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IN THE SUPREME COURT

OF SAMOA

 

MR JUSTICE WILSON

AND A PANEL OF FIVE ASSESSORS

POLICE

and

LEAFA VITALE

of MALIE and VAOVAI FALEALILI

and

TOI AUKUSO CAIN

of VAIMOSO and TUANAIMATO

9.39 AM, THURSDAY, 9 MARCH 2000

APIA

MR RAFTERY: When Inspector Rimoni gave evidence, he had not remembered what had happened to it at the end after he had it. Did you receive that casing from Inspector Rimoni at some stage over that weekend?

THE INTERPRETER: Yes.

HIS HONOUR: I think, witness, it is Chief Inspector Rimoni; is that not right?

MR RAFTERY: Was that same item from the rear of the hall at Alafua handed to Dr Buckleton on the Monday, 19 July?

THE INTERPRETER: That is correct.

MR RAFTERY: There is just another matter I would like your help about. You have told us on an earlier occasion about a search of the office of the Minister, the accused Leafa. You have produced earlier in evidence a document, a letter, to the Prime Minister from the deceased. Did you, in your search of the office, find any other document relating to that exhibit that appeared to be from the Prime Minister to the accused Toi?

THE INTERPRETER: Yes.

MR RAFTERY: Do you have that document with you?

THE INTERPRETER: No.

MR RAFTERY: Is that here in Court; is that right? Can you fetch that for us? If you just tell me where it is and we will fetch it for you. Is this the original that has been placed on my desk?

THE INTERPRETER: I have a copy, sir, but that is the original I gave you.

MR RAFTERY: I am sorry, I had not realised that was the original that was placed on my desk. Can I just hand that to the Registrar.

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: Is that the document that you found in the accused Leafa's office?

THE INTERPRETER: Yes.

MR RAFTERY: If I could just ask that you be shown exhibit P17, that is the letter that I have referred to, a letter dated 19 May of last year, your Honour, from the deceased to the Prime Minister. Just looking at this letter of 19 May, was the document that you are now referring to dated 24 May 1999?

THE INTERPRETER: Sir, the two letters were in one file, but in different sections of the file, sir.

MR RAFTERY: Right. Then, your Honour, I would seek to tender the letter of 24 May as an exhibit. I do not know whether your Honour would - when your Honour has the opportunity of seeing it, your Honour may see it relates - it would appear to relate to P17. Whether it should be made P17A, or I am quite happy for it to be made the next sequential number.

HIS HONOUR: Just let me look at it.

MR RAFTERY: Certainly, your Honour. I have got the English translation for your Honour here, so if I can just - - - 

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

MR RAFTERY: Your Honour, if my friends do not have theirs to hand, under their QA or QB reference, I have got copies they can have.

HIS HONOUR: First of all, is there any objection to the tender of this document?

MR TOAILOA: No, your Honour.

MR EPATI: No, your Honour.

HIS HONOUR: Well, I think it should be marked P17B, and we will mark what was originally P17 as P17A.

 

EXHIBIT #P17B LETTER DATED 25 MAY

 

HIS HONOUR: Have the assessors got their copies now of the new document?

THE INTERPRETER: I have them, sir.

HIS HONOUR: Gentlemen, if you would mark the document that you are now being handed "Copy of exhibit P17B". When you find, amongst your papers, exhibit P17, mark that "P17A". And, Mr Raftery, do you recommend that the letter be read to the assessors; or is that something they can do, perhaps, during the morning break?

MR RAFTERY: I was thinking that was something they could do for themselves, I was not proposing to read it into the transcript or anything at this stage, your Honour, unless your Honour felt that it was appropriate, or my friend would like me to.

HIS HONOUR: Yes. Well, do either defence counsel ask that the letter be read out aloud to the assessors now?

MR EPATI: No, sir.

MR TOAILOA: No, your Honour.

HIS HONOUR: Very well. Gentlemen assessors, perhaps you could put what are now exhibit P17A and P17B together, and if you would perhaps read those letters; during the morning break would be a good time. Yes, Mr Raftery.

MR RAFTERY: Just while attending to documentary matters; you also told us, I think, Inspector, that you had produced on an earlier occasion three booklets of what looked like withdrawal slip booklets, with reconciliation sheets on them, which were produced as P13, P14 and P15.

THE INTERPRETER: Correct.

MR RAFTERY: I would just like you to look at this bundle I am just going to give you. Just give it to the witness first. That now in front of you, I think, is that a photocopy of parts of the booklet P14?

THE INTERPRETER: Yes.

MR RAFTERY: Your Honour, I just did it in that way so that before we now actually provide copies, I can just say this to assist your Honour and the assessors, that this document was not provided - this was just an oversight on our part - when we went through the banking material with the witness Upu; and the assessors will have copies of their exhibit P37A to W, and they did not get photocopies of the corresponding pages from the reconciliation sheets in the exhibit P14. That is the purpose of now producing them, so that it can be put by the assessors with their documents P37A to W, because they correspond with each other, and there is a copy, again, for your Honour, just to be sure that your Honour has got the document as well.

HIS HONOUR: These documents, if we follow the previous practice, should be marked "Copy of part of exhibit P14".

MR RAFTERY: That is correct, your Honour, yes.

HIS HONOUR: And there is a bundle of five documents?

MR RAFTERY: There are five sheets all stapled together in the same bundle.

HIS HONOUR: Yes. Gentlemen, this bundle of documents is to be attached to and go under the same glider clip as exhibit P37. If you would mark in the top right-hand corner of the top copy "Copy of part of exhibit P14". Is there a copy for me?

MR RAFTERY: Has the Registrar taken the original of P17B, which is the letter of 24 May? Your Honour, I think the witness still has the original of P17B.

HIS HONOUR: Yes.

MR RAFTERY: Maybe that should be taken and marked by the Registrar.

HIS HONOUR: Thank you. It will be.

MR RAFTERY: Just one final topic, Inspector. We have heard earlier from Superintendent Salapo Matamu that he went with a number of other officers to the premises of the accused Toi on the morning of 3 August of last year and the purpose of having a number of officers was that searches were to be carried out at the premises of the accused at both Vaimoso and I think Tuanaimato. Is that correct?

THE INTERPRETER: Correct, sir.

MR RAFTERY: Were you present, in your capacity of officer in charge of exhibits, at the searches of either of those two premises?

THE INTERPRETER: Yes.

MR RAFTERY: I am not seeking to produce any exhibits at this stage, your Honour, but can you just assist us whether at either address was any 303 ammunition found?

THE INTERPRETER: Yes.

MR RAFTERY: Again, just really for the assistance of my friends, this was recorded under police references 921 and 922; is that correct?

THE INTERPRETER: Yes.

MR RAFTERY: Under the reference 921, is it 303 shells and under 922, one 38 casing and two 303 casings; is that correct?

THE INTERPRETER: Correct.

MR RAFTERY: Have the police still retained those exhibits should my learned friends want to see them or want them produced at any stage?

THE INTERPRETER: Yes.

MR RAFTERY: Thank you very much, Inspector. Just wait there.

HIS HONOUR: Any cross-examination, Mr Toailoa?

 

<FURTHER CROSS-EXAMINATION BY MR TOAILOA [10.12am]

 

MR TOAILOA: Inspector, you have told the Court this morning that you did receive this empty shell from Chief Inspector Rimoni; do you recall saying that this morning?

THE INTERPRETER: Yes.

MR TOAILOA: Are you quite definite about that?

THE INTERPRETER: Yes.

