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Friday^ 2Nd Aipril, 1976. HER Lu.JESTY's ATTORKEY GENER.^Il

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Friday^ 2Nd Aipril, 1976. HER Lu.JESTY's ATTORKEY GENER.^Il ''4' fi'L EYMCE IK THE HIGH COURT OF JUSTICE 1971 R> Ho.3670 CBL'HldEftY DIVIBIOIM GROUR E. 'M':i:• Royal Courts of Justice, Friday^ 2nd aipril, 1976. fSA,» Before; • THE YICE-CH^iNCELEOR ROTAN TITO and THE COUHCIL OF LE;iDERS v. HER lU.JESTY'S ATTORKEY GENER.^iL IN THE HIGH COURT OF JUSTICE n nm 1971 r. N0..3670 GROUF H. Royal Courts of Justice. B Friday. 2nd April, 1976. Before: THE YICE-CH..NCELLOR ROTAN TITO and THE COUNCIL OF LE/iDERS D V. HER H'.JESTY'S ATTORNEY GENER.YL E (Transcript of the Shorthand Notes of The Association of Official Sherthandwriters, Limited, Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W,C,2,) MR W.J MOlIBRiiY, Q.C. MR J.R MjVCDONALD, MR L.A TUCKER and MR C.L FUxTLE (instructed hy Messrs Davies, Brovm and Co.) appeared on "behalf of the Plaintiffs. MR J.E VINELOTT, Q.C., MR P.L GIBSON and MR D.C UMOT (instructed "by The Treasury Solicitor) appeared on "behalf of the Defendants. EVIDENCE DAY TWENTY-SIX H 1. MR MOWBRilY: I must confess I hafe not done my homework today, my Lord, could we defer this until Monday? aCHE YICE-CHIMJOELLOR: Yes. MR VIMELOTT; We have only got half a day yesterday so I think it mi^t, perhaps, he as well if we made the corrections when we have the other half. THE VICE-CHiiNCELLOR: When we get half a day at a time we can amalgamate the two into one, so there is no need to talk ahout i'iM and EM as far as I am concerned. B MR MACDONALD: I think my learned friend wished to ask Professor Maude some more question. MR VINELOTT: I was going to ask Professor Maude some more questions hut I was going to isait until my friend had completed his cross- examination. I do not mind which we do. THE VICE-CHANCELLOR: Counsel can agree which course you wish to adopt. MR VINELOTT: I understand my friend would like me to do it now. PBOPESSOR H.E ILIUDE. Recalled Eurther examined hy Iffi. VInHIiOTT D Q Would you have P.7 Professor Maude. Xou were handed yesterday two documents, one called the Relationship between the Banahans and Gilhertese, P.7j and the other called Pre-administration contacts between Banaha and the Gilbert Islands, Do you rememherthat ? A, Yes. Q Can you tell my Lord how P.7 came into existence ? A, P.7 was written at the request of Professor J.W Davidson, E who was then Professor of Pacific History in the Research School of Pacific Studies at the Institute of Advanced Studies of the Australian National University, and he was contemplating the writing of a xfork on Ocean Island in conjunction with Dr. Derek Starr, and he asked me if I v;ould make some notes on the ethnic historical side X'/hich would form an introduction or a chapter 1 to this xfork. I prepared this very rou^ly and the draft had many pencilled annotations at the side with queries as to what he thou^t. It vras only a rou^ draft which I drew up at the time and I sent it to Professor Davidson who, owing to his preoccupation with other duties perhaps, vras not getting on v;ith ^s side of the work and he suggested that I should send this rou^ draft oriticismi and comment to Mr Tahuke Rotan, which I did so. Q Did you write a letter with it, accompanying it ? A. There ms a covering letter to it explaining that it was only a rou^ draft, Q What state was the draft in - a typed draft ? A, Typed hy myself, yes. Q Was it a clean draft, or were there any manuscript alter H ations ? ^A. My conception is - and this is only from rede-llection I could not he absolutely certain — that it was a photo—copy of the draft Xflrhich I gave to Dpofessor Davidson. PROF. H.E MA.UDE Further examined: Q?HE "VTCE-CHiiNGELLOR; A photo-copy of a typed draft ? A, Of a typed draft which I handed to Professor Davidson. A ME VIKELOTT: Was it all in typescript ? J.X9 Except for the marginal annotations. Q Did that document, P.7» represent your final considered view on the matters contained in it ? A, Oh no, definitely not. At that time the question of any litigatioh had not arisen at all, To my mind this was academic; the suhject of an ® academic study. I should not ha e liked it to have "been thou^t of as in any sense a final draft or for purposes of other than comment hy various other experts