Thugea v Paeni [1985] SBHC 5; [1985-1986] SILR 22 (14 March 1985)

1985-1986 SILR 22

IN THE HIGH COURT OF SOLOMON ISLANDS

In the Matter of the National Parliament Electoral Provisions Act 1980

And in the Matter of the Election Petition Rules 1976

THUGEA

V

PAENI

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 108 of 1984

12 March 1985 at Honiara
Judgment 14 March 1985

Election petition - bribery - standard of proof – charitable gifts at election time

Facts:

The petitioner brought this election petition on the grounds that during the campaign the respondent paid certain sums of money to people and at the same time suggested that they should vote for him and that the respondent paid the sum of $150 to the people of a certain village with the view of influencing their votes. The Respondent did not deny making the payments, but asserted that they were made not in view of the election, but according to his usual practice of helping out relatives and responding to fund raising appeals.

Held:

1. The standard of proof required in election petitions is that the judge must be reasonably sure that the ground has been made out. This standard falls just short of the criminal standard, but in application there would be no
practical difference. (In re Menyamya Open Parliamentary Election (1977 PNGLR 302 per Frost CJ followed). (see also Northallerton Election Petition (1869) 21 L.T., N.S. 113 per Willes J at p. 116)

2. Candidates who give out gifts at election time do so at their peril as they run the risk of being accused of bribery even if they are innocent, however, the distribution of charitable gifts to electors is not illegal. If the gift is really charitable it will not become bribery even if political capital is gained from it. (Halsbury Laws of England (4th ed.) Vol. 15 at P. 422 para. 774 followed).

Accordingly, the respondent was determined to have been duly elected.

Cases considered:

In re Menyamya Open Parliamentary Election (1977) PNGLR 302
Northallerton Election Petition (1869) 21 L.T., N.S. 113

Also considered:

Halsbury's Laws of England (4th ed.) Vol. 15

The Petitioner in person
Andrew Nori for the Respondent

Wood CJ: This is an election petition brought in this court pursuant to s.81 of the National Parliament Electoral Provisions Act 1980 and the Electoral Petition Rules 1976. The petitioner is Mr Alfred Thugea who was a candidate for the North Guadalcanal Constituency at the election, held on October 24, 1984. The respondent is Mr Stephen Paeni who was elected as member for the said constituency.

The grounds of the petition were that firstly during the campaign period the respondent paid certain sums of money to named individuals and at the same time uttered words suggesting that they should vote for him at the coming election. Secondly that he paid the sum of $150 to the people of Tumbosa Village in the said constituency with a view to influencing the vote of the villagers.

S.65(1) of Act No. 5 of 1980 reads as follows:

"(1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent."

It follows from the clear wording of this subsection that if the petitioner can prove that the candidate elected (respondent) paid certain sums of money to individuals and/or village communities for the express purpose of obtaining their votes at the subsequent election the respondent would be guilty of corrupt or illegal practices. S.69 states that it is a criminal offence to be guilty of bribery, treating or undue influence which is deemed to be a corrupt practice and s.70 spells out the different forms of bribery.

If the petitioner can prove his case then the respondent would be guilty of corrupt practices in terms of ss 69 and 70 and the election would not have been valid in terms of s.65(1)

The evidence before me as adduced by the petitioner is as follows:

(1) Mrs Mary Tabule who stated that the respondent came to her house during the election campaign and said words to the effect, "Come and collect this money so that you can vote for me" and gave her $2.

(2) Benedict Tagathairoe who stated that on September 25, 1984 at China Town, Honiara while waiting for a bus the respondent gave him $5 and said some words with reference to the election.

(3) Robert Sala who stated that the respondent handed him a cheque for $150 and a clock saying to him at the time, "You give to Mr Ono the cheque and the clock. This is my symbol and you know this is my symbol." The reference to his symbol was the pineapple he used for the election.

