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Five defendants await their fate

NUKU΄ALOFA, Tonga (Matangi Tonga, March 30, 2011) - A seven-member jury in the Ashika trial retired at 3:11 pm today to begin their deliberation on their verdict in a trial of the ferry operator and other four persons, including the captain and the first mate, the former Managing Director of the Shipping Corporation of Polynesia (SCP) and the Acting Director of Marine.

Justice Robert Shuster took up to five hours in summing up the final part of the case at the Supreme Court in Nuku'alofa before the jury retired to start their deliberation in a closed room where they stayed until 5:00 pm.

The jury of three women and four men are expected to continue their deliberation on March 31.

Justice Shuster gave a detailed presentation of the Crown Prosecution and defense cases as well as the case against each of the five defendants. He also pointed to some evidence made by some witnesses in court, including evidence made by expert witnesses called by the Crown Prosecution.

Justice Shuster also put to the jury central questions essential for their consideration while deliberating on their verdict and advised that their route to a verdict should be based on questions raised by both the Crown Prosecution and the defense during the trial.

He directed to the jury that an essential question to ask was, "was the MV Princess Ashika seaworthy or not to sail"? That is for you to consider," he said.

He also asked was the Ashika so unseaworthy to sail on each of its five voyages as alleged by the indictments against the five defendants. "That is also for you to consider," he told jurors.

"Did the Shipping Corporation of Polynesia Ltd. and John Jonesse as Managing Director know of the deficiencies on the vessel? And did Jonesse as the controlling mind of SCP have prior knowledge of those deficiencies, is again a matter for you to consider."

He also asked: had the evidence proven that Jonesse received the list of deficiencies as he was the head of SCP.

Another issue for jurors was the issue of whether the Ashika was dangerous. This was a question of fact, he said, and pointed out exhibits presented in court including the list of deficiencies to consider in their deliberation.

"Can the defense rely on their defence that they sent the vessel to sea because it had valid certificates and before the deficiencies were fixed?" said Justice Shuster. "The Crown submitted that the defence hid behind this piece of paper."

He also asked was the death caused by the defendants being grossly negligent as alleged in their indictments.

"You should also ask yourself did Jonesse forge David Shaw's signature or not and did Jonesse use the document to deceive others? Was Jonesse aware he used a forged document in order to deceive others?" Justice Shuster directed the jury.

He also put to the jury, had the crew given passengers timely warning of the immediate danger on August 5, 2009. And if all passengers were woken up and assembled on deck and put lifejackets on, might the outcome have been different? And might the alleged victim be still alive?", Justice Shuster told the jury.

He told the jury that the defense had asked them to acquit the defendants because the prosecution had not proven beyond reasonable doubt to them to be sure of the charges against the defendants.

While the Crown had submitted that they had produced strong evidence and relied on direct and circumstantial evidence to prove the defendants are indeed guilty.

"It is your decision based on the evidence you have heard from both sides," he said.

"I know this is a difficult and emotive case but you must fulfill your duty according to the oath you took in order to come to a true verdict."

Justice Shuster directed to the jury to take as long as they wished in their deliberation.

The five defendants on trial are the Shipping Corporation of Polynesia Ltd., Acting Director of Marine Viliami Tu'ipulotu, former SCP Managing Director John Jonesse, the Ashika captain Viliami Makahokovalu Tuputupu and first mate Semisi Pomale.

They collectively face 30 charges that includes sending and taking and unseaworthy ship to sea in regards to the Ashika's five voyages with one similar count of manslaughter by negligence in relation to death of Vaefetu'u Mahe (22) in the sinking of vessel on August 5, 2009.

A total of 74 passengers and crew died in the sinking, including all of the women and children on board.

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