MR TOAILOA: What if I put it to you that that is not correct?

THE INTERPRETER: Wrong.

MR TOAILOA: So, even if I am referring to your report of 19 July?

THE INTERPRETER: Correct.

MR TOAILOA: This is what your report of 19 July contains, and your report is addressed to "The Officer in Charge - Operation Lupelele"?

HIS HONOUR: I think it should be in the form of a question: Do you agree that - - - 

MR TOAILOA: Do you agree that on 19 July you did prepare a report to the officer in charge of Operation Lupelele?

THE INTERPRETER: Yes.

MR TOAILOA: This is three days after the murder, do you agree?

THE INTERPRETER: What date, sir, are you referring to?

MR TOAILOA: I have already said 19 July 1999.

THE INTERPRETER: Yes.

MR TOAILOA: Do you agree that what is now being referred to as "exhibit P6", was initially referred to as "Police Exhibit 10"?

THE INTERPRETER: Yes.

MR TOAILOA: Do I understand that it was you who assigned that number 10 to it?

THE INTERPRETER: Yes.

 

[HIS HONOUR TO COUNSEL]

 

MR TOAILOA: Now, could you please first have a look at this document, because it is this document that I am looking at, whether you can confirm that this is a copy of your report?

THE INTERPRETER: Yes.

MR TOAILOA: Could I have it back then, please? So the signature in the report is yours?

THE INTERPRETER: Yes.

MR TOAILOA: And you confirm that that is your report of 19 July?

THE INTERPRETER: Yes.

MR TOAILOA: Addressed to the officer-in-charge.

THE INTERPRETER: Yes.

MR TOAILOA: Now, could you please read the first sentence of your report?

THE WITNESS: "I have to report that the following exhibits were received by this office today, 19th July 1999 at 0940 hours from Inspector Laumea."

MR TOAILOA: Now, Inspector Laumea is Annie Laumea, is that not correct?

THE INTERPRETER: Yes.

HIS HONOUR: A female officer?

THE WITNESS: Yes, your Honour.

MR TOAILOA: And that is not the same person as Chief Inspector Rimoni Vaaelua, is it?

THE INTERPRETER: Different, sir.

MR TOAILOA: Can you now see the problem that we are having with your evidence, because you have, earlier this morning, told the Court that you received that empty shell, which is item number 10, from Chief Inspector Rimoni?

MR TOAILOA: Now, my question - - - 

THE INTERPRETER: I would like to make an explanation, sir, concerning my report.

MR TOAILOA: Let me ask my question first. My question is: do you agree that there is a difference in what that report says and what you have orally stated to this Court?

THE INTERPRETER: Correct.

MR TOAILOA: And that difference is, in your oral testimony today you have told the Court that these items, including that empty shell, you had received from Chief Inspector Vaaelua.

THE INTERPRETER: That is the truth of my evidence, sir.

MR TOAILOA: Whereas, in this report, you have reported to your in-charge that you received these items, including the empty shell, from Inspector Laumea. Do you simply confirm that that is the difference?

THE INTERPRETER: Sir, the meaning of that statement - - - 

MR TOAILOA: Do you confirm that that is the difference - - - 

HIS HONOUR: Just a moment, please, Mr Toailoa. We have not got the last translation. Well, I missed it if it was. What was the answer the witness gave?

THE INTERPRETER: He started by saying "the meaning of that statement" and that was it.

MR RAFTERY: He was interrupted by my friend.

HIS HONOUR: Well, I am going to ask you, Mr Toailoa. Are you going to give the witness an opportunity to explain?

MR TOAILOA: Well, I am just trying to draw his attention to the difference.

HIS HONOUR: Well, I think the difference is obvious.

MR TOAILOA: Yes.

HIS HONOUR: And the witness has already indicated that he wants to explain.

MR TOAILOA: So, do you agree, witness, that, whilst in your report you say one thing, in Court you say another?

THE INTERPRETER: My report is correct, except item 10, sir, that I would like to give a statement or explain that.

HIS HONOUR: Please do.

THE INTERPRETER: The truth is that item 10 was received by me from Chief Inspector Vaaelua on that morning, the 19th, and there is also a register and Inspector Vaaelua has signed as the person giving me this exhibit.

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

HIS HONOUR: Mr Epati?

MR EPATI: Yes, I have some questions, your Honour.

 

<FURTHER CROSS-EXAMINATION BY MR EPATI [10.24am]

 

MR EPATI: Inspector, you have given evidence in answer to Mr Raftery's question about a search at Toi Cain's premises in which you state you found some 303 and a 38 bullets or casing; do you recall that?

THE INTERPRETER: Yes.

MR EPATI: Firstly, are you aware that Toi Cain lives at Vaimoso?

THE INTERPRETER: Yes.

MR EPATI: Did you find these shells at Vaimoso?

THE INTERPRETER: I did not find them but the police - the officers that were at the search.

MR EPATI: You were not present at the search?

THE INTERPRETER: I was, sir.

MR EPATI: Were these found at Vaimoso?

THE INTERPRETER: I can't recall that now.

MR EPATI: I have here a report which was prepared by Inspector Schmidt and given to you as exhibit officer; do you recall receiving that report?

THE INTERPRETER: I cannot recall it now unless a copy is given to me.

MR EPATI: I have a copy. I will ask that you have that. It is a report - I do not have the date, it is undated - but it is addressed to the officer-in-charge of exhibits.

HIS HONOUR: How do you spell Schmidt?

MR EPATI: S-c-h-m-i-d-t.

MR RAFTERY: Your Honour, if my learned friend would just let me have a look at what he has got. I have got a large number of report forms here and I do not know whether the officer has those with him as well.

MR EPATI: Actually, while a search is being made of this particular report, you may have on your file, and I intend to ask you, could you search your file for reports made by you dated 23 July 1999, as well as a report made by you dated 9 August 1999. I intend to ask you questions on those.

THE INTERPRETER: I do not have a copy of the reports, the original are in our files, sir.

MR EPATI: I have been advised, your Honour, that the original is not here, but that the prosecution would consent to showing him the copy that I have.

HIS HONOUR: So you would like my Registrar to show the copy to the witness?

MR EPATI: If he may, sir.

HIS HONOUR: I think that was understood, but the transcript needs to record that something is about to happen. The witness now has that document in front of him.

MR EPATI: Do you recognise that now?

THE INTERPRETER: Yes.

MR EPATI: In that report it is stated the results of a search of Mr Harry Cain's premises at Tuanaimato on Friday 30 July, correct? It is in the first paragraph.

THE INTERPRETER: Yes.

MR EPATI: In the last paragraph it is stated that some empty shells were found in the premises of Harry Cain, inside one of the drawers of the dressing table inside Harry and his wife's bedroom, correct?

THE INTERPRETER: Yes.

MR EPATI: Do you now recall that these were not found in the premises of Toi Cain at Vaimoso, but were found at the premises of Harry Cain at Tuanaimato?

THE INTERPRETER: Yes.

MR EPATI: You have given evidence that the casings that were found were three 303's and one 38, correct?

THE INTERPRETER: Yes.

MR EPATI: In that report there is a handwritten note by Inspector Schmidt to you that says "What were found were three 303's and one 223", do you see that? Correct?

THE INTERPRETER: Wrong, sir.

MR EPATI: I am merely referring, can you read that, and confirm that is what the note said?

THE INTERPRETER: Sir, that is handwritten at the bottom, sir, but the person signing the report is Fou Taioalo not Jack Schmidt, sir.

