JUSTICE Robert Shuster in his final summing up of the Ashika trial on March 29 directed jurors that "who to blame for this tragic incident" was not for their consideration because their focus must be based entirely on evidence presented in court in relation to the charges faced by the five defendants.

After the lengthy trial at the Supreme Court in Nuku'alofa Justice Shuster completed the first half of his summing in three hours. He then adjourned to 9:00am on March 30, to complete the final part.

He made directions to matters of law, the role of the judge, jury, prosecution and defendants under the law of Tonga. He also made directions to the law in regards to manslaughter by negligence as well as Tonga's Shipping Act.

Judges of fact

In his summing up he directed jurors that they are the sole judges of the facts in the trial and he is the judge of the law and they must accept his direction on the law.

"When it comes to the facts of this case it is your judgement alone to decide a guilty or not guilty verdict and you must only base your decision solely on evidence presented in court and not of anything else," he instructed.

"But how could the prosecution prove guilt?" he asked. He said they the jurors must be sure of the evidence and when they are not sure then they should reach a not guilty decision. But he stressed their verdict must be unanimous.

He also reminded jurors that the five defendants' choice to remain silent and not give evidence in court does not mean they are guilty.

"It is their right enshrined by law because the burden of proof is on the Crown to prove the charges against each defendant beyond reasonable doubt," he said.

Obligation of owners

Justice Shuster told jurors that the Law of Tonga is strict in regards to ships in general and referred to under the Shipping Act Rules and Regulations. Tonga also adopts international rules and regulations.

He said the law states it is the obligation of the owners to keep the ship seaworthy and this applies to the owner, master and agents in preparing to send or to take a ship to sea. And the law stresses that no person shall take or send unseaworthy ship to sea.

He added the defence had argued that no person should be convicted in sending or taking an unseaworthy ship to sea because it was not their fault and it was reasonable under the circumstances.

The Crown on the other hand disagreed and said reasonable circumstance does not apply to the situation of the Ashika but applies to when a ship is hit by hurricane or damaged and had to be moved.

"That is for you to consider," instructed Justice Shuster to jurors.

Unseaworthiness

He also explained to jurors that the law also states that by looking at whether a ship is unseaworthy, one must look at materials the ship is made of, the condition of the ship's hull, the construction of the ship and the condition of the equipments onboard like watertight doors.

He added one must also look at the ship's safety equipment, the qualifications of a shipmaster and look at the number of qualification of the ship's crew.

"If it is not of a reasonable standard the law states that ship is unseaworthy," he said.

"The law is also clear that a ship must not proceed to sea without valid certificates including loadline and safety certificates, under any circumstances."

Justice Shuster is to continue the final part of his summing up on March 30.