Alisae v Salaka [1985] SBHC 6; [1985-1986] SILR 31 (4 April 1985)

1985-1986 SILR 31

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

ALISAE

v

SALAKA

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 113 of 1984

26 - 28 March 1985 at Honiara
Judgment 4 April 1985

Election petition - standard of proof where corrupt practices alleged - bribery - treating

Facts:

The petitioner brought this election petition alleging bribery and treating. The respondent maintained that the alleged bribe was actually customary compensation and that the alleged treat of beer was actually for a friend who used it to pay people to help rebuild his house.

Held:

1. Although an election petition is a civil action where corrupt practices are alleged the stricter standard of proof of the grounds to the entire satisfaction of the Court is required to uphold the petition. (Mamata andAnother v. Maetia Civil Case No. 115 of 1984 and In re Menyamya Open Parliamentary Election (1977) PNGLR 302 followed). (Tegavota v. Bennett (1983) SILR 34 and In re Moresby North Parliamentary Election No. 2 (1977) PNGLR 448 holding that only a balance of probabilities is required to uphold an election petition were distinguished in that those cases concerned only residential qualifications and not corrupt and illegal practices).
   

2. Giving rides to voters is a normal practice of long standing that would not avoid an election.

3. Although $20 would have been adequate compensation to the Chief's daughter for arriving late the respondent was known for his generosity and there was no evidence to suggest that the $100 was given otherwise then in accordance with custom. Hence there was no bribe c/s 69 and 70 of the National Parliament Electoral Provisions Act 1980.

4. In s.71(l)(a) of the Act which forbids treating, that is, corruptly providing food, drink or entertainment for the purpose of influencing the vote, the word "corruptly does not mean wickedly, immorally or dishonestly, but rather means with the object or intention of doing what the legislature forbids.

5. That the respondent supplied the cartons of beer by the quickest means possible while he was on a three day campaign a few days before the election accompanied by a campaign speech by a close friend substantially proved that the respondent was guilty of corruptly treating for the purpose of influencing votes clss 71(1)(a) and 69 of the Act.

Accordingly, the election was declared void under s.65(1) of the Act.

Cases considered:

Tegavota v. Bennett (1983) SILR 34
In re Moresby North Parliamentary Election No. 2 (1977) PNGLR 448
In re Menyamya Open Parliamentary Election (1977) PNGLR 302
Mamata and Another v. Maetia Civil Case No. 115 of 1984

Also considered:

Phipson on Evidence (12th ed.)

Robert Hughes for the Petitioner
The Respondent in person
Reginald Teutao for the Attorney General (amicus curiae)

Wood CJ: This is an election petition brought in this Court pursuant to s.81 of the National Parliament Electoral Provisions Act 1980 (hereinafter referred to as "the Act") and the Electoral Petition Rules 1976. The petitioner is Mr Lawrence Alisae who was a candidate for the Shortlands Electoral Constituency at the election held on October 24, 1984. The respondent is, Mr Peter Salaka who was elected member of the said constituency.

The petition contained numerous particulars of alleged offences and irregularities against the respondent but at the commencement of the hearing most of them were withdrawn. What is left of the petition reads as follows:

1. The winning candidate using Alcol vessel M.V. Clinton bought 5 ctns of beer and invited his supporters to proceed to Fauru with 1 x 200 litres of petrol. On arrival he announced to people of Smanago that there were 10 ctns of beer loaded on M.V. Baruku for them. When M.V. Baruku arrived at Shortlands the canoe from Samanago came across and collected the beers. Silveri Otuana acting indirectly on behalf of the candidate Peter Salaka supplied the beer to everyone in Samanago village and some from Toumoa village. Silverio Otuana was living in Honiara with Peter Salaka in the same house and a business partner of the candidate. Silverio is an influential leader in Fauru because of his brother was a chief of Samanago village and at times when the chief is absent Silverio Otuana acts on his behalf. The 10 ctns beer were consumed at the meeting house at Samanago when Silverio Otuana speaking on behalf of candidate Salaka.
   