MR EPATI: I am sorry, the signature of whoever wrote that is not here. But do you confirm that it was only three 303's and one 223, not a 38?

THE INTERPRETER: Sir, can I have a look at my register book, sir?

MR EPATI: Certainly.

HIS HONOUR: Do you have it here?

THE WITNESS: No, your Honour.

MR EPATI: Would you like time to do that?

THE INTERPRETER: Yes.

MR EPATI: I have two other reports which may clarify the situation. Do you have the copies of the reports I asked you, 23 July and 9 August?

THE INTERPRETER: No, sir.

MR EPATI: Would you have that somewhere else that you could obtain if you are given time?

THE INTERPRETER: Yes, sir.

HIS HONOUR: Are they here in this courtroom now?

THE INTERPRETER: At the office.

HIS HONOUR: Well, I am going to take the morning break shortly.

MR EPATI: Thank you, sir.

HIS HONOUR: Would this be a convenient time to have the morning break and we can ask the Inspector to hurry to his office and back?

 

[COUNSEL TO HIS HONOUR]

 

HIS HONOUR: Well, Inspector, perhaps if you would get those documents during the morning break. Gentlemen assessors, we will have the morning break now. Mr Courts Officer, please take charge of the assessors.

 

ASSESSORS RETIRED [10.34am]

 

HIS HONOUR: You may leave the witness-box.

<THE WITNESS WITHDREW [10.35am]

 

[COUNSEL TO HIS HONOUR]

 

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

 

SHORT ADJOURNMENT [10.36am]

 

RESUMED [10.58am]

 

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

 

 

ASSESSORS RETURNED [10.58am]

 

POE UALESI

CROSS-EXAMINATION BY MR EPATI CONTINUING

 

HIS HONOUR: Yes, go ahead, Mr Epati.

MR EPATI: Thank you, sir.

Inspector, have you got what you were looking for?

THE INTERPRETER: Yes.

MR EPATI: With reference then to the report from Inspector Schmidt to you, do you confirm that what was found at Tuanaimato was three 303's and one 223?

THE INTERPRETER: That is correct, but there were also things found at Toi's place, sir, on 3 August.

MR EPATI: When you say "Toi's", was that at Vaimoso?

THE INTERPRETER: Yes, sir.

MR EPATI: Is it mentioned in any of your reports which were disclosed to me?

THE INTERPRETER: I have missed it, sir.

MR EPATI: Refer then to your report to the officer in charge dated 9 August.

THE INTERPRETER: Yes, sir.

MR EPATI: That was a report dated 9 August regarding the searches at Vaimoso and Tuanaimato, correct?

THE INTERPRETER: Yes.

MR EPATI: On the first page do you confirm that the only search referred there is the search of 30 July?

THE INTERPRETER: Yes.

MR EPATI: In fact can you confirm that throughout the whole report there is no reference to any searches conducted by anyone of premises at Vaimoso or Tuanaimato on 3 August?

THE INTERPRETER: That is correct, but on 3 August I was present at the searches at Vaimoso and Tuanaimato.

MR EPATI: Can you tell the Court why it was not part of your report on 9 August?

THE INTERPRETER: I have missed that, your Honour.

MR EPATI: Did you find anything in the premises of Toi on this search of 3 August?

THE INTERPRETER: Bullets of a 38 and a 303, sir, were found.

MR EPATI: Can you explain to the Court why you did not report it in your reports or any of your reports?

THE INTERPRETER: I have missed that in reporting to the in-charge of the operation. But in the register that I kept, all those items are recorded.

MR EPATI: Can you explain why it was not disclosed to counsel.

THE INTERPRETER: As I have previously answered, sir, I have missed it in reporting.

MR EPATI: Well, in fairness to you, can you explain why you missed it?

THE INTERPRETER: I missed it, sir, because, at that time, we were very busy with the investigation. I believe that was the reason.

MR EPATI: I will just continue with what was disclosed to me. Refer to report of 9 August, please.

THE INTERPRETER: Yes.

MR EPATI: Can you confirm to the Court that all that was found at Tuanaimato on the search of 30 July were three 303 casings and one PS19 casing?

THE INTERPRETER: Yes.

MR EPATI: Can you also confirm to the Court that, as exhibits officer, there were other 303 casings and bullets found elsewhere in your searches?

THE INTERPRETER: Yes.

MR EPATI: In fact, according to your report of 23 July, there were searches at Salelesi. In deference to the person concerned, I will not name him. If you turn to page 2 of your report.

THE INTERPRETER: Yes.

MR EPATI: Can you confirm that the search at Salelesi was in the premises of a person completely unrelated to the both accused here?

THE INTERPRETER: I do not know if there is any connection, sir.

MR EPATI: Can you confirm that, according to your report, 31 bullets were found in those premises at Salelesi, of 303?

THE INTERPRETER: Yes, sir.

MR EPATI: Can you confirm to the Court that 303 bullets are quite common in Samoa?

THE INTERPRETER: I would not know that, sir. I would say the 22, sir, is a common bullet, sir.

MR EPATI: Yes, 22 is more common, but, do you know, of your own knowledge, that 303 is the firearm of choice for killing cattle in Samoa?

THE INTERPRETER: It's not common, sir. Only a few people have 303s.

MR EPATI: Of your own knowledge, how many people do you know have 303 firearms?

THE INTERPRETER: Only with the police services, sir. I've seen only the police services with those kind of weapons, sir.

MR EPATI: Well, it can't be only the police, because, at the premises at Salelesi, you found 31 bullets?

THE INTERPRETER: Correct. It's just recently been found that other people have that kind of ammunition, sir, as located in that search, sir.

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

HIS HONOUR: Any re-examination?

 

<FURTHER RE-EXAMINATION BY MR RAFTERY [11.11am]

 

MR RAFTERY: Again, just to assist my friends, I think you also found a 303 at a totally different address in Afega as well, isn't that right, during the course of the inquiry? Again, an address not, it is suggested, used by either of the accused in any way.

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

HIS HONOUR: What was the name of the place you mentioned, Mr Raftery?

MR RAFTERY: Afega, your Honour.

If you would look, perhaps, at your exhibit 911 in your register?

THE INTERPRETER: 911?

MR RAFTERY: 911.

THE INTERPRETER: Yes.

MR RAFTERY: And was that a 303 bullet found at an address at Afega?

THE INTERPRETER: Yes.

MR RAFTERY: Thank you very much.

Your Honour, can I just say this, really for the benefit of my friend, Mr Epati, that I also asked the officer to bring - when he was sent away - to bring the actual original exhibits from the addresses at Tuanaimato and Vaimoso. They are available if you would like them produced. I did indicate that their production was not important to the prosecution, but they are just there, and, through your Honour, if I can just see whether my friend would like them produced, in which case I will do it through the witness, otherwise I will leave it.

MR EPATI: I do not require them to be produced.

MR RAFTERY: I am grateful.

HIS HONOUR: Thank you.

MR RAFTERY: As far as the addresses - - - 

HIS HONOUR: Is this a further question of the witness?

MR RAFTERY: This is a further question of the witness, your Honour, yes.

HIS HONOUR: Yes.

MR RAFTERY: As far as the addresses you gave for Toi at Vaimoso and Tuanaimato, what was your understanding when you gave that evidence as to who owned the properties at Tuanaimato and Vaimoso?

THE INTERPRETER: My understanding is that the places at Tuanaimato and Vaimoso are both Toi's places.

MR RAFTERY: Harry Cain has been referred to; is that his son?

