUR: Yes, I am not; yes, I am blind?

 

THE INTERPRETER: Yes, I know colours.

 

MR TOAILOA: Now, let us go to your answer, given two questions ago, where you were referring to something that you had described yesterday as being silver but now you have also said that there were also some black parts of that object. Now what object were you referring to in particular?

 

THE INTERPRETER: Things that I saw.

 

MR TOAILOA: I am asking you to name the object. Was it a vehicle, a kangaroo, or whatever? Name it, please.

 

THE INTERPRETER: Well, I cannot tell you it was a car, because it is not in my statement. I can only tell you what I had stated in the statement.

 

MR TOAILOA: Well, the question that I am asking you is very simple. Tell us what you were referring to? What object?

 

THE INTERPRETER: Gun.

 

MR TOAILOA: What gun?

 

THE INTERPRETER: Small gun.

 

MR TOAILOA: What small gun?

 

THE INTERPRETER: I - it was a gun. I do not know the calibre.

 

MR TOAILOA: Is it here? Is it here in this courtroom? Or have you seen it here in this courtroom?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Was that the small handgun that was shown to you yesterday, is it?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, yesterday, when you were asked by Madam Attorney-General to describe that gun, this was how you described it, and I am referring to page 695 of the transcript.

 

THE INTERPRETER: 625?

 

MR TOAILOA: 695.

 

THE INTERPRETER: 695.

 

MR TOAILOA: 695. The Attorney-General asked the question, "And can you describe that gun for the Court?" Your first reply was, "It's about that length", and then you indicated, with your palm, what you thought the length of the gun was. Do you recall that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Yes?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And then you said - then you went on further, "It's about silver in colour."

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Silver in colour. His Honour interrupted, or intervened, and he said, "I did not hear the last part of the answer." Again you replied, "It's silver in colour." Do you recall that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So that is the second time you have described the colour of the gun as silver, do you agree? No, could you please rephrase your translation. Thank you. Just - - - 

 

THE INTERPRETER: Sir, I did not mention black, because silver was the dominating colour, sir.

 

MR TOAILOA: Just answer the question, please. Do you want me to repeat the question?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, the question was, after his Honour inquired further as to the last part of your answer that you gave, you said, "It's silver in colour." Now, do you confirm that, at that point of your testimony yesterday, that was the second time you had described the gun as being silver in colour?

 

 

[DIALOGUE BETWEEN COUNSEL AND HIS HONOUR]

 

 

 

HIS HONOUR: Gentlemen assessors, it is going to take a little time to locate a tape so that something can be played back. For that to happen, I am going to ask you to go back into the assessors' room. Mr Courts Officer, please take charge of the assessors.

 

 

ASSESSORS RETIRED

 

 

Eneliko, if you would go with the police, please, and not discuss your evidence with anyone.

 

Yes, Mr Registrar, would you adjourn the Court for a few minutes, please.

 

 

SHORT ADJOURNMENT [10.06am]

 

 

RESUMED [10.14am]

 

 

[HIS HONOUR TO COUNSEL]

 

 

HIS HONOUR: Yes. Could the witness be brought back, please, and also, Mr Courts Officer, would you bring in the assessors, please.

 

 

ASSESSORS RETURNED

 

 

HIS HONOUR: Mr Registrar, if you would interpret this, please. In a moment the transcription service will play back a part of the tape which is recorded at page 695 of the transcript. I say this to all concerned, perhaps first and foremost to counsel, it is fundamentally important that no one speaks during any playback of the tape. The reason for that is that there will be no capacity to take a record or make a transcript of what is then said. So we should all remain silent while the tape is replayed.

 

After the tape has been replayed it will take a moment or two for the machinery to be put into operation again, and I will indicate when it is free for anyone to speak. If you would play the tape please.

 

 

PLAYBACK [10.17am]

 

 

HIS HONOUR: We now can speak. Did you hear sufficiently, Mr Toailoa?

 

MR TOAILOA: Yes, I heard that, your Honour, and I - - - 

 

HIS HONOUR: And did you - yes, go ahead.

 

MR TOAILOA: I do confirm it was the interpreter who repeated the answer, not the witness, so I was wondering if we could correct this part of the transcript so that it can reflect that, in case we get misled again when it comes to final addresses.

 

 

[THE TRANSCRIPT IS CORRECTED]

 

 

HIS HONOUR: Now, Mr Toailoa, if you could continue with your cross-examination.

 

MR TOAILOA: Yes.

 

HIS HONOUR: Whether you wish to have anything conveyed to the assessors, it is for you really.

 

MR TOAILOA: No, not at this point, your Honour, but just for the record I would seek to have that last question of mine withdrawn, because it would not be proper to be asked.

 

HIS HONOUR: You are referring to the last question that - - - 

 

MR TOAILOA: That was the - - - 

 

HIS HONOUR: - - - that led to some dialogue between the Judge and counsel and, ultimately, which led to an adjournment of the Court, and for a playback of the transcript. I will, therefore, note that that question is withdrawn.

 

MR TOAILOA: Thank you, your Honour. Now, Eneliko, according to the record, the next question which was asked of you by Madam Attorney-General in respect of the gun is found on page 695 of the transcript at line 16. This was the question, "And apart from the colour, what else can you say about the gun?" The answer that you gave, "Sir, just the colour, the butt, as shiny." Now, do you recall that? Now, do you recall saying that?

 

THE INTERPRETER: Yes.

MR TOAILOA: Okay. Now, do I take it that, when you said in that answer that the butt was shiny, did you mean it was silvery in colour?

 

THE INTERPRETER: No.

 

MR TOAILOA: But what was the shiny colour that you were referring to?

 

THE INTERPRETER: Sir, that - witness touching the arm of the stand - was the dominating colour, sir, on the body of the gun, or the barrel of the gun.

 

MR TOAILOA: Yes. But you said in your answer it is the butt which was shiny. That was what you said, was it not?

 

THE INTERPRETER: I cannot recall if I mentioned the butt in that answer, sir. All that I can recall was that - was saying it was shiny.

 

MR TOAILOA: Well, are you saying somebody had made a mistake and put the word "butt" in the record when you had not mentioned a butt of the gun?

 

THE INTERPRETER: I suppose so, sir. I said that it was silver in colour, sir. That was the colour of the gun.

 

MR TOAILOA: Who do you think made the mistake?

 

THE INTERPRETER: I don't know.

 

MR TOAILOA: Well, let me tell you that this record is a record translating into English what you told the Court in Samoan, and according to the record, you told the Court, in Samoan, that the butt of the gun was shiny.

