SAMOAN POLITICS.

New Zealand Herald, Volume LXVII, Issue 20480, 4 February 1930, Page 13

SAMOAN POLITICS.

ALLEGED LIBEL.

NELSON V. THE HERALD.

LETTER FROM THE MAU

THREAT TO WITNESSES

"AN END TO YOUR LIVES"

PLAINTIFF NOT READY.

Important developments took place yesterday with regard to a suit for alleged libel, brought by Olaf Frederick Nelson, merchant, of Auckland and formerly of Samoa, against the proprietors and publishers of tho New Zealand Herald. The action, in which £IO,OOO is claimed as damages, is in respect to certain articles published in the Herald in January, 1928, and June, 1929, regarding the plaintiff's connection with Samoan affairs. It was set down last October for hearing on February 20, in the Supreme Court at Auckland. In chambers yesterday an application was made to Mr. Justico Herdman by Mr. Hall Skelton, leading counsel for tho plaintiff, to havo tho hearing adjourned sine die.

The principal reason given in support of the application was that 11 essential witnesses for the plaintiff, all members of the Mau, could not be present at a hearing in February, inasmuch as they had been fugitives from tho police sinco the disturbance of December 28, had been declared by proclamation to be seditious persons, and wero prevented from obtaining permits to leave Samoa. Moreover, it was not possiblo to communicate with them. Adjournment Opposed. For the defendants, Mr. H. P. Richmond, with whom Mr. A. H„ Johnstone appeared, opposed any adjournment, on tho grounds that tho defendants were ready to go to trial; that three Samoan chiefs who had been brought to .Auckland as witnesses could not bo further detained, and their evidence would be lost if they wero sent back, owing to threats that had been made against them by tho Mau; that European witnesses brought specially from Samoa would have to go back, and all of I'hera might not be again available; that the defendants -would be put to much extra expense, and that a sino die adjournment was unreasonable.

One affidavit put in by the defendants contained a copy of a letter stated to have been received by two of the three Samoan chiefs from four leaders of the Man, threatening them with death if they gave evidence against tho Mau or Mr. Nelson, and adding tha.t the arm of Samoa, could reach them in any corner of the world.

His Honor adjourned the application until 10 a.m. to-day (Tuesday), requiring Mr. Hall Skelton meanwhile to file a sworn affidavit setting forth the names and addresses of the unobtainable witnesses, the nature of their evidence, and the date, or dates, upon which they would be able to give it.. Mr. Hall Skelton demurred at these conditions, stating that he did not know when the witnesses would be available and he did not wish to disclose their names. His Honor intimated that ii the affidavit were filed he would consider whether tie would grant a final adjournment to a definite date in May. // Plaintiff's Witnesses. la his summons for tho postponement of the hearing sine die, the plaintiff Nelson stated that a great number of his witnesses, without whom he could not safely or possibly go to trial, were resident in Western Samoa, were prevented from obtaining permits to leave that territory owing to certain proclamations by the Administrator since the disturbance of December 28, 1929, and could not be communicated with during the present disturbed state of affairs. He was informed by his solicitor, and believed, that he had a good cause of action. He had been ready to go to trial at the end of October, 1929, but defendants required further time, although he had two Samoan witnesses in Auckland and had instructed others to follow. Defendants had applied at this luto stage for answers to a long list of interrogatories, and if somo or all were ordered to be answered he should require to make inquiries in Samoa, and this would necessitate a period of at least 21 days, which had been granted defendants in his application, and this could not bo done before the date of the fixture. Finally, owing to Hie/present state of disturbance in Western Samoa and the inflamed state of public opinion in New Zealand it would bo impossible to obtain a fair and impartial hearing at the trial. Ho asked that the costs of and incidental to tho application should be reserved. A further affidavit by the plaintiff, filed in support of the application, stated that the two Samoan witnesses who were in Auckland m October had since returned to Western Samoa. Immediate Hearing Desired.

fn an affidavit opposing tho adjournment, Mr. Richmond stated that tho fixture for February 20 had buen made a final and peremptory one. Three Samoan chiefs who were witnesses for tho defendants were at present in Auckland. When it became known in Samoa that they were to be witnesses they were, he had been informed, threatened and abused by members of the Man until it was found necessary to bring them at ouce to New Zealand.