THE INTERPRETER: Correct.

MR RAFTERY: Thank you very much. There is no further questions that I wish to ask, your Honour.

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

MR RAFTERY: I do, your Honour, yes.

HIS HONOUR: Any objection?

MR EPATI: No objection.

MR TOAILOA: No, your Honour.

HIS HONOUR: Inspector, you have finished giving your evidence. You are now released as a witness. You may leave the witness-box and the courtroom, if you wish.

 

<THE WITNESS WITHDREW [11.14am]

 

HIS HONOUR: Yes, Mr Raftery.

MR RAFTERY: Your Honour, just while dealing with the exhibits, can I deal with a final matter in that connection, and it is admission pursuant to section 55 of the Criminal Procedure Act of 1972 that my learned friends are prepared to make without the need for calling two further experts from New Zealand. I think, as your Honour knows, it has already been mentioned, your Honour, that it is agreed. So if I were to read the admission my learned friends can confirm that they make that admission and then it can be read in Samoan to the assessors. If that is agreeable to your Honour.

HIS HONOUR: Very well, yes.

MR RAFTERY:

The ballistic and ballistic-related exhibits were examined in New Zealand by the Auckland fingerprint section. These included all items dug up from beyond the accused Leafa's kava plantation inland of Vaovai Falealili. A fingerprint belonging to Pasitale Leafa Vitale was identified on a roll on yellow tape inside the bag, P21, buried with those items. A partial fingerprint was found on a live cartridge from the magazine of the murder weapon, exhibit P8. This cartridge is shown in photograph 9 of exhibit 4 and marked EXH51B. This fingerprint was unsuitable for identification.

One other partial fingerprint was found on a live cartridge handed to the police by the witness Iulio Pogai from Poloma's cattle farm at Vaitele. This cartridge was shown in photograph 11 of exhibit P4 and marked EXH902. This fingerprint was also unsuitable for identification. No fingerprints were found on any other item.

HIS HONOUR: Gentlemen assessors, it is unusual for a judge to read to assessors a provision of an Act of Parliament, but I do so in this case because the section of the Criminal Procedure Act that I wish to draw attention to, section 55, is expressed in very clear and simple language. Section 55 reads:

The defence may, during the trial, admit any fact alleged against the defendant so as to dispense with proof thereof.

Both accused in this trial admit some facts which were just read out in English by Mr Raftery. In a moment, the Registrar will read to you those admitted facts in Samoan. Admitted facts are - that means what it says. They are facts which have been agreed to, admitted, and there is no dispute about them. So what you will hear read to you in a moment you may treat as evidence, as if a witness was in the witness-box giving evidence to this effect, without there being any dispute from the defence. These are the facts which are admitted by each of the two accused. Mr Registrar.

 

[ADMITTED FACTS READ TO THE ASSESSORS IN SAMOAN]

 

HIS HONOUR: Thank you. Mr Raftery.

MR RAFTERY: Ututau Pasese, please.

 

<UTUTAU PASESE, sworn [11.24am]

 

<EXAMINATION-IN-CHIEF BY MR RAFTERY

 

MR RAFTERY: What are you full names, please?

THE INTERPRETER: Ututau Pasese.

MR RAFTERY: What rank are you?

THE INTERPRETER: Police officer sir.

MR RAFTERY: What section are you attached to?

THE INTERPRETER: Traffic Section, sir.

MR RAFTERY: You are a constable of police, is that correct?

THE INTERPRETER: Yes, sir.

MR RAFTERY: I want to ask you about Saturday 17 July last year, the day after Luagalau was killed; were you on duty that morning at work doing traffic duties?

THE INTERPRETER: Yes.

MR RAFTERY: What time did you finish work that day?

THE INTERPRETER: One in the afternoon, sir.

MR RAFTERY: Once you had finished work, did you return to the police station here in Apia?

THE INTERPRETER: Yes, sir.

MR RAFTERY: What did you do once you had returned to the office; did you have any other duties to do or were you just getting ready to go home?

THE INTERPRETER: No, other duties, sir, except to prepare to go back home, sir.

MR RAFTERY: What did you do in order to prepare to go back home?

THE INTERPRETER: Remove the police uniform, sir, and change into civilian clothes, sir, to go home.

MR RAFTERY: How do you normally go home? Do you have your own vehicle, or do you go by bus, or some other way?

THE INTERPRETER: Go by bus, sir, I have no car.

MR RAFTERY: Where did you go to get the bus to go home?

THE INTERPRETER: Flea Market, sir.

MR RAFTERY: Whereabouts do you live?

THE INTERPRETER: Malie, sir.

MR RAFTERY: Is that where you were living in July last year?

THE INTERPRETER: Yes.

MR RAFTERY: Did you catch a bus home to Malie that afternoon?

THE INTERPRETER: Yes, sir.

MR RAFTERY: The bus that you caught, did it take you past the premises of the accused Toi at Vaimoso?

THE INTERPRETER: Yes, sir.

MR RAFTERY: As best you can work it out, about what sort of time would you have been passing Toi's premises on that afternoon?

THE INTERPRETER: Just past 2.

MR RAFTERY: When you went past, did you see either of the accused in this case?

THE INTERPRETER: Before I passed I saw.

MR RAFTERY: What did you see?

THE INTERPRETER: I saw a green van.

MR RAFTERY: Was there anyone in the green van?

THE INTERPRETER: Yes, the driver Aniseko.

MR RAFTERY: Apart from Aniseko did you see anyone else?

THE INTERPRETER: Yes, I saw Leafa Vitale.

MR RAFTERY: Was he in the van or was he outside of it?

THE INTERPRETER: Outside the van.

MR RAFTERY: Did you see the accused Toi at all?

THE INTERPRETER: Yes.

MR RAFTERY: Where was he?

THE INTERPRETER: The door of his house.

MR RAFTERY: Did you see either of the accused, Leafa Vitale, actually doing anything physically?

THE INTERPRETER: He was putting up his hand like that to Toi (The witness putting up his right hand).

MR RAFTERY: What, if anything, was Toi doing? Was he responding in any way with his hand or in any other way?

THE INTERPRETER: Yes, likewise, he waved - put up his hand like that.

MR RAFTERY: Did you see what Leafa did after that?

THE INTERPRETER: He was about to enter the van.

MR RAFTERY: Did you see any more than what you have just described?

THE INTERPRETER: No, that was all.

MR RAFTERY: Then you just carried on home to Malie, did you?

THE INTERPRETER: Yes.

MR RAFTERY: All right, thank you.

HIS HONOUR: Mr Epati.

 

<CROSS-EXAMINATION BY MR EPATI [11.30am]

 

MR EPATI: Constable, how long have you been a police officer?

THE INTERPRETER: Ten years, sir.

MR EPATI: In what sections of the police have you served in within that ten years.

THE INTERPRETER: The cadet section, they serve summonses; the beat, they look after the watchhouse; and then the traffic section, where I am currently employed.

MR EPATI: How long have you been with the traffic section?

THE INTERPRETER: Six years.

MR EPATI: Of the six years you have been in traffic you have been conducting traffic, generally buses and cars around town; correct?

THE INTERPRETER: Yes.

MR EPATI: Which bus did you take on this particular occasion?

THE INTERPRETER: I cannot recall that, sir.

MR EPATI: Well, if you cannot recall the bus, what colour was it?

THE INTERPRETER: I cannot recall any features of the bus.

MR EPATI: Most buses have names written on the side; correct?

THE INTERPRETER: Correct, sir.