 

THE INTERPRETER: My statement was that the gun was shiny. I did not mention a part.

 

MR TOAILOA: You did not mention a butt, is that what you are saying?

 

THE INTERPRETER: I cannot really recall that. It's been a while since I've seen my statement.

 

MR TOAILOA: I am merely referring to your oral testimony that was made in this Court, under oath, yesterday and, according to the record, that was what you said yesterday. Are you now saying that you did not say such a thing yesterday?

THE INTERPRETER: No, I did.

 

MR TOAILOA: So you did?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. So you agree that you told the Court yesterday the butt of the gun is shiny?

 

THE INTERPRETER: I said the gun, that was with me, was shiny.

 

MR TOAILOA: Yes, you said that, but you also went further and told the Court that the butt of the gun was shiny. Do you recall saying that?

 

THE INTERPRETER: No.

 

MR TOAILOA: Are you saying you did not say such a thing yesterday?

 

THE INTERPRETER: I'm trying to recollect, sir. All I said yesterday was the gun, that I had, was shiny. I did not say any other colour.

 

MR TOAILOA: Are you saying - well, of course you did not say any other colour, but are you saying you did not say, in evidence yesterday, that the butt of the gun was shiny?

 

THE INTERPRETER: From recollection, sir, that was all I said yesterday. I said that the colour was shiny, sir.

 

MR TOAILOA: Did you understand my last question to you?

 

 

[COUNSEL TO HIS HONOUR]

 

 

MR TOAILOA: Did you understand my last question that I asked you?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: What did I ask of you?

 

THE INTERPRETER: Well, you asked me if I did mention in my statement yesterday the colour of the gun.

 

MR TOAILOA: No, that was not what I asked you. I asked you whether you mentioned yesterday that the colour of the butt of the gun was shiny?

 

THE INTERPRETER: I can't recall. I only said in my statement, from recollection, that the colour of the gun was shiny. That was what I said.

 

 

[COUNSEL TO HIS HONOUR]

 

 

PLAYBACK [10.34am]

 

 

HIS HONOUR: Mr Toailoa, did you hear what was played back?

 

MR TOAILOA: Yes.

 

HIS HONOUR: Did the prosecution hear what was played back?

 

THE ATTORNEY-GENERAL: Yes, your Honour.

 

 

[HIS HONOUR TO COUNSEL]

 

 

MR TOAILOA: But shall we ask the witness whether he heard?

 

HIS HONOUR: Yes, certainly. But you do that as part of your cross-examination. Just ask him that.

 

MR TOAILOA: Well, save us having to replay again.

 

HIS HONOUR: Yes.

 

MR TOAILOA: Just in case.

 

Witness, did you hear your answer in Samoan that was just being replayed?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Are you able to tell the Court what you heard on that tape?

 

THE INTERPRETER: Sir, I said the colour of the gun was silver and then the butt - perhaps I've mixed up the barrel and the butt, sir, of the - - - 

 

MR TOAILOA: Well, I did not ask you to explain your answer. All I was asking you whether you were able to hear the words that we just heard on the tape? Well, perhaps to assist, your Honour, can I repeat the words to him in Samoan and see whether he agrees?

 

HIS HONOUR: Yes, certainly, but just take them very slowly, please.

 

MR TOAILOA: (Samoan Language)

 

Now let me translate it in English or, sorry, I would ask the Registrar, for the sake of the record and - - - 

 

MR EPATI: He was not listening.

 

HIS HONOUR: Well, you do it. You are offering, Mr Toailoa.

 

MR TOAILOA: Right, thank you. Now, Eneliko, I am to repeat to you the words which you said yesterday, which had just been played back in the tape, and those words were these, "Sir, just the colour, the butt as shiny." Now, do you confirm that those were the words which were just being replayed from the tape?

 

THE INTERPRETER: Yes, that was what I said yesterday but I mixed up the parts and the colours, sir.

 

MR TOAILOA: Well, should this be an opportune time to take the break, your Honour.

 

I will pursue the matter of the gun further with you, Eneliko, when we come back.

 

HIS HONOUR: Yes, we will have the morning break and, Mr Courts Officer, would you please take charge of the assessors, and the witness may go to the temporary witness room or wherever his escorts take him. Mr Registrar, would you please adjourn the Court for a few minutes for the morning break.

 

 

ASSESSORS RETIRED

 

 

SHORT ADJOURNMENT [10.40am]

 

 

RESUMED [10.58am]

 

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors? And if the witness could be returned to the witness-box.

 

 

ASSESSORS RETURNED

 

 

MR TOAILOA: Eneliko, I take it that you have accepted, after hearing the replay, that the words that I read out to you were in fact your oral testimony to this Court yesterday. Do you accept that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, you would also agree that, when you were describing the colour of the gun to this Court yesterday, it was before the gun was shown to you. Do you accept that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And that was when you described the gun as "silvery in colour". Do you accept that?

 

THE INTERPRETER: No.

 

MR TOAILOA: What don't you accept?

 

THE INTERPRETER: I accept that the gun is silver, sir. The handgun is silver.

 

MR TOAILOA: So are you now saying that you did not describe yesterday the butt as being shiny?

 

THE INTERPRETER: I cannot recall, sir, whether I said that statement or not.

 

MR TOAILOA: So even after the replay, are you still having problems recalling what you said?

 

THE INTERPRETER: Well, I don't want to admit to something that my mind has said it's not what I said.

 

MR TOAILOA: Now, when Madam Attorney-General asked you yesterday, "Apart from the colour, what else can you say about the gun?" did you understand that question?

 

THE INTERPRETER: I can recollect - from what I can recollect of my statement yesterday was that I said it was silver in colour and that it had rust on it.

 

MR TOAILOA: My question to you, Eneliko, is whether you understood the question that was put to you by Madam Attorney-General when she asked you, "Apart from the colour, what else can you say about the gun?"

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Would it be correct if I suggest to you that, what that question was asking of you, was for you to describe other features that you can remember concerning the gun?

 

THE INTERPRETER: Well, I've just been asked about this yesterday, and I described it yesterday when it was shown to me, and I said that was the gun, and I said that the top was silver, and the handle was black.

 

MR TOAILOA: When, yesterday, did you mention the word "black" as referring to the handle of the gun?

 

THE INTERPRETER: I cannot read the time, sir, but it was about this time yesterday.

 

MR TOAILOA: Well, what if I put it to you that you never mentioned the word "black" when you were describing this gun to the Court yesterday?

 

THE INTERPRETER: I'd agree to that. Those were what I said yesterday.