In view of threats against tlio witnesses' lives, the defendants felt, bound to keep them in New Zealand until the action had been disposed of. An application to have evidence taken on commission in Samoa had been opposed by the plaintiff and refused by the Court. Among tho defendants' witnesses were a number of Europeans occupying position!-, of responsibility in Samoa. They could riot be compelled to attend tho Court, and complete arrangements ' had been made to free them from their duties in order that they might be present in February. If tin' hearing was adjourned, all of thein might not be available.

Tho affidavit continued: "The frequent references which have been rraado by the plaintiff and by Mr. Hall Skelton to the present action in communications made t»v them to the newspaper press are likely to seriously prejudice tho defendants' case before it/ comes to trial, and as it seems a practical impossibility to prevent such communications from being published, the defendants aro anxious that the hearing be proceeded with forthwith,"

, The affidavit of a Samoan high chief, Ainu'u Tasi, of Sapapalii, in Savaii, one of tho islands of Western Samoa, who is at present residing in Auckland, stated: "I am a high chief of Samoa. I read and write English and can translate Samoan into English. "Towards the end of 1929 I agreed to como to Auckland as a witness in this action. This soon became known among tho members of the Mau, and very strong efforts wore made to persuade me not to go. Tho fooling was so strong against me that 1 could not have gone on living among my people. In addition to this I was lnfoiined by members of the Mau that if I persisted in my determination to give evidence for tho defendants, my life would bo in danger. For these reasons it was arranged by the agents for the defendants in Samoa that I and other witnesses should leave Samoa last December, and this we did. Lettei lrom Mau Representatives. On or about tho 13th December, 1929, as I was packing in readiness to go on board tho S.S. Tofua, a boy handed me a letter, a correct translation of which is as follows; SAMOA FOR SAMOA. Faleata Yaimauga, Vaimoso, December 13, 1929. To Lagolago and Ainu'u Tasi, Pesega Apia. Wo are tho representatives of the four seats of tho Mau of Western Samoa. Owing to tho honour and sacred powers conferred on us by tho largest part of Western Samoa wo are empowered to protect tho said honour and sacredness. Wo havo been notified that you wero going to New Zealand as witnesses against Taisi in his case against the New Zealand Herald. We therefore wish to convey to you these words:— If by any words which you may say in the Court case detrimental to the honour and sacredness of the Mau of Western Sam'Ja or the ' country— Or words detrimental to Taisi, the selected representative of the Mau of Western Samoa— It will bo upon you, together with any others who may do the abovementioned things, tho punishment from tho largest portion of Western Samoa —that is, put an end to,your lives; this is in conjunction with the previous punishment now still in existence. You are both no longer recognised as Samoans, because you both, together with others who have been treated likewise, are tho people who have betrayed tho country. And another matter you are both to reali'so this thing: The arm of Samoa is very long, thus enabling it to put its hands on both of you, regardless wherever you may bo in refugo in any corner of the world. This is tho notification to both of you. We are, (Signed) Namulauulu, S., Matautu. Leleua, S., Vaimoso. Autagavaia, Apia. Alipia, Lepca. ("Taisi" is the name by which Mr. 0. F. Nelson is known among the Samoans.) Threat Regarded Seriously. " The signatures on tho original letter were known to me. They were those of the four chiefs who were then representatives of the four centres or seats where members of tho Mau were gathered togetliei, these four centres being Matautu, Vaimoso, Apia and Lepea. These four chiefs, Namulauulu S., Leleua S., Autagavaia and Alipia, were at this time by the positions they held by election representative of the wholo Mau. I understood and believed then that the Mau would endeavour to carry out its threat and I still have that belief.

" On the same day, December 13, 1929, I was shown by another witness, Afamasaga, an exactly similar letter in which, however, he is described by the name of Lagojago instead of by his chiefly title or name.

" I have come to New Zealand at personal inconvenience leaving my wife and family for whose comfort and safety I am under all the circumstances greatly worried. "If I and other Samoan witnesses should be compelled to return now to Samoa and have to remain there for somo time before again coming to New Zealand we should be in great danger of violence and apart from that danger we feel certain wo should bo subjected to abuse and pressure of every kind to prevent our giving evidence. By reason of the Samoan methods of living and of the Samoan way of regarding these things such pressure and abuso would bo unendurable.