MR EPATI: Can you recall whether this bus had a name?

THE INTERPRETER: I did not look for a name on the bus, sir. All I was interested in was a bus that would carry me to my village.

MR EPATI: Did you look at the name that is to display the destination of this bus?

THE INTERPRETER: Yes, I looked.

MR EPATI: And what name was it, where this bus destination was?

THE INTERPRETER: Leauva'a, sir.

MR EPATI: So you live at Malie, correct?

THE INTERPRETER: Yes, sir.

MR EPATI: And Leauva'a is just a few villages from Malie, correct?

THE INTERPRETER: Yes, sir.

MR EPATI: Who was - - - 

HIS HONOUR: Do you mean further away from or closer to Apia?

THE INTERPRETER: Further to the west, sir.

MR EPATI: Can you tell us who the driver was?

THE INTERPRETER: If only I could recall the bus, I would have known the driver too, sir.

MR EPATI: So, you can't recall who the driver was, or you don't know who the driver was?

THE INTERPRETER: I do not know the driver, sir.

MR EPATI: Well, can you tell us one name, just one name, passenger or anybody that you can tell us, who can tell us that yes, you were on that bus?

THE INTERPRETER: I do not know if there was anybody in the bus that knew me, or a person that I was acquainted with, inside the bus.

MR EPATI: Let me understand your evidence. Your evidence is: you have been a traffic officer conducting traffic for six years; you can't remember the bus; you don't know the colour; you can't remember whether there was any name; and you don't know the driver or anybody who can confirm what you are telling us now. Is that correct?

THE INTERPRETER: Yes, sir.

MR EPATI: You made a statement to the police about this, correct?

THE INTERPRETER: Yes.

MR EPATI: When did you first make your statement to the police about this?

THE INTERPRETER: The day before yesterday, sir, Tuesday.

MR EPATI: You've been a member of the escort team for accused Toi, correct?

THE INTERPRETER: Yes.

MR EPATI: Both here in Court as well as up in prison, correct?

THE INTERPRETER: Yes.

MR EPATI: And this was since - when were you escorting the accused Toi?

THE INTERPRETER: When the Court starts.

MR EPATI: Just over two months; correct?

THE INTERPRETER: Yes.

MR EPATI: You have been present when I have come over to talk to accused Toi in that room or up in prison; correct?

THE INTERPRETER: Yes.

[HIS HONOUR TO COUNSEL]

 

MR EPATI: Were you within ear shot of my discussions with Toi - some, not most?

THE INTERPRETER: I could not hear your discussions.

MR EPATI: You were present in some of the discussions, were not you?

THE INTERPRETER: Yes. But when you come in, sir, I would immediately leave.

MR EPATI: When you leave, you just position yourself just outside the door; correct?

THE INTERPRETER: Yes.

MR EPATI: So you would have heard some of my discussions with the accused Toi?

THE INTERPRETER: No, sir.

MR EPATI: But you were present in Court all throughout this trial; correct?

THE INTERPRETER: Yes.

MR EPATI: So you would have gathered that one of the most important issues in this trial is whether Toi and accused Leafa had met or talked or seen each other; correct?

THE INTERPRETER: I do not understand the question, sir.

MR EPATI: You would have been aware from the Court proceedings that one of the issues in this trial is whether accused Toi and accused Leafa had met or seen each other at around about the time that you were talking about?

THE INTERPRETER: After the incident.

MR EPATI: Why did you not make a statement to the police before this, before yesterday or the day before yesterday?

THE INTERPRETER: I talked to Solomona about this matter at the beginning of the Court case. I did not think I was going to be called.

MR EPATI: When you say Solomona, you are not meaning my learned friend, Solomona Toailoa. Would Solomona be a police officer?

THE INTERPRETER: Yes, Solomona Leavasa, police officer.

MR EPATI: Specifically, Sergeant Solomona Leavasa?

THE INTERPRETER: Yes.

MR EPATI: When did you talk to him about this?

THE INTERPRETER: After the arrest of the two defendants, Leafa and Toi.

MR EPATI: How long after the arrest?

THE INTERPRETER: About a week.

MR EPATI: Did you make a note of what you saw?

THE INTERPRETER: No.

MR EPATI: Did you make a report of what you saw?

THE INTERPRETER: No.

MR EPATI: There is absolutely no writing to confirm what you saw; correct?

THE INTERPRETER: Correct.

MR EPATI: After you spoke to Sergeant Solomona Leavasa, did Sergeant Leavasa make a note of it?

THE INTERPRETER: I do not know that.

MR EPATI: Did any police officer ask you to make a note or a report to anybody else?

THE INTERPRETER: No.

MR EPATI: Would I be correct in saying that, after you reported it to Sergeant Solomona Leavasa, you left it at that?

THE INTERPRETER: Correct.

MR EPATI: Toi will give evidence to say that no such event occurred on the date 17 July, what would you say about that?

THE INTERPRETER: That is a person's right, sir, but what I saw is what I had related to the Court.

MR EPATI: But would you say that evidence of Toi's would be incorrect?

THE INTERPRETER: Incorrect.

MR EPATI: There will also be evidence called that Toi was suffering from double pneumonia and he was in bed all that day. Do you say that would be incorrect too?

THE INTERPRETER: Sir, I have no medical experience, I therefore have no knowledge of those sicknesses.

MR EPATI: No, I am not asking you for a diagnosis; I am merely asking you whether it would be correct, the evidence that Toi was in bed and he did not come to his door as you saw, would that be incorrect?

THE INTERPRETER: I suppose it would be right too; all I am saying is that what I saw is true.

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

HIS HONOUR: Mr Toailoa.

 

<CROSS-EXAMINATION BY MR TOAILOA [11.46am]

 

MR TOAILOA: Constable, am I correct that, when you work on a Saturday, like 17 July, you would normally have to sign in, in a time book in your office?

THE INTERPRETER: Correct.

MR TOAILOA: On that particular day, did you sign that time book so that if one looks at it one can say - - - 

HIS HONOUR: One step at a time, please, Mr Toailoa: "Did you sign?"

MR TOAILOA: Did you sign that time book on 17 July?

THE INTERPRETER: I did not sign when I go in, I did not sign when I went out.

MR TOAILOA: After you left the office on the 17th, when was the next time you went back to the office?

THE INTERPRETER: Monday, sir, next Monday.

MR TOAILOA: On that Monday when you went back to the office, did you sign the time book?

THE INTERPRETER: No.

MR TOAILOA: On any day thereafter did you ever sign that time book to show that you did work on 17 July?

THE INTERPRETER: No.

MR TOAILOA: Am I also correct that you cannot recall any of the other officers who were working with you on 17 July?

THE INTERPRETER: That is correct.

MR TOAILOA: So, except for your own words, which you have now told the Court "that you worked on that day", would I be correct that there is no other independent piece of evidence that could prove that you did actually work on that day?

THE INTERPRETER: Only myself.

MR TOAILOA: Now, you said that you went past Toi's residence at Vaimoso after 2pm. Can you be more precise as to the exact time?

THE INTERPRETER: 5 past 2.

MR TOAILOA: Now, you have told this Court that what you saw was Leafa standing outside the van and he was waving back at Toi who was at the same time waving at him; that is correct?

THE INTERPRETER: Yes.

MR TOAILOA: That is what you have told the Court?

THE INTERPRETER: That is true.

MR TOAILOA: But you must remember what you said to the police in your written statement, because it was only the day before yesterday that you gave the police that witness statement; correct?