 

MR TOAILOA: So you would agree that the first time you mentioned the word "black", in reference to the colour of the gun, was this morning when you were replying to one of my questions?

 

THE INTERPRETER: I don't understand.

 

MR TOAILOA: What do you not understand?

 

THE INTERPRETER: About the arrangement of times, sir.

 

MR TOAILOA: Why do you not understand that?

 

THE INTERPRETER: Because my mind is on the sequence of events, whereas we are always going back, sir, and that makes me confused.

 

MR TOAILOA: Well, according to the record of yesterday's proceedings, Eneliko, you did not ever mention the word "black" when you were describing this handgun, is that not correct?

 

THE INTERPRETER: I don't know.

 

MR TOAILOA: Why do you not know?

 

THE INTERPRETER: My mind, sir, is confused, sir, by the numerous statements and suggestions, sir. I am trying to relate yesterday's statements, sir.

 

MR TOAILOA: Well, all we have been talking about this morning is the gun, this handgun. Now, you understand that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: I am asking you questions regarding your testimony yesterday concerning this small gun. Do you understand that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, is it not correct that it was only this morning in reply to one of my questions that you added the word "black" when you were referring to the gun?

 

THE INTERPRETER: I don't recall if I answered that or not.

 

MR TOAILOA: Well, I put it to you that you did. Now, is that not correct?

 

THE INTERPRETER: If you said I said yes, then I suppose I did say yes, and spoke about it.

 

MR TOAILOA: Now, what parts of this handgun were silvery in colour?

 

THE INTERPRETER: At the time I saw it, the top, the metal part, was silver in colour.

 

MR TOAILOA: What top metal part of the gun are you referring to?

 

THE INTERPRETER: The barrel of the gun.

 

MR TOAILOA: That was silver?

 

THE INTERPRETER: Yes, correct.

MR TOAILOA: What other parts of the gun were silver?

 

THE INTERPRETER: I don't know but the silver was mainly on the barrel of the gun as I had stated.

 

MR TOAILOA: What colour was the handle of the gun?

 

THE INTERPRETER: Black.

 

MR TOAILOA: And you have confirmed that because you have seen the gun yesterday, correct?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, could the witness be shown the handgun, please? P18, I think. Now, witness, remember you have already identified the arm of that microphone stand in front of you as being silvery in colour.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And you have now just told the Court that the barrel of the gun is silver. Now, can you point out, if the Registrar would mind holding the gun up, and let the witness point out the barrel of the gun that he was referring to when he was saying that that was the silvery part of the gun that he can recall?

 

THE INTERPRETER: This whole part, sir.

 

HIS HONOUR: Witness demonstrates the top portion of the gun and rubs his fingers along the top horizontal section of the gun if the gun were pointed horizontally.

 

MR TOAILOA: I wonder, your Honour, if, before I pursue my next question, if that part of the gun, please, could be shown again to the assessors?

 

HIS HONOUR: Yes, certainly.

 

MR TOAILOA: Could you slow down a bit, Registrar, and put it closer to the assessors so that they could have a closer look. Could you slow down, please. Now, could you also show the reverse side of the same barrel?

 

 

[GUN SHOWN TO THE ASSESSORS]

 

HIS HONOUR: Yes, Mr Toailoa.

 

MR TOAILOA: Thank you. Now, could you bring the gun back to the witness, please? Now, could you please place that barrel next to the arm of the microphone stand?

 

Now, forgetting about the black wire which runs on the silver arm, witness, could you have a look at those two objects, the gun and the silver arm, and do you agree that they do not look the same?

 

THE INTERPRETER: Correct.

 

MR TOAILOA: Yes, they are of different colours, you agree?

 

THE INTERPRETER: Now they have different colours.

 

MR TOAILOA: Now, could you put the barrel of the gun next to the black microphone, please, Mr Registrar. Please bear with me.

 

Now, witness, looking at the barrel of the gun and the black microphone which you had earlier identified, do you agree that they look like the same colour?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And they both look black, don't they?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Yet the gun that you saw was silver - the barrel was silver, do you agree?

 

THE INTERPRETER: I don't recall my statement, sir.

 

MR TOAILOA: Why suddenly you have forgotten your statement?

 

THE INTERPRETER: Well, I've forgotten about the statement that I made, whether I accede to that or reject that, sir.

 

MR TOAILOA: Okay. Now, do you have memory problems?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Does that happen very often to you?

 

THE INTERPRETER: Yes.

MR TOAILOA: I see. And right now, that is what is happening to you? You are forgetting things, is that what you are saying?

 

THE INTERPRETER: Forget things, but my mind is still going back to the beginning of this whole incident, sir.

 

MR TOAILOA: Okay, thank you, Registrar.

 

Now, we will move away now from the gun, Eneliko, and we will move to part of your evidence yesterday where you mentioned seeing a red Suzuki. Do you recall that part of your evidence?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: I know that my learned friend, Mr Aeau, had asked you questions pertaining to that, but I would also still like to pursue that further, so please bear with me. Now, do you confirm that you told yesterday in Court - or you confirmed yesterday in Court - that you had made three statements to the police.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And just so that you can recollect your memory, so that we do not have any memory lapses, the record shows that your first statement was made to the police on 26 July 1999. Do you confirm that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Your second statement, according to the record, was made on 4 August 1999.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And your third or your final statement was made on 1 February 2000?

 

THE INTERPRETER: Yes.

 

HIS HONOUR: One week ago?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So you now remember all those three occasions?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, remember that I have indicated that we will now be focussing on your evidence concerning a red Suzuki. Now, insofar as your first statement is concerned, that is the statement made on 26 July last year, am I correct that in that whole statement you made no mention to the police that you ever saw a red Suzuki at the vicinity or close by to Luagalau's residence?

 

THE INTERPRETER: Correct.

 

MR TOAILOA: Now, insofar as your second statement is concerned you did say something concerning a red Suzuki. Do you confirm that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And you confirm that this was what you said to the police - just bear with me while I find the reference in the English translation. It is on the second page, your Honour, of the English translation and it is the second small paragraph beginning with the words, "Ever since". I will read that part of your statement and then I will ask the Registrar to read it out to you, and it goes like this:

 

Ever since I had been dropped off at Leva's house, I did not see a car or a red Suzuki within this vicinity. Only Leva's car and the yellow bus I would see parked at his house at Ululoloa.

 

Now, do you confirm that that was your statement made to the police when you were interviewed the second time by the police?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. And in your oral testimony, and also your third statement, you told the Court that there was one day, one occasion, when you met a red Suzuki, do you recall that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So would you, therefore, agree that your oral testimony yesterday is entirely different from what you told the police on 4 August?