" In my opinion once this action has been decided the feeling against mo and other witnesses for the defendants will die down, but while this action remains undecided the feeling against us will persist." Proceedings in Chambers. Addressing His Honor in support of the summons for an adjournment, Mr. Hall Skelton said that since the fixture had been made a disturbance had broken out in Western Samoa. This was not the fault of the plaintiff. Eleven material witnesses for the plaintiff had taken to tho bush. The Mau had been declared a seditious organisation, and none of those witnesses could be obtained. Ono was in custody.

His Honor: Have you fried to get into touch with them ?

Mr. Skelton: That is impossible. Tho police are chasing them.

His Honor asked for tho names and addresses of the witnesses.

Mr. Skelton replied that he was unwilling to give the names. ' His Honor: The Court is not going to be humbugged in this matter. It is certainly not your fault that the caso has not been tried before, but it is time that it was tried.

Mr. Skelton said there was legislative authority in support of a refusal to givo the names and addresses of witnesses. His Honor: I know of none.

Mr. Skelton said lio was preparer! to give the names of his witnesses in New Zealand, but he did not wish to give tho others.

His Honor: Do you suggest that if you give their names they will be prosecuted or imprisoned? Mr. Skelton: Ido not know. His Honor's Requirements.

His Honor said that, ho would require to know the names and addresses of the missing witnesses, the nature of their evidence and tho dato when they would bo prepared to give it. Mr. Skelton: I can give only two of those particulars. Tho witnesses are all in tho hush. I know all their names, but I submit, that there is no Jaw to compel me to name my witnesses. Mr. Richmond: The grant of an adjournment is iri tho discretion of the Court, which can decide on such terms and conditions as will ensure that tho application is genuine and well-founded. Mr. Skelton: Wo are in the same position as the defendant. Once the names of my witnesses were known they would pet into trouble. His Honor: They belong io t.lio Man? Mr. Skelton: Unofficially they do. They are in fear of (ho police. If they came out they would all bo liable to arrest.

His Honor: That is ridiculous. T)o you tell mo that the Administration would persecute them? If they are arrested it will be for their misbehaviour

lately. Tho Court must bo satisfied that you cannot produco your witnesses and that they are material witnesses. I think tho matter must stand over until to-morrow morning.

Mr. Richmond: Tho difficulty is that tho application is utterly indefinite —for an adjournment sino die. No ono can foresee tho end of tho Samoan troubles.

His Honor: If they arc interminablo Mr. Skelton will not be able to go on with his case. Difficulties of Defendants.

Mr. Richmond: And in the meantime the Herald lias this millstone round its neck. Wo have witnesses whose lives havo been threatened by the Mau. We have to think of their wives and families.

His Honor: No doubt they would be protected by tho police, but your witnesses would have to go back when it

IS over. Mr. Richmond: We believe that when tho case is over the trouble will die down. If tho adjournment wero for ono month and the plaintiff wero required to pay all the costs eutailed, there would bo something in that. Difficulties may arise also as to counsel. But for this case ono of the defendant's senior counsel might have, been out of New Zealand at the present time. If our witnesses go back wo may not be able to secure them again. They cannot be compelled, and have como as a matter of honour and fairness to tho defendants. His Honor: Is there no means of taking their evidence hero ? Mr. Richmond: It would not bo fair to us to disclose our evidence beforehand. Wo have also two European witnesses from Samoa. Mr. Skelton: They arc on furlough. Mr. Richmond: Their furlough was arranged on the assumption that tho case was going on. His Honor: I have to accept Mr. Skelton's statement that certain material witnesses cannot bo here. The doctrine has been laid down that if either party, through no fault of his own, cannot call material witnesses he is entitled to an adjournment as a matter of justice. Missing Witnesses Essential. Mr. Richmond: The difficulty is tho indefinite nature of the adjournment. On the balance of hardship the fair thing is for tho plaintiff to discontinue. Ilis Honor: Wo cannot force him to do that. Mr. Skelton, do you say that you cannot go on without these witnesses? Mr. Skelton: \es. They are absolutely vital witnesses. Mr. Richmond: The trouble is that our evidence may be lost. Tho other sido has blocked us at every point. It would not let us lako evidence on commission in Samoa on tho ground that Mr. Nelson could not be present because of his deportation. We prepared accordingly; we have three native and two European witnesses in New Zealand. In further discussion March 20 was mentioned as a possible date for tho adjourned hearing. His Honor remarked, however, that this would clash with tho sittings of the Court of Appeal, opening on March 10. Mr. Richmond : lam in a difficulty that I cannot seo my way out of. Tho psychology of these natives has to be considered. If they went back to their own country they would bo subject to influences in a way that wo cannot reckon with. They have a genuine belief based on tho threat made to them by the four leaders of the Mau, that if they go back they will meet their deaths. It is no use mincing matters. We expect that tho limit of untrue evidence will, be given. The feelings of tho peoplo havo been aroused and that result is to be expected. His Honor: 1 must accept Mr. Skelton's statement that 11 of his material witnesses aro not available. I proposo to call upon him to file an affidavit by tomorrow morning, giving the particulars I