THE INTERPRETER: Yes.

MR TOAILOA: Okay. Now, did you not tell the police that when the bus went past Toi's shop at Vaimoso you saw a green van driven by Aniseko with Leafa sitting in the front passenger seat and at that time the van was reversing on to the main road? That was what you told the police, was it not?

THE INTERPRETER: What I told the police was that Leafa was outside the van. He was about to go into the van. I suppose they have mis-typed it.

MR TOAILOA: Well, could the witness be shown the original of his statement, please? Now, the document now before you, is that your statement that you gave the police?

THE INTERPRETER: Yes.

MR TOAILOA: And you've signed that statement?

THE INTERPRETER: Correct.

MR TOAILOA: Now, could you look at the last paragraph? I've only got the English translation, but I presume that the translation corresponds to the paragraphs in your Samoan statement.

THE INTERPRETER: Yes.

MR TOAILOA: Now, can you read that paragraph to the Court, please?

THE INTERPRETER:

While travelling in the bus, I saw a green van driven by Aniseko with Leafa riding at the front, and was reversing to the main road. And then I saw Toi waving, and likewise, Leafa waving. I also noticed Toi Aukuso smiling to Leafa Vitale.

MR TOAILOA: Having now read that statement of yours which you gave the police the day before yesterday, do you confirm that, according to that statement, you told the police that Leafa was in the van?

THE INTERPRETER: It's written in here, sir, that Leafa was inside the van.

MR TOAILOA: And the van was in the process of reversing onto or into the main road?

THE INTERPRETER: Yes, it's in here.

MR TOAILOA: And there is no mention by you, in that statement, that Leafa was standing outside of the van.

THE INTERPRETER: Sir, that is the statement. But my evidence is that, when the traffic slowed down in front of the falevalu(?), I saw the van reversing and I also saw Leafa, he was in the process of entering the van.

MR TOAILOA: You signed that statement, didn't you?

THE INTERPRETER: Yes, I signed it.

MR TOAILOA: And, before you signed it, did you read it to make sure that it was correct?

THE INTERPRETER: No, I did not read the statement because I knew it should be correct.

MR TOAILOA: Well, why didn't you read it?

THE INTERPRETER: I did not want to read it.

MR TOAILOA: It's only a very brief statement, is it not?

THE INTERPRETER: Correct.

MR TOAILOA: But you would agree then that there is a difference between what is in that statement to the police and what you have told the Court today?

THE INTERPRETER: Yes, there is a difference.

MR TOAILOA: Now, do you recall the time Aniseko was giving evidence?

THE INTERPRETER: I knew Aniseko gave evidence, sir.

MR TOAILOA: And you would have been in Court during the days that he was giving his evidence, is that not correct?

THE INTERPRETER: Yes.

MR TOAILOA: So you would have been in Court on the day that Aniseko gave evidence regarding the events of 17 July?

THE INTERPRETER: Yes.

MR TOAILOA: And you would have heard Aniseko telling this Court that, around about the afternoon of that day, he went to Vaovai and picked up Leafa and brought him to town for a Cabinet meeting?

THE INTERPRETER: Well, I suppose that is correct.

MR TOAILOA: You would have also heard Aniseko telling the Court that, after that meeting, he took Leafa back to Vaovai?

THE INTERPRETER: Sir, I did not know there was a meeting, sir, but what I am referring to in my statement is true, sir, my statement is true.

MR TOAILOA: Could you listen carefully to my question? I am asking you whether you knew there was a meeting. Did you understand my question?

THE INTERPRETER: I get you, sir.

MR TOAILOA: Did you understand my question?

THE INTERPRETER: Yes.

MR TOAILOA: Well, can you answer my question then?

THE INTERPRETER: I suppose Aniseko is true, is correct, sir.

MR TOAILOA: What I am asking you is: you would have been in Court at the time Aniseko was telling this Court that after the Cabinet meeting on 17 July, he took Leafa back to Vaovai?

THE INTERPRETER: I suppose he is correct, sir. I suppose Aniseko is correct.

MR TOAILOA: I am not really asking you whether Aniseko is correct; what is am asking is whether you would confirm that you were in Court at the time that testimony was given by Aniseko?

THE INTERPRETER: Correct.

MR TOAILOA: You would have heard that Aniseko never mentioned once that he and Leafa went to Toi's place at Vaimoso on the 17th?

THE INTERPRETER: I suppose Aniseko is correct.

MR TOAILOA: Do you understand the meaning of my question that I am asking you?

THE INTERPRETER: I know.

MR TOAILOA: Then why don't you answer directly the question I am asking you?

THE INTERPRETER: I am answering you, sir.

MR TOAILOA: You are not answering my question; I am not asking you whether you think Aniseko is correct.

THE INTERPRETER: Well, can you, please, counsel, repeat your question?

MR TOAILOA: Could you listen carefully and if you don't understand, please, say so? Now, you have conceded that you were in Court when Aniseko was giving his testimony regarding his movements with Leafa on 17 July. What I was asking you is: you would then confirm that, when Aniseko was giving that evidence, he did not mention at all calling in with Leafa to Toi's place at Vaimoso?

THE INTERPRETER: Correct.

MR TOAILOA: Despite you sitting in this courtroom and knowing what you allege you know, you sat back and did nothing about it, isn't that correct?

THE INTERPRETER: Correct.

MR TOAILOA: You did not mention to any senior police officer or any of the counsel handling the prosecution, "Hey, look, I've got this very important information. It would also be important that Aniseko about it because Aniseko should have known". You did not do any of that, did you?

THE INTERPRETER: True.

MR TOAILOA: It was not until the day before yesterday that you decided - and you knew that at that point, in time indications, that there were only about three more very brief witnesses for the prosecution and the prosecution was about to wind up its case. It was only at that point that you popped up and flagged this piece of evidence which you have now given to this Court.

THE INTERPRETER: When I was required.

MR TOAILOA: Did somebody ask you first or did you volunteer?

THE INTERPRETER: I talked to Solomona, a senior officer, and he talked to the investigators and I would have thought that they would have then required me.

MR TOAILOA: I thought, when you were responding to my question, you were saying that somebody had required you to testify. Was that what you meant?

THE INTERPRETER: In my capacity as a police officer, and as a police officer, I should explain what happened.

MR TOAILOA: Yes. In your capacity as a police officer, you knew that you should have raised this matter again with those responsible right at the beginning to make sure that the matter is addressed properly, and whether or not you would testify.

THE INTERPRETER: Yes, I should have done that.

MR TOAILOA: But you did not, did you? You just sat back and only, almost at the very last minute, so to speak, that you decided to speak out?

THE INTERPRETER: Correct.

HIS HONOUR: Mr Toailoa, will you be long?

MR TOAILOA: I am almost finished, your Honour.

HIS HONOUR: Yes.

MR TOAILOA: Now, in summing up your evidence, am I correct that nobody can provide independent proof that you actually worked on 17 July?

THE INTERPRETER: It should be recalled, sir, I had stated that I was working on the 17th.

MR TOAILOA: Well, you have not named anyone, have you?

THE INTERPRETER: There are several in charge of the office.

MR TOAILOA: But you have not named one person who could confirm that you worked on the 17th, can you?

THE INTERPRETER: Well, I think I have to look at the book, sir, that recorded the reserves on that day, sir.

MR TOAILOA: You can't recall the bus that you travelled in?

THE INTERPRETER: No, sir.

MR TOAILOA: Nor the colour?

THE INTERPRETER: Correct.