 

THE INTERPRETER: There are aspects where it differs, but that is my whole statement.

 

MR TOAILOA: Yes. Now, let me confine my question to the red Suzuki, Eneliko. Do you confirm that what you told the police on 4 August regarding a red Suzuki is entirely different from what you have told the Court in your oral testimony, as well as in your third statement?

THE INTERPRETER: In that third statement I did not mention the red Suzuki, sir, because it did not appear to me, but as it goes along, sir, I kept thinking about the matter, and the red Suzuki came to my mind.

 

HIS HONOUR: Witness, will you please answer counsel's question?

 

MR TOAILOA: Thank you, your Honour.

 

HIS HONOUR: Do you want it repeated?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay.

 

HIS HONOUR: Mr Toailoa.

 

MR TOAILOA: Now, witness, do you confirm now, after hearing what you told the police being read out to you, on 4 August - now, do you confirm that what you told the police on 4 August regarding a red Suzuki is entirely different from what you had told the Court yesterday in your oral testimony?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Thank you. Now, we will move on then to another topic. Now, do you recall telling yesterday that there was a time that you and Toi went into his vehicle for the purpose of showing you the Prime Minister's house?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: ...Now, do you recall saying yesterday, in your evidence-in-chief, that, when your vehicle had gone past the Prime Minister's house, it was you who then told Toi that you had passed the Prime Minister's house?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, let us go to your statement, your first statement, of 26 July. Okay. Now, the English reference is on page 2, and it is the first sentence at the top. For the Samoan it is on page 2, line 6 from the top. Now, I will read out what you told the police in that statement, and this is how it goes:

 

I left with Toi to Ululoloa to show me where the Prime Minister stayed. We turned into the road going inland, then we turned back, and I was surprised when he said to me that we had passed the Prime Minister's residence ...

 

 

[MR TOAILOA TO INTERPRETER]

 

 

MR TOAILOA: ...Now, you heard that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, do you confirm that, according to that statement, it was Toi who told you that you had passed the Prime Minister's house?

 

THE INTERPRETER: No.

 

MR TOAILOA: Why do you not confirm - sorry. Did you understand the statement that was read out to you?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: What did that statement say?

 

THE INTERPRETER: That we had passed the Prime Minister's residence when Toi said - - - 

 

MR TOAILOA: Okay, good. Now, that was what you told the police when you were first interviewed, is that not correct?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay, thank you. Now, let's go to your second statement, the one of 4 August.

 

 

[MR TOAILOA TO INTERPRETER]

 

 

MR TOAILOA: Now, what you told the police on 4 August is this, Eneliko, and I am going to read it out:

 

We turned into the road going inland, then we turned back and I was surprised when he said to me that we had passed the Prime Minister's residence.

 

Now, did you hear that?

THE INTERPRETER: Yes.

 

MR TOAILOA: Did you understand?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And it was, according to that statement, ....that it was Toi who told you that you had passed the Prime Minister's house.

 

THE INTERPRETER: No.

 

MR TOAILOA: Did you understand what the statement said?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: It said that it was Toi who told you, that's what the statement said, is it not?

 

THE INTERPRETER: No, I can recall it was me that said that.

 

MR TOAILOA: Well, I'm not asking you to explain, but I'm merely asking about what is contained in that statement. Do you confirm that, according to that statement, it was Toi who told you?

 

THE INTERPRETER: No.

 

MR TOAILOA: Are you saying that statement is wrong, or the police had mis-recorded that statement?

 

THE INTERPRETER: I do not know who is wrong, sir.

 

MR TOAILOA: Okay. Now, let me ask you another question. After hearing what has been read out from your second statement, do you agree that, what is recorded in your second statement, is exactly the same as what is recorded in your first statement to the police?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So the two statements say the same thing, that is statement one and statement two, except that they now differ with what you told the Court yesterday, isn't that correct?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: You accept now that that is the second difference that we have now identified between your oral evidence and what you have told the police? The first difference was the Suzuki. Now this is the second difference?

 

THE INTERPRETER: I don't know.

 

MR TOAILOA: Okay, never mind. Let us move on to another topic, Eneliko. Now, let us go to the beginning of your evidence yesterday. You were telling the Court of when Toi mentioned this job to you. Now, do you recall that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, you would recall that, according to your testimony yesterday, Toi only mentioned this job to you about two weeks after he had been picking you up and taking you around for rides?

 

 

[HIS HONOUR TO COUNSEL]

 

 

[THE QUESTION WAS REPHRASED]

 

 

MR TOAILOA: Do you recall, or do you accept, that, in your oral testimony yesterday, you told the Court that Toi only mentioned a job to you after about a week of Toi coming around and picking you up and taking you for a ride? [Should be translated, "according to your testimony yesterday", please.]

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Let us go to your first statement and see what you told the police regarding that aspect? It is the second paragraph on the English translation. This is what it says:

 

I recall at the end of April 1999 I returned from New Zealand. A week since arriving Toi came to my house, further inland from our village, and told me to come for a ride in his car. Toi had come in a green car. No one accompanied Toi, just himself. While coming with Toi that afternoon, I have forgotten the day, Toi was talking to me about a job. I had asked him what the job was. His reply was that he wanted to shoot the Prime Minister.

 

Now, did you understand that part of your statement that has just been read out to you?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, do you agree that, according to that statement, it was the very first day that Toi picked you up that he talked to you about the job?

 

THE INTERPRETER: I can't recall, sir.

 

MR TOAILOA: But the words that were read to you, do you accept that those were what you told the police when you were first interviewed?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, let's go to your second statement regarding that same topic. The English translation is the second paragraph. The Samoan version is also found in the second paragraph.

 

THE INTERPRETER: The second statement?

 

MR TOAILOA: Yes, statement of 4 August. Now, when you were interviewed on 4 August, Eneliko, by the police, this is what you said to the police regarding this aspect, and I quote:

 

I recall at the end of April 1999 I returned from New Zealand. A week since arriving, Toi came to my house, further inland of our village, and told me to come for a ride in his car. Toi had come in a green car. No one accompanied Toi, just himself. While coming with Toi that afternoon, I had forgotten the day, Toi was talking to me about a job. I had asked him what the job was. His reply was that he wanted to shoot the Prime Minister.

 

Read on. Right, thank you. Now, did you hear those words that have just been read out?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And do you confirm that those were, again, the words you told the police when you were interviewed the second time?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And do you confirm that, what you said to the police in that second interview, is exactly the same as what you told them during the first interview?