There was no independent evidence in the nature of corroboration of these witnesses but the respondent does not deny that he gave Mrs Tabule $2, Mr Tagathairoe $5 and Mr Ono a cheque for $150 and a clock. His version of these events is that in the case of Mrs Tabule she is a relation of his and he has on many occasions given her small amounts of money and small quantities of kerosene to help her out. On the day in question he was in a car with two others, Luke Tauko (DW 2) and Timothy Tatai (DW 3) when they stopped between the store and Mrs Tabule's house. Mrs Tabule asked them for money for sugar and the respondent gave her $2. He did not say anything whatsoever about the election. His evidence is corroborated in every way by Mr Tauko and Mr Tatai.

In the case of Benedict (PW 2) the respondent testified that Benedict's wife is a relation of his and that he gave him $5 for the children in accordance with custom from royalties received in respect of land belonging to the family line. He made no reference to the forthcoming election to Benedict.

In the case of the $150 cheque and the clock given to Mr Ono the respondent accepts the evidence of Mr Sala which was in no way in conflict with his own evidence that the gifts were in response to a request from the Chairman (Mr Ono) and Secretary (Ngelea) of the Tasiboko District Church Committee as part of a fund-raising activity. The request was in writing and has been produced marked Exhibit A.

An allegation in the petition concerning a certain Mr Nelson Matai was struck out as the petitioner was unable to adduce any evidence at all relevant to the accusation.

Mr Nori has drawn my attention to precedents dealing with the standard of proof required in election petitions. He quoted from the case of In re Menyamya Open Parliamentary Election (1977) PNGLR 307 in which Frost CJ said:-

"However, in this case before I uphold the petition, I am of opinion that the ground of it must be proved to my entire satisfaction, and that as Willes J. said, if I am not to be very sure I must at least be sure that the ground has been made out. It may fall therefore just short of the criminal standard, although in application I consider there would be no real practical difference."

The reference to Willes J is to be found in Northallerton Election Petition (1869) 21 L.T., N.S. 113 at p. 116 where he said, "The judge before defeating an election should be very sure. He ought not to say very sure, but ought to be sure; he ought to have reasonable assurance that the ground was really made out."

The essence of the petitioner's argument (as I understand him) is that the general circumstances surrounding the respondent's admitted gifts to Mrs Tabule, Benedict and the Tasiboko District Church Committee in the midst of an election campaign raises a grave suspicion of bribery and illegal practice. Although Mr Kapile's evidence added little to the petitioner's case it did indeed show that at the time people were concerned as to why these gifts had been made at such a time. Election candidates who hand out gifts at election time I would have thought do so at their peril and obviously run the risk of being accused of bribery and corruption whether they be innocent or not.

Having said that Halsbury's Laws of England (4th Edition) Volume 15 at page 422 para 1174 states the following:

"The distribution of charitable gifts to voters has always been allowed. On the other hand what are called charitable gifts may be merely a specious and subtle form of bribery. If a gift is charitable it will not become bribery because of the use made of it, even if political capital is made out of the gift; it is not possible by any subsequent act to make that which is legal at the time illegal and criminal."

The witnesses Mrs. Tabule and Benedict did not impress me at all. They may be ignorant innocents or scheming villains plotting to overthrow the sitting member for some real or imagined grievance. I just do not know. What I do know is that I find I cannot place much reliance on their evidence. In the case of Mrs Tabule because there are three witnesses telling me that she has lied one of whom, the respondent, has told me that Benedict also must be lying. There is no real evidence concerning the $150 cheque other than the suspicion of the petitioner and one witness as against which there is the testimony of the respondent which explains the whole affairs.

I cannot by any means say that I feel sure that the grounds for this petition have been made out for clearly they have not. The Court accordingly determines, pursuant to s.82(3) of the National Parliament Electoral Provisions Act 1980, that the respondent was duly elected. The Court will certify that determination to the Governor-General with the result that the election shall be confirmed.