MR TOAILOA: Nor the name of anyone that might have been in that bus?

THE INTERPRETER: Correct, sir.

MR TOAILOA: Despite the fact that you have been a police officer for 10 years, and in the Traffic Division for 6 years?

THE INTERPRETER: Yes.

MR TOAILOA: Would I be correct to assume that, in your role as a traffic officer for 6 years, you would just about know almost every bus and every bus driver in Upolu, isn't that correct?

THE INTERPRETER: True. Except when I ask a bus driver for his name, when I am about to charge a bus driver.

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

HIS HONOUR: Any re-examination?

 

<RE-EXAMINATION BY MR RAFTERY [12.10pm]

 

MR RAFTERY: When you were on duty that morning, were you doing traffic duties or other duties?

THE INTERPRETER: Traffic duties only, sir.

MR RAFTERY: Whereabouts in town were you doing them?

THE INTERPRETER: The section between the post office and the town hall.

MR RAFTERY: Were you on your own as a traffic officer doing that; or were you with another traffic officer doing that?

THE INTERPRETER: I can recall it was just myself.

MR RAFTERY: When you mentioned after the arrest of Toi and Leafa last year this matter to Sergeant Leavasa, did he ever ask you to put in a report about it?

THE INTERPRETER: No, sir.

MR RAFTERY: Thank you very much.

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

MR RAFTERY: I ask for the witness to be released, your Honour, yes.

HIS HONOUR: Any objection?

MR TOAILOA: No objection.

MR EPATI: No objection.

HIS HONOUR: Constable, you have finished giving your evidence, and you are free to leave the witness-box and the courtroom if you wish.

 

<THE WITNESS WITHDREW [12.11pm]

 

[HIS HONOUR TO COUNSEL]

 

HIS HONOUR: Gentlemen assessors, I have just been told that there is one final witness to give evidence in the prosecution case. He will be called after lunch. Mr Courts Officer, please take charge of the assessors.

 

ASSESSORS RETIRED [12.13pm]

 

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

 

LUNCHEON ADJOURNMENT [12.14pm]

RESUMED [2.06pm]

 

[HIS HONOUR TO COUNSEL]

 

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

 

ASSESSORS RETURNED [2.09pm]

 

[COUNSEL TO HIS HONOUR]

 

MR RAFTERY: Your Honour, I call Inspector Fou Taioalo, please.

 

<FOU TAIOALA, sworn [2.12pm]

 

<EXAMINATION-IN-CHIEF BY MR RAFTERY

 

THE INTERPRETER: Your Honour and Gentlemen Assessors, my full name is Fou Taioalo. I am an Inspector of Police and at present the head of the CIB office in Apia.

MR RAFTERY: If I can just take you back to the time in July of last year following the death of the Honourable Luagalau. Were you appointed as the second-in-charge of that inquiry?

THE INTERPRETER: Yes, your Honour.

MR RAFTERY: I think the officer who was actually appointed to the position of overall officer-in-charge of the inquiry was Superintendent Patu Ativalu; is that correct?

THE INTERPRETER: Yes.

MR RAFTERY: As second-in-charge had the day-to-day responsibility of the running of the inquiry; would that be correct?

THE INTERPRETER: Yes, sir.

MR RAFTERY: I do not want to ask you about any other aspect of the inquiry other than your involvement with the accused Leafa.

THE INTERPRETER: Yes, sir.

MR RAFTERY: And did you conduct a brief interview with him on the afternoon of 4 August of last year?

THE INTERPRETER: Yes, sir. Yes, your Honour. It was on 4 August 1999 that I had a discussion with Leafa at the police office. Leafa is now sitting in the dock, next to Solomona.

MR RAFTERY: In the course of that interview, did you keep any notes in a notebook?

THE INTERPRETER: Yes, your Honour.

MR RAFTERY: And were those notes made at the time that you were conducting the interview with the accused?

THE INTERPRETER: Yes, sir.

MR RAFTERY: And do you ask his Honour's permission to refer to those notes to give as accurate an account as you can of what passed between you?

THE INTERPRETER: Yes, sir.

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: Would you like the opportunity of refreshing your memory from your notebook or not?

THE INTERPRETER: I would like that opportunity.

HIS HONOUR: Without that opportunity being given to you, do you feel that you may not be able to recount the conversation that you had with the accused Leafa in its full detail and in sequence? Is that what you are saying?

THE INTERPRETER: Yes, sir.

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: When you saw him at the police station, was - - - 

 

[HEAVY DOWNPOUR OF RAIN]

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: When you saw the accused at the police station, was that the first time that you had seen him that day?

THE INTERPRETER: Yes, the first time that I had seen him at the police office.

MR RAFTERY: And had he come to the police station with other officers who had collected him from his home that morning?

THE INTERPRETER: Yes.

MR RAFTERY: About what time in the afternoon was it that you saw the accused Leafa?

THE INTERPRETER: Quarter after 2.

MR RAFTERY: And, when you had this brief interview with him, were you on your own or with any other police officer?

THE INTERPRETER: Police Officer Steve Shortland of New Zealand was with me in the room.

MR RAFTERY: And so was it just you, the New Zealand officer, Steve Shortland, and the accused Leafa in the interview room?

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: Would you please pause, Mr Raftery? In view of the heaviest downpour of rain we have had since this trial began, what I understand may be the tail end of cyclone Mona, I indicate that it is hitting us with some force at the moment. The technical staff need to check that the equipment is recording. We are all, I think, hearing but with some difficulty, but, hearing nonetheless. But it is no good us hearing if we do not get a transcript of what is said. So, if you would care to take a seat, we will relax for a few minutes.

 

[INSPECTION OF RECORDING EQUIPMENT BY

TECHNICAL STAFF]

 

[HIS HONOUR TO COUNSEL]

 

MR RAFTERY: You have just been telling us that there was yourself, a detective-inspector from New Zealand called Steve Shortland, and the accused Leafa, together in an interview room; is that correct?

THE INTERPRETER: Yes, your Honour.

MR RAFTERY: So was the first part of your meeting conducted in the English language?

THE INTERPRETER: Yes. The introduction, sir, introducing Steve Shortland and myself in English.

MR RAFTERY: But when you actually conducted an interview about the subject matter of your inquiry, was that conducted in the Samoan language with the accused?

THE INTERPRETER: Yes, your Honour.

MR RAFTERY: Is the Samoan that you spoke and that the accused spoke in response to it what you have recorded in your note book in the Samoan language?

THE INTERPRETER: Yes, your Honour.

MR RAFTERY: Well, just see how you go. If you need to refer to the note book just tell us. But can you remember what your first question was, in Samoan, of the accused Leafa?

THE INTERPRETER: Yes. The first question that I asked him was, "Is there anything that you know about the death of Luagalau?"

MR RAFTERY: What was his response to that?

THE INTERPRETER: Leafa replied that there is nothing that made him angry with Luagalau, except for Toi; if he is angry, then he should be, because Luagalau has stopped his contract.

MR EPATI: For what it is worth, your Honour, could I ask that the usual caution with regard to such statements be made at this stage to the assessors.

HIS HONOUR: I am not sure that I am in a position to give the usual warning, but some sort of warning, yes. Gentlemen Assessors, you have just heard some evidence from this witness as to a conversation that he is alleged to have had with the accused Leafa in which there was some reference allegedly made by Leafa to the accused Toi. Some care needs to be taken with reference to this evidence, and it will be explained to you in due course. But, for present purposes and until further notice, I advise you not to use evidence of this conversation as against the accused Toi.