mentioned. Mr. Richmond: A good many statements about ln's witnesses are to bo found in Mr. Skelton's own communications to the press. In one of these it is said only three witnesses for the plaintiff aro left alive and unwounded. What was published in most cases consisted of Mr. Skelton's statements, which ho bad apparently prepared himself, not merely answers to an interviewer. Final Adjournment Suggested. Mr. Skelton: That is incorrect. I gave interviews in tho usual way. It is quite impossible for me to say when tho witnesses will be available. Mr. Richmond: They may be a year or two years in tho bush. Our three Samoan witnesses naturally are rather homesick; they would like to get back to their own country. His Honor: Surely there is some way of applying to tho administration for special protection for tliern ? Mr. Richmond: Even so wo should have to get them back and cannot compel them. His Honor: Suppose I grant an adjournment till May, the plaintiff to pay the costs. It would be to a definite date and no further adjournment would be granted under any consideration. Mr. Richmond: Tho witnesses for tho plaintiff, according to Mr. Skelton, are fugitives by reason of their disobedience to their country's laws. We do not know who they are, they liavo gone into tho bush. Because of that, it is said, the unfortunate defendants should have this millstone around their necks, and tho evidence for tho defence may bo completely lost. His Honor: Of courso, the case is ono of supremo importance. Mr. Richmond remarked that another aspect was tho effect on public opinion of tho propaganda which had been constantly put out about the case, bolh in New Zealand and in Samoa. Mr. Skelton: It is the other way about. Mr. Richmond said that tho chief Faumuina, of the Mau, ono of tho witnesses Mr. Nelson had had in Now Zealand, had gone back to Samoa from Auckland and a report of a speech by him had been published in Auckland that the 3 native witnesses for tho Herald were rogues and that they would bo put into Mount Eden gaol as soon as they arrived. Faumuina had apparently claimed that the plaintiff had practically won this case already. Mr.* Skelton: Faumuina denied that he said anything like that. There was no report of his speech. He blames an official for sending it out.

His Honor: I do not know who is responsible for that sort of thing, but if they are not careful they will find themselves liable for contempt of Court.

His Honor repeated his earlier statement that he would require Mr. Skelton to put in a sworn affidavit stating the names and addresses of the eleven witnesses, and the evidence which ho expected them to give. His Honor added that it might be necessary then for him to grant an adjournment, say, until May, ana perhaps subject to the payment of costs.

Mr. Richmond: There cannot be absolute certainty as to the date. Is it not the fairest course to grant a short ad journment to March, and, if the plaintiff cannot be ready, let him discontinue and issue another writ when ho can be sure of his witnesses ?

His Honor: 1 may have to dismiss the case lor want of prosecution. Mr. Richmond: Counsel have had to deal with an enormous amount of material, much more than anyone could carry in mind. It would be necessary to get it all up again. His Honor said he would require the affidavit, by 10 o'clock next morning: He would then decide the matter finally. Mr. Richmond said ho hoped His Honor's words regarding contempt of Court would have effect.

His Honor: People responsible for the publication of that sort of thing interfere with the course of justice, and proceedings may bo taken against them for contempt.