 

THE INTERPRETER: I suppose they are the same, sir.

MR TOAILOA: Right. And do you now agree that what is in those two statements differs from what you have told the Court in your oral testimony?

 

THE INTERPRETER: I don't understand.

 

MR TOAILOA: Okay. Now, according to those two statements which had been read out to you, it - - - 

 

HIS HONOUR: No, they are statements to the police.

 

MR TOAILOA: Yes, to the police. It was on the very first day that Toi had picked you up that he talked to you about this job. Now, do you understand that part?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, according to your oral testimony, which you gave the Court yesterday, it was after a week of Toi coming around and picking you up and taking you for a ride that he then only mentioned a job to you. Now, do you understand that part of your oral testimony yesterday?

 

THE INTERPRETER: Not very well, sir, because Toi did not call in once, but on numerous occasions, and I'm trying to recollect the several visits that he made, and the sequence of events.

 

MR TOAILOA: Well, do you understand or did you understand what you told the Court yesterday regarding this aspect?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Do you understand that yesterday you told the Court that it was after a week of Toi coming around and picking you up and taking you for a ride that he then mentioned to you a job to be done?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Do you, therefore, not agree that there is a difference between what you told the Court yesterday and what you told the police in the two statements that had been read out to you?

 

THE INTERPRETER: The reason why I do not agree with that was because there was not just one visit and not just one week, sir.

 

HIS HONOUR: Witness, will you answer the question asked of you by counsel?

 

THE INTERPRETER: Yes.

 

HIS HONOUR: Please repeat it, Mr Toailoa.

 

MR TOAILOA: Right, thank you.

 

Witness, you have been referred to your two statements to the police and in both of those two statements you told the police that it was on the very first day that Toi had picked you up that he talked to you about a job. Now, do you understand that part, so far.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, according to your oral testimony yesterday, it was not until after a week of Toi coming around and picking you up and taking you for a ride that he then mentioned a job to you? Now, do you understand that aspect?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, my question therefore is this: do you not agree that there is now a difference - - - 

 

HIS HONOUR: Put it in the positive, Mr Toailoa.

 

MR TOAILOA: Would you agree that there is a difference between what you told the police and what you have told the Court in your oral testimony yesterday?

 

THE INTERPRETER: No.

 

HIS HONOUR: We will pursue that further after lunch, Mr Toailoa.

 

MR TOAILOA: Yes, your Honour. I will, thank you.

 

HIS HONOUR: I propose to break off for the luncheon adjournment and, Mr Courts Officer, would you take charge of the assessors, please. The witness may leave the witness-box and go with the police, but remember the advice about not discussing your evidence with anyone. You will need to be back here at 2 o'clock. The Court will now adjourn until 2 o'clock this afternoon.

 

 

LUNCHEON ADJOURNMENT [12.01pm]

 

 

RESUMED [2.00pm]

 

 

<ENELIKO VISESIO

 

<CROSS-EXAMINATION BY MR TOAILOA CONTINUING

 

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors, and if the witness could be brought back, please. Yes, Mr Toailoa.

 

MR TOAILOA: Now, Eneliko, just before the lunch break, I was concluding my questions to you regarding when Toi had mentioned the job to be done to you?

 

 

[HIS HONOUR TO ALL PRESENT IN COURT

REGARDING A MOBILE PHONE THAT WAS

HEARD TO RING]

 

 

 

HIS HONOUR: Just excuse me, please. I do not know where that mobile phone emanated from, but, if there is repetition of mobile phones going off during this trial, certain consequences may flow, and, if it comes from the press team, I will very much regret having to ban mobile phones being brought into this building by members of the press. If, of course, it is any member of the public, mobile phones are banned from this auditorium, this courtroom, and, in the interests of the smooth running of this trial, steps will necessarily have to be taken if there is any further repetition of an interruption caused by a mobile phone ringing.

 

MR TOAILOA: The last question I asked you was whether you agree that there is an apparent difference between what you said to the police in your two statements and what you had said to this Court in your oral testimony?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, you have just then, by agreeing, just rectified what I was about to embark on, because, just prior to the break, you said, no, that there was no difference. So I will not pursue that any further.

 

Now, let us move on to another topic. Now, I would like to ask you questions now relating to when you said you received the first gun from Toi. Now, I stand to be challenged by learned counsel for the prosecution, but my recollection of your evidence-in-chief to the Court, regarding that aspect, was that it was about two weeks after - one or two weeks after Toi had first visited you that you were handed the first gun at Vaimoso? Now, do you confirm that or not? Do you confirm that that was your evidence-in-chief yesterday regarding that aspect?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, let us go then to your first statement to the police and see what you told the police regarding that aspect ... Eneliko, when you were interviewed on 26 July...

 

...One other evening I do not recall, Toi came again to my house at Saina. Toi told me that he had come with the gun and the cash.

 

Now, did you hear that part of your statement that has just been read out?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, did you understand it?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, do you confirm that that was what you told the police on that day when you were first interviewed?

 

THE INTERPRETER: I do not really understand it, sir. It's been a while, sir, and I have just forgotten it, sir.

 

MR TOAILOA: But having heard the words being read out by the Registrar, do you confirm that it was at Saina, at your home at Saina, where you say the first gun was handed to you? Do you agree with that?

 

THE INTERPRETER: I've forgotten it, sir, but my evidence was the gun was given at Vaimoso.

 

MR TOAILOA: Yes, but listen to the words that were read out. Those words mentioned that Toi came to your home at Saina, do they not?

 

THE INTERPRETER: That was the time of the giving of that statement. I was a bit rushed in giving that statement without clearly recollecting what happened.

 

MR TOAILOA: Okay, fair enough. Now, do you agree that there are two aspects of that part of your statement, two significant aspects, which are mentioned? Firstly, Toi came in the evening and, secondly, he came to your home at Saina? Now, you heard those?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, let us go to your second statement, which was made to the police on 4 August, and let us see what you told the police then, regarding this same matter. Now, the English reference is page 1, first sentence of the last paragraph. The Samoan reference is page 1, first sentence of the fifth paragraph. Eneliko, this is what you said to the police, on the second occasion you were interviewed by the police, and I quote:

 

The next morning Toi came over to my house, by himself, handed to me a gun and then he left.

 

Now, did you hear that statement?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Did you understand what it says?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, did you hear that it was referring to a morning, rather than evening?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And did you also hear that it also referred to Toi coming over to your house at Saina? Did you hear that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So you would agree that, when you compare your first statement and your second statement, the first statement and the second statement agree on one thing, that is, you told the police that Toi came to your house at Saina?