2. On 22/10/84 Peter Salaka gave $100 to Sioni the Chief's daughter.

3. 1 x 200 litres of petrol was supplied to voters from Samanago-Toumoa under the supervision of Silverio Otuana. The candidates own fibre canoe transported the voters-from Samanago to Toumoa and back.
   

Evidence in support of these allegations has been given by the petitioner, Stephen Haiea and Remisio Aresi although the last named added little to the petitioner's case. The respondent however has made substantial admissions in his evidence. He accepts that he only had three days in which to campaign for the Shortlands constituency and that Silverio Otuana is a close business associate of his who lived in his house in Honiara where the respondent has his main place of residence. According to the respondent he gave a large party for Silverio on the eve of their joint departure for Shortlands and when they left by air they took with them 10 cartons of Fourex beer. This load of beer had to be off-loaded at Gizo as the plane had insufficient room to take it on to Shortlands. The respondent accordingly made arrangements for it to be taken on the M.V. Baruku to Nila from where it was collected later in a canoe by Silverio Otuana and Stephen Haiea and taken to Samanago.

Although the respondent admits that he paid for the 10 cartons of beer he has testified that they were for Silverio Otuana's personal use and that what Silverio did with the beer was entirely his concern. He understood that Silverio needed the beer to pay people to help him rebuild his house at Samanago, He was not present when Silverio Otuana dispensed the beer and made a political speech at Samanago. He agrees that he borrowed the M.V. Clinton from the Allardyce Lumber Co. to transport Silverio Otuana and his goods and accompanied them himself to Samanago. They had bought a drum of petrol and 5 cartons of beer which they took with them. According to the respondent they drank one or two cartons of beer on the way but in any case only one carton was his and the other four were Silverio Otuana's. He agrees that Stephen Haiea came out in a canoe to the M.V. Clinton with Silverio Otuana junior and that they took Silverio Otuana and his goods ashore including what was left of his beer which he says was only 3 cartons but that it was nothing to do with him.

As far as the allegation concerning the $100 given to Josephine Sioni he admits he gave her this sum of money which he explains was given to her in accordance with custom. He had arrived very late at the Chief's house with his party which included commoners who are not usually admitted to the Chief's house. He gave Sioni the Chief's daughter $100 by way of compensation for the inconvenience caused.

Before I proceed further with the facts in this case I must deal with a question of law concerning the standard of proof in election petitions, Mr Hughes has submitted that this is a civil action brought before a Civil Court and that the standard of proof to be applied is the same as for all civil actions namely on a balance of probabilities. In support Mr Hughes cited the case of Tegavota v. Bennett [1983] SILR 34 in which Daly CJ followed the test set out by Frost CJ in the case of In re Moresby North Parliamentary Election No. 2 (1977) PNGLR 448 in which the learned Chief Justice said at page 450:

"Accordingly, in a case such as the present where the issues are of real gravity the court should require clear and cogent proof so as to induce, on the balance of probabilities an actual persuasion of the mind that the candidate did in fact lack the required qualifications".

However both the Moresby case and the case before Daly CJ were concerned with residential qualifications and not as here corrupt and illegal practices. In the same year as the Moresby case Frost CJ set a different test in the case of In re Menyamya Open Parliamentary Election (1977) PNGLR 302 when he 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."

In Phipson on Evidence (12th Edition) at para 123 the learned authors say:-

"The degree of probability which must be established will vary from case to case. The degree depends upon the subject matter. A civil court when considering a charge of fraud will naturally require for itself a higher decree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court even when considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise a divorce court should require a degree of probability which is proportionate to the subject matter."

My conclusions from the cases cited are that where in an election petition allegations of corrupt or illegal practices are made then the standard of proof is as set out by Frost CJ in the Menyamya case i.e. as I said in the recent case of Loea Mamata and Another v. John Maetia (1985) Civil Case No. 115 of 1984 that if I am to uphold the petition the ground of it must be proved to my entire satisfaction and I must be sure that the ground has been made out.