on the subject, people like Martin Silverman and other people who are experts"on Gilhertese and Banahan custom. Q What about P.7-ii-. Does that represent your final considered view, or not ? A, So far as my knowledge goes at the present moment, it represents my views on this subject, I prepared because it seemed to me that, as I had seen one or two excerts from this draft P.7 appearing in a magazine called The Pacific Islands Monthly, I felt I should spend a few weeks on preparing what I really considered to be as good as I could do on the subject, and that it would be only fair to send it to anybody who wished tdi have a copy. I sent one to Mr Tabuke Rotan, I sent another' D to the Ohief Minister of the Gilbert and Ellice Islands Colony, at his requQ?st, Q You say after this article or publication Pacific Island Monthly when excerts appeared. What was that ? A, They were just little bits and pieces out of it. Q Out of P.7 Out of P.7* E THE 'VTCE-^H/INCELLOR: Did they appear with your consent ? A, No, i was not asked for iny consent. MR 'VTNELOTT: V/hat was the context, or what was their setting in the Pacific Islands Monthly ? A.The general tenor of the article itself ? Q, They were in an article, were they ? A. It was an article, yes. Q By whom ? A. I have forgotten his name, but I think his name, subject to correction, is Bertram Jones. MR VINELOTT: I have no further questions, my Lord, MR MOWBRAY: I think that was re-examination, was it not ? THE VIOE-GHiiNGELLOR: Have you any questions you wish to ask on that ? MR MOWBEiLY: No, my Lord. THE VIGE-GHi'i.NGELLOR: Then, Professor Maude, you can be finally H released. Thank you for coming to give your evidende, you are now released. (The witness withdrexf) MR P.D I{LiCDOIT.lLD. Recalled Oross-examins bion continued "by Mr MiLGDONALD; Mr Macdonald, I want you to assume ti^ro things. Pirst of all, that you were acting as Banahan Adviser at the beginning of 19^7) and, secondly, that as such Adviver you had made up your mind that it was your duty to make sure the Banahans did not do themselves down. Making those assumptions, you would have wanted to he in full possession of the facts, would you not, so that you couldsee that they did notdo themselves down ? A, I have given very long consideration to this issue, my Lord, B and this is an issue on which I do not think it is possible to give a simplistic answer "Yes" or "No" as to the question of providing advice. What I would like to do, if I may, would be to summarise my views on various aspects of this very complex problem and then put forward my conclusions as to what I would have done. This mi^t take ten minutes, I do not know whether that is permissible to expand on those lines ? ME MilGDONlLD: I am anxious that you should have an opportunity of saying anything you want to say. If I feel that you sire straying from the ambit of the questions I am going to ask you T will say so. If you would like to start ? A, I think all I have to say is relevant to your questions. I think it was Sir Rlbert Macnamafa of the World D Bank who, taking about management problems, said in examining ' any particular problem what one should do is collect the facts, ahalyse the facts, and reach conclusions, which all sounds very simple. The first two stages are simple enou^, the thi3?d is not so easy. I think Oohnsel asked me yesterday what advice I would nhave given as regards providing an Adviser for the Banaban E community if I had been in a position of authority to do so. The first part of my answer to tha^t is I would first of all have endeavoured to collect and record the factors which I would regard as having to be taken into consideration in this case. Now Mr Macdonald has made three. I think they were that the Banabans should be given, or should obtain, a square deal in their negotiations; the second, I think, was that this was most important as they were selling the whole of the rest of their land; and the third was that it ^as important because they required funds for the rehabilitation of Rabi, Those are three considerations on what one mi^t call one side of the coin, but there are other considerations which I think have to be taken into account and I named some of them yesterday but I would like to run throu^ them again because there are'one or two additional ones.
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