 

THE INTERPRETER: I agree because he did not come once, and that was why I said that.

 

MR TOAILOA: Never mind how many times he came. Now, the thing, or the aspect in the two statements which do not agree, is that in your first statement you said that Toi came in the evening to give you the first gun, whereas in your second statement you have told the Court, you have heard the statement being read, you told the police that Toi came in the morning with the first gun.

 

 

[DIALOGUE BETWEEN COUNSEL AND HIS HONOUR]

 

 

 

MR TOAILOA: Now, what is your answer to my question?

 

THE INTERPRETER: I have forgotten it.

 

MR TOAILOA: Now, do you agree in one thing, and that is, according to the two statements, Toi came to Saina?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: But in your evidence-in-chief you told the Court that the first gun was given to you at Vaimoso?

 

THE INTERPRETER: That is correct.

 

MR TOAILOA: So do you now accept that there is a difference between what is said in the two statements to the police and what you have told this Court in your oral testimony?

 

THE INTERPRETER: No.

 

MR TOAILOA: You cannot see the difference?

 

THE INTERPRETER: No.

 

MR TOAILOA: Why not?

 

THE INTERPRETER: Well, thinking about it, I've sort of mixed the dates and I - because he did not come in once or twice, it was several days.

 

MR TOAILOA: Let me assist you. According to your two statements, which were read to you, Toi came to Saina when he came to give you the first gun. That is what both statements said, first and second statement. Do you understand that?

 

THE INTERPRETER: I'm thinking about it, sir.

 

MR TOAILOA: I am not asking you to think about it; I am asking you to listen to what is being read to you, and whether you understand what is being read to you. Did you understand the parts of your two statements that were read out to you?

 

THE INTERPRETER: Only while it was being read to me, sir.

 

MR TOAILOA: So what is your answer? Did you understand, or did you not understand?

 

THE INTERPRETER: I understand it, sir.

 

MR TOAILOA: So did you understand that both statements which were read out to you said that Toi came to Saina when he gave you the first gun?

 

THE INTERPRETER: He came with the gun. He came with the second gun.

 

MR TOAILOA: Could you answer my question, please?

 

THE INTERPRETER: I don't know the question, sir.

 

MR TOAILOA: Well, I think it would assist matters if you could indicate that you do not understand the question, because the way I am seeing how you are responding, it seems to me you are trying to evade my questions. And, it seems to me, that when you think you are getting caught - - - 

 

 

[COUNSEL TO HIS HONOUR]

 

 

MR TOAILOA: Now, what didn't you understand about the question that I asked you to answer?

 

THE INTERPRETER: The coming of Toi to my house.

 

MR TOAILOA: What did I ask you?

 

THE INTERPRETER: That Toi came there with the gun.

 

MR TOAILOA: Was that all I asked you?

 

THE INTERPRETER: Those are the only things that I can recall, sir.

 

MR TOAILOA: Now, you remember, a few minutes ago, you were referred to parts of your statement, two statements to the police. Do you remember that, or is that too far gone?

 

THE INTERPRETER: I can recall it. I can recall it being read to me, sir.

 

MR TOAILOA: And can you recall what was read to you?

 

THE INTERPRETER: The matters under discussion, sir.

 

MR TOAILOA: Can you tell the Court what you heard being read to you regarding the matter now under discussion? What you heard?

 

THE INTERPRETER: Matters concerning the incident, sir, and the sequence of events.

 

MR TOAILOA: Was that read out?

 

THE INTERPRETER: No.

 

MR TOAILOA: Well, I am asking you about the matters which were read out to you not more than five minutes ago. Do you recall those parts of your statement that were read out?

 

THE INTERPRETER: Yes.

 

 

[HIS HONOUR TO COUNSEL]

 

 

MR TOAILOA: Now, Eneliko, not very long ago, part of your statement, which was made on 26 July to the police, was read out to you and that part of the statement said that Toi came to your home at Saina with a gun. Now, can you recall hearing that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And, also, a similar statement was read out from the second statement which you gave to the police. It was also mentioned, in that second statement, that Toi came to Saina with the first gun. Now, did you understand that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. So you have told the Court, in your evidence-in-chief yesterday, that the first gun was handed to you at Vaimoso. Do you recall saying that yesterday?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, would you agree, or would you not agree that, if one - - - 

 

HIS HONOUR: Just one, please. "Would you agree".

 

MR TOAILOA: Would you agree that, if we compare your two statements to the police and your oral testimony to the Court, one would find that there is a difference, and the difference is that what you told the police was that the gun was handed to you at Saina, at your home; whereas, what you have told the Court in your evidence-in-chief, is that the gun was handed to you at Vaimoso.

 

THE INTERPRETER: So do you agree there is a difference?

 

THE INTERPRETER: Yes, there is.

 

MR TOAILOA: Okay, good.

 

Now, let's move on to the next topic. Now, do you recall that, in your evidence-in-chief yesterday, you told the Court that, when the question of a gun to be used was first raised by you with Toi, Toi said in reply that he would go to Leafa to obtain a gun. Do you recall that part of your evidence?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, am I correct that, when you were first interviewed by the police on 26 July last year, you never mentioned to the police such a statement?

 

THE INTERPRETER: I can't recall it, sir.

 

MR TOAILOA: Now, do you wish to view your statement and see whether you did or you did not?

 

THE INTERPRETER: What?

 

MR TOAILOA: What what?

 

 

[HIS HONOUR TO COUNSEL]

 

 

MR TOAILOA: Do you understand the question?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Could you please answer the question?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, would you also agree that in your second statement to the police you also made no mention of such a statement?

 

THE INTERPRETER: I don't recall it, sir. I did make a statement to the police, but I cannot recall if I talked about that.

 

MR TOAILOA: Now, would you accept, if I tell you, that I have read your statement and there is nothing like that in your second statement? Would you accept that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So I am telling you that there is no such statement in your second statement. Now, is it not correct that the first time you have mentioned such a matter to the police was in your statement which was taken Tuesday last week?

 

THE INTERPRETER: I thought they had recorded that in my statement, sir. The statement that I made on Tuesday.

 

MR TOAILOA: Well, that is what I am saying. I am saying that the first time such a matter was mentioned by you was when you were interviewed on 1 February? Isn't that correct?

 

THE INTERPRETER: Well, that was my statement to the police.

 

MR TOAILOA: I know that is your statement to the police, but do you agree that that was the first time ever that you have mentioned such a matter to the police? Now, what is so difficult to understand with that simple question?

 

THE INTERPRETER: I thought they are mentioned or they were mentioned in my previous statements. But those are the real things that I have related, sir.