Do you wish to be heard further, Mr Epati?

MR EPATI: No, that is quite adequate, thank you.

HIS HONOUR: Mr Raftery.

MR RAFTERY: What was the next thing you asked him?

THE INTERPRETER: The next thing was that "Does it mean that it was your son that was charged with the killing of Luagalau?"

MR RAFTERY: What was his response to that?

THE INTERPRETER: Leafa replied to me "Yes, because everybody will be saying that he [sic] was the one that urged his [sic] son to kill Luagalau", and he continued by saying, "But, look, no stupid father will instruct his son to do a bad thing like that".

MR RAFTERY: What was the next thing you asked him?

THE INTERPRETER: Then I told Leafa that "there is evidence against him [sic] in connection with the killing of Luagalau", and I also told him that "it will be made known to him [sic], but it is up to him [sic] whether to answer to them or not".

MR RAFTERY: How did he reply to that?

THE INTERPRETER: Can I use my notebook, sir?

HIS HONOUR: Is there any objection to the use of the notebook, at this stage?

MR TOAILOA: No, your Honour.

HIS HONOUR: There is none from Mr Toailoa. I take it there is none from your, Mr Epati?

MR EPATI: None from me, sir.

HIS HONOUR: The prosecution would invite me to give permission?

MR RAFTERY: I would, your Honour, yes.

HIS HONOUR: Permission is granted, Inspector, for you to look at your notebook as and when you may need it for the purpose of refreshing your memory as to what was said.

THE INTERPRETER: Leafa did not reply, but I again told Leafa that "we know that you were the one that instructed your son Tise to shoot Luagalau."

MR RAFTERY: Did he say anything in response to that?

THE INTERPRETER: Leafa said, "No, but can I make a lawyer?"

MR RAFTERY: And were arrangements made - were arrangements attempted to be made shortly thereafter to try and contact his lawyer, Mr Toailoa?

THE INTERPRETER: Attempts were made, sir, to contact Mr Toailoa before the commencement of the interview, but Mr Toailoa was having a court case and he was not found on the phone. So I told Leafa that Mr Toailoa could not be found and, if we could continue with the interview, and that was why it continued.

MR RAFTERY: Was Mr Toailoa able to see his client some time later that day; can you remember?

THE INTERPRETER: I do not know that, because, by the time we completed the interview with Leafa, Toailoa had not turned up. I also tried to contact and even instructed the sergeant at the watch house to try and contact Mr Toailoa by phone.

MR RAFTERY: But later on that afternoon or evening, was he formally charged with the offence which he now faces?

THE INTERPRETER: Yes, your Honour.

MR RAFTERY: I think you formally laid the informations against both accused in the Supreme Court; is that correct?

THE INTERPRETER: Yes, sir.

MR RAFTERY: All right. If you would just wait there, please.

HIS HONOUR: Mr Epati, if you have any cross-examination, I think you should go first.

MR EPATI: I do not have any, thank you.

HIS HONOUR: Mr Toailoa, any cross-examination?

MR TOAILOA: No, your Honour.

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

MR RAFTERY: Your Honour, I do.

HIS HONOUR: I take it there is no objection?

MR TOAILOA: No objection.

MR EPATI: No objection.

HIS HONOUR: Inspector, you have finished giving your evidence. You have completed your time as a witness in this trial and you are free to leave the witness-box and the courtroom if you wish.

THE WITNESS: Thank you, your Honour.

 

<THE WITNESS WITHDREW [2.40pm]

 

MR RAFTERY: Your Honour, as I indicated before lunch, in the light of the fact that the defence did not wish the other witness, Sergeant Leavasa, that this will be the last witness that I would call. I now close the prosecution case, subject to two matters, your Honour. One is I have indicated, as I think your Honour is aware, to my learned friends that, should they require a particular prosecution witness first thing on Monday morning, he would be available for the few questions that they might have of him.

The other matter that I have just mentioned to my friend, he asked me to make an inquiry about the exact finish time of the Cabinet meeting on 17 July. I have not been able to give him that time to the last minute, only an approximate time. I have indicated that, if it still remains an important matter for him, I will find out that time for him and provide it to him. Should there be any dispute about the matter, then there may need to be a little bit of evidence upon that. It seems unlikely, but I just say that with that caveat. And, subject to those two matters, your Honour, I would close the prosecution's case.

HIS HONOUR: As I am understanding you, Mr Raftery, that, subject to the possible recall of Constable Ututau Pasese - I am not sure if I have got the name right, but he gave evidence this morning - - - 

MR RAFTERY: Yes, indeed, your Honour.

HIS HONOUR: - - - and also subject to any further inquiry being required in Court regarding the time of the finishing of a Cabinet meeting, that is the case for the prosecution?

MR RAFTERY: It is, your Honour.

HIS HONOUR: If that be so, and if there is no objection, I propose to advise the assessors that that is the case for the prosecution, subject to two small question marks, so to speak, and then I propose to adjourn this trial until Monday morning next at 9.30, when it would be, in a sense, and, as it were, "over to the defence".

MR RAFTERY: Yes, your Honour.

HIS HONOUR: And I would be calling upon Mr Toailoa to indicate something about the accused Leafa's defence.

MR RAFTERY: Yes, your Honour.

HIS HONOUR: Are defence counsel content with that course, and for me to explain that much to the assessors?

 

[COUNSEL TO HIS HONOUR]

 

HIS HONOUR: Gentlemen assessors, you may well have forgotten, but I think on day one of this trial, I, in explaining the course of a trial, did draw attention to the fact that a stage is generally reached when the prosecution case comes to an end, and that is usually by an intimation by the prosecutor, or one of the prosecutors, to the effect that "that is the case for the prosecution", or that the prosecution case has closed.

That stage has been reached, gentlemen, and I tell you that the case for the prosecution has been closed, but subject to two small matters. Those two matters are matters in respect of which I have "left the door", so to speak, open for some further evidence yet to be produced. I need not trouble you with the details of those two small matters; and, by describing them as "small matters", I do not suggest that they are unimportant, but they are not likely to take very long, if they arise for further consideration.

So, gentlemen, I am expecting (and you may expect) that, on Monday morning, at 9.30, after dealing with one or two matters that might arise, I will call upon Mr Toailoa, on behalf of the accused Leafa, to indicate something about Leafa's defence.

Because I have not mentioned Mr Epati and his client, the accused Toi, it is not because their position is any less important, but you cannot have, in a joint trial such as this, both accused persons commencing their defence at the same time. So I will be focussing my attention initially upon Mr Toailoa on behalf of the accused Leafa.

The lawyers and I have plenty to do between now and next Monday, but you will have something in the nature of another long weekend.

Although the close of the prosecution case is a significant milestone in a criminal trial, it is not an invitation to you, or any of you, to reach any final conclusions. Indeed, far from it. You should, by all means, reflect upon the evidence that you have heard for the prosecution, and await further developments.

I remind you again not to discuss the evidence or any development in this trial with anybody apart from yourselves, and in accordance with your duty that you have sworn to do, take firm action to resist any efforts that might be made by people outside to talk to you.

I hope, gentlemen, when I see you next on Monday morning, it will be a less cyclonic day! Mr Courts Officer, would you take charge of the assessors, please.

If there is nothing further from counsel, Mr Registrar, would you adjourn the Court and this trial until 9.30am on Monday next.

 

ADJOURNED UNTIL 9.30 AM,

MONDAY, 13 MARCH 2000 [2.59pm]