 

MR TOAILOA: Why did you think that this aspect was mentioned in your previous statement?

 

THE INTERPRETER: I don't know.

 

MR TOAILOA: You are just making it up, aren't you?

 

HIS HONOUR: Making what up, Mr Toailoa?

 

MR TOAILOA: Thinking that it was included in his previous statement. You are just making that up as an excuse, aren't you?

 

THE INTERPRETER: No.

 

 

[COUNSEL TO HIS HONOUR]

 

 

HIS HONOUR: So you proceed.

 

MR TOAILOA: Thank you. Now, Eneliko, why do you say that you thought this aspect that I have now raised with you was included in your previous statements to the police?

 

THE INTERPRETER: Sir, because I'm recollecting some of the things. The others I can't.

 

MR TOAILOA: Well, when was the first time you recollected this aspect that I am now questioning you on?

 

THE INTERPRETER: Now, sir, when I appear and stand before the Court.

 

MR TOAILOA: My question is, when was the first time that you ever recalled such an aspect which you had mentioned in your statement made on 1 February?

 

 

[HIS HONOUR TO COUNSEL]

 

 

THE INTERPRETER: While I was in New Zealand, sir. I thought about it and was able to recollect.

 

MR TOAILOA: When you were in New Zealand, when? In February of last year?

THE INTERPRETER: Yes.

 

MR TOAILOA: Right. So in February of last year you thought about these things?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Good. Now, let us move on to the next subject. You recall - - - 

 

 

[HIS HONOUR TO COUNSEL]

 

 

MR TOAILOA: Now, I have now finished asking you about reference to obtaining a gun from Leafa. Now I would now like to ask you about another aspect of your testimony yesterday where you mentioned to the Court that, when Toi uplifted the first gun, he mentioned to you that he will return that gun to Leafa. Now, do you recall that part of your evidence-in-chief yesterday?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, would you agree, if I say to you that, having gone through your first statement to the police, there is no mention of such an aspect in your first statement?

 

THE INTERPRETER: Perhaps I forgot that one, sir.

 

MR TOAILOA: Yes, but I am not asking you about "perhaps". I am asking you whether you would accept what I am telling you, that I have gone through your statement, and there is nothing in your first statement regarding that?

 

THE INTERPRETER: No, I disagree.

 

MR TOAILOA: You disagree with what?

 

THE INTERPRETER: I can't recall it. It's a long while ago, sir.

 

MR TOAILOA: You cannot recall whether what?

 

THE INTERPRETER: No.

 

MR TOAILOA: No. What do you mean "no"?

 

THE INTERPRETER: No.

 

MR TOAILOA: No, you cannot recall, or no, you did not say such a thing to the police?

 

THE INTERPRETER: No, I did not make a statement.

 

MR TOAILOA: Okay. So you agree with me? You agree with me that you did not make such a statement to the police when you first interviewed, is that so?

 

THE INTERPRETER: I can't recall.

 

MR TOAILOA: Do you wish for your memory to be refreshed?

 

THE INTERPRETER: I suppose, sir, but I've forgotten them.

 

 

[DIALOGUE BETWEEN HIS HONOUR AND COUNSEL]

 

 

HIS HONOUR: Eneliko, in a moment the Court is going to adjourn for the afternoon break. During the afternoon break, the Registrar will read to you the statements that you made, described as the first statement in July last year, and the second statement dated August last year. After the break, you will be asked some further questions by Mr Toailoa. Except to the extent that you are talking to the Registrar, you should not discuss your evidence with anybody during this break. Do you understand what I have been saying to you?

 

THE INTERPRETER: Yes.

 

HIS HONOUR: Gentlemen assessors, as you have heard, we are going to take the afternoon break. Constable, take charge of the assessors. Mr Registrar, if you would adjourn the Court for the afternoon break.

 

 

SHORT ADJOURNMENT [2.57pm]

 

 

RESUMED [3.27pm]

 

 

HIS HONOUR: Mr Courts Officer, would you bring in the assessors, and if the witness could be returned to the witness-box. Yes, Mr Toailoa.

 

MR TOAILOA: Eneliko, have you now had the opportunity to listen and have the two statements read back to you?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And is your memory now refreshed?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, insofar as your first statement is concerned, do you agree with me that there is no mention in that statement of Toi saying to you that he will take the first gun back to Leafa?

 

THE INTERPRETER: Perhaps I forgot that, sir.

 

MR TOAILOA: What have you forgotten? Have you forgotten what was just being read to you during the break?

 

THE INTERPRETER: The time the gun was taken. To me it was a week and then the gun was returned.

 

MR TOAILOA: Eneliko, you are not answering my question, so I will assume that you didn't understand my question and I will re-put the question to you. Now, you have just indicated to the Court that you have now had an opportunity to hear your first statement being read back to you.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, listen carefully to the question. Do you agree that, in that statement that was read out to you, there is nothing in there which says that Toi told you that he will return the first gun to Leafa?

 

THE INTERPRETER: Perhaps I forgot that.

 

MR TOAILOA: Did you understand my question?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: What was my question?

 

THE INTERPRETER: The time, what time did I return the gun.

 

MR TOAILOA: Well, that was not my question. You have told the Court that you had an opportunity to listen to your first statement being read back to you. Now, is there anything in that statement, which was read back to you, which says that Toi told you that he will return the first gun to Leafa?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Are you sure of that?

 

THE INTERPRETER: I think it is in there.

 

MR TOAILOA: No, he did not say he thinks, he says it is in there. Well, could you show us in your statement where that is?

 

HIS HONOUR: I am not sure that that is going to be productive in the circumstances, Mr Toailoa.

 

MR TOAILOA: Do I understand that you cannot read, Eneliko?

 

THE INTERPRETER: Correct.

 

MR TOAILOA: But you can write?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So you can write, but you cannot read, is that what you say?

 

THE INTERPRETER: Yes.

 

 

[HIS HONOUR TO COUNSEL]

 

 

MR TOAILOA: Now, do you wish your statement to be re-read back to you, and then tell us where, in that statement, such a matter is mentioned?

 

THE INTERPRETER: No.

 

MR TOAILOA: No, you do not want your statement to be re-read back to you?

 

THE INTERPRETER: Correct.

 

MR TOAILOA: Then on what basis do you say that this aspect is included in your first statement?

 

THE INTERPRETER: The statements that were read to me at the back there, sir, are - I'm trying to recall, sir.

 

MR TOAILOA: And what can you recall?

 

THE INTERPRETER: I remember the gun.

 

MR TOAILOA: Well, I put it to you, Eneliko, that there is no such mention of Toi having said that to you in your first statement.

 

THE INTERPRETER: Yes. Yes.

 

MR TOAILOA: So you accept that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, did you also have an opportunity to listen to your second statement being read out to you?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And I also put it to you that, in that second statement, there is also no mention in that statement of Toi having said to you that he will return the first gun to Leafa.

 

THE INTERPRETER: No.

 

MR TOAILOA: Why not?

 

THE INTERPRETER: I cannot recall that time and if I've talked about it or not.

 

MR TOAILOA: Well, I am asking you about what was re-read to you during the break. Did you understand that?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Did you hear a second statement being read out to you by the Registrar?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Did you understand that that statement that was read out to you by the Registrar was the second statement made by you to the police?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: And did you find anything that was read back to you from that statement which said that Toi told you that he will return the first gun to Leafa?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Are you sure of that?

 

THE INTERPRETER: Sir, I can recall it was mentioned today, but I cannot recall if I talked about it before or not.

 

MR TOAILOA: Well, I put it to you that I have gone through your second statement and there is nothing in there where you had mentioned to the police that Toi had told you that he will return the first gun to Leafa? Do you accept that?

 

THE INTERPRETER: I do not know that thing.

 

HIS HONOUR: Witness, is it true that there is no mention in that second statement of what Mr Toailoa was putting to you?

 

THE INTERPRETER: Correct.

 

HIS HONOUR: You proceed, Mr Toailoa.

 

MR TOAILOA: Thank you, your Honour.

 

Then why was it difficult for you to give me a straight answer when I asked you the question?

 

THE INTERPRETER: Sir, my mind is not really focussed, sir, and I've forgotten, sir, some of the things and numerous questions.

 

MR TOAILOA: Eneliko, could you please assist me by indicating that you do not understand a question before you answer it so that I could repeat that question.

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Okay. Now, still on that aspect, is it not correct that the first time there was any mention of that by you to the police, was when you gave them your third statement last week?

 

THE INTERPRETER: Yes.

MR TOAILOA: Okay. Now, when was the first time you ever remembered that?

 

THE INTERPRETER: When I returned, sir.

 

MR TOAILOA: So, when was that?

 

THE INTERPRETER: Last week, sir.

 

MR TOAILOA: Can you recall when of last week you came?

 

THE INTERPRETER: I can't recall it, sir.

 

MR TOAILOA: Was that when you came to this Court, was it?

 

THE INTERPRETER: No, sir. At the beginning, at where I was staying, sir.

 

MR TOAILOA: I am getting confused. Can you explain what you mean?

 

HIS HONOUR: First of all, witness, you said a moment ago, "when I returned". Returned from where to where?

 

THE INTERPRETER: From New Zealand to Samoa, sir.

 

MR TOAILOA: And when did you return?

 

HIS HONOUR: I hope that may assist, Mr Toailoa?

 

MR TOAILOA: Yes, thank you, your Honour. And when did you return from New Zealand?

 

THE INTERPRETER: Sunday.

 

MR TOAILOA: Was it Sunday of last week?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: So, did you go back to New Zealand a second time, after you returned from New Zealand in February of last year?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: When did you go back to New Zealand?

 

THE INTERPRETER: Last year, sir.

MR TOAILOA: Yes, when? Can you recall when last year?

 

THE INTERPRETER: About August.

 

MR TOAILOA: Did you go for a holiday, or what?

 

 

[COUNSEL TO HIS HONOUR]

 

 

HIS HONOUR: What was your question? Could you repeat it?

 

MR TOAILOA: Did you go for a holiday?

 

THE INTERPRETER: No.

 

MR TOAILOA: Why did you go?

 

THE INTERPRETER: Because of this incident.

 

MR TOAILOA: What incident?

 

THE INTERPRETER: The incident that caused the death of Luagalau.

 

MR TOAILOA: What did that incident have to do with your trip to New Zealand?

 

THE INTERPRETER: I don't understand it.

 

MR TOAILOA: Do you want me to restate the question?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Was there any reason why you had to go to New Zealand after the death of Luagalau?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: What was that reason?

 

THE INTERPRETER: Protection, sir. To protect me.

 

MR TOAILOA: Who paid for your fare?

 

THE INTERPRETER: Police.

 

MR TOAILOA: What else did they pay for you?

 

THE INTERPRETER: Just the fare.

 

MR TOAILOA: And who looked after you when you were in New Zealand?

 

THE INTERPRETER: I received money from police here to maintain.

 

MR TOAILOA: And is that money given to you by the police sufficient to provide you with food on a daily basis, as well as clothing and all your other needs?

 

THE INTERPRETER: Well, I was able to budget.

 

MR TOAILOA: Are you able to tell us how much money you were paid by the police when you were there?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: How much?

 

THE INTERPRETER: 2300. Other money was 900. Other money, 700.

 

MR TOAILOA: Yes, any more?

 

THE INTERPRETER: No.

 

MR TOAILOA: Now, are those amounts, the amounts that you mentioned, are those in New Zealand currency or in our currency?

 

THE INTERPRETER: New Zealand currency, sir.

 

MR TOAILOA: So those were paid to you during the duration of your stay in New Zealand, is that so?

 

THE INTERPRETER: Moneys that I requested, sir, I applied for.

 

MR TOAILOA: Now, according to my addition, the total amount would come to 3,900 New Zealand dollars. Now, would you agree that that is quite a substantial sum of money?

 

THE INTERPRETER: Yes.

 

 

[HIS HONOUR TO COUNSEL]

 

 

MR TOAILOA: Now, the suit that you are wearing, did you buy that in New Zealand?

 

THE INTERPRETER: No.

 

MR TOAILOA: It is a very nice suit! I could not resist asking, your Honour, that was the reason why!

 

HIS HONOUR: I think that can be noted as just a comment in good humour by cross-examining counsel. Gentlemen assessors, I regard that remark of Mr Toailoa's as something said in jest. You proceed with your cross-examination.

 

MR TOAILOA: Yes, your Honour.

 

Now, whose prompting resulted in you being taken to New Zealand? Was it on your prompting, or was it a suggestion from the police?

 

THE INTERPRETER: It was me, sir,

 

MR TOAILOA: So you approached the police and requested protection, is that it?

 

THE INTERPRETER: Yes.

 

MR TOAILOA: Now, apart from you being taken to New Zealand and being paid 3,900 New Zealand dollars, what other benefits were you given, or offered, by the police?

 

THE INTERPRETER: No.

 

MR TOAILOA: You say, no, there were no other benefits, ap