To return to the evidence before me I will deal first of all with the allegation contained in ground 3 of the petition concerning the issue of free petrol to voters and the carriage of voters by canoe to the polling station. There is no credible evidence before me concerning the issue of free petrol even on a balance of probabilities and as far as giving rides to voters is concerned this has long been accepted as a normal practice at elections which would not usually be a ground for avoiding an election. I would not be able to uphold this petition on ground three.

I will now turn to ground two in the petition which alleges that the respondent gave Josephine Sioni, a Chief's daughter, $100. Bribery is a criminal offence under s 69 of the Act and the definition of bribery is to be found in s.70 of the Act. Bribery if of course a corrupt practice and if I am sure that the respondent gave Josephine Sioni who was an elector $100 for the purpose of her voting or refraining from voting at the general election then the election will be avoided in terms of s.65(1) of the Act.

The evidence depends entirely on that of Stephen Haiea who stated the following, inter alia:

"Peter Salaka arrived to campaign in the open air. After campaign Salaka and I went to Chief's house with Silverio Senior. The Chief is Bernard Piloa. We went there to have a few drinks with Peter Salaka's supporters. When we got there Peter called Chief's daughter Sioni and told one of his supporters to get $100 and give it to her. He gave her $100 cash as compensation for arriving late at night. I was present .... It was for arriving late at the Chief's house. It was about 8 pm and he had been expected at 4 pm. I don't know why it was $100. Everyone was surprised. The highest expected is $20."

It will be seen there was no suggestion as to what the money was for other than by way of compensation for inconveniencing the Chief's household late at night. Stephen Haiea in fact corroborates the explanation given by the respondent. The only question is why did he give as much as $100 when the most that would be given in such circumstances according to Stephen Haiea would be $20. On the other hand one aspect of the respondent's character which does clearly emerge in this case is his generosity. He is free with his money and hands it out liberally on many occasions. While the gift of $100 in the circumstances may be thought to be excessive there is no evidence to suggest that it was given otherwise than in accordance with custom and in the absence of any expert evidence as to the custom in Shortlands on this point I am not persuaded that I can in any way find that it must have been a bribe. This ground of the petition accordingly also fails.

The first ground in this petition deals with the subject of treating. S.71 (1) (a) of the Act reads as follows:-

"(1) The following persons shall be deemed to be guilty of treating within the meaning of this Act-

(a) any person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides, or pays, or promises to give provide or pay, wholly or in part, the expense of giving or providing any food, drink entertainment or provision to or for any person for the purpose of corruptly influencing that person, or any other person, to vote or refrain from voting at such election or on account of that person or any other person having voted or refrained from voting at such election;"

Again the evidence of Stephen Haiea is crucial to the petitioner's case. His evidence was that he was on the beach with Silverio Otuana junior when the M.V. Clinton arrived at Samanago with the respondent and Silverio Otuana on board. They went out to the M.V. Clinton in Stephen's canoe and transported 5 cartons of Fourex beer, Silverio Otuana himself and a drum of petrol to the shore in two trips. The Respondent gave the order, "Get 5 cartons of beer and put them in the canoe," but did not say what it was for. When they were ashore Silverio Otuana told him to call everyone to his house to drink the beer which Salaka had given them. When they came Silverio told them that Peter Salaka had given them the beer. Stephen said he opened and distributed the five cartons of beer and they drank it all. The next day acting on the respondent’s instructions Stephen went to Nila accompanied by Silverio Otuana junior to collect the ten cartons of beer from M.V. Baruku which respondent had told him was a free gift for the people of Samanao. He collected the ten cartons from the ship's hold and saw that each carton was marked "P/Salaka in big letters. They took the beer back to Samanago where a second beer drinking party in which more or less the same people as before took part. They were all voters on the electoral roll and they consumed eight of the cartons of beer. Two cartons were removed for Chrisanto Mule and Bari Evaristo who are two prominent members of the village. This second party took place in the village meeting house and everyone knew the beer came from Peter Salaka. Silverio Otuana told them that and made a political speech campaigning for the respondent. The election was nigh and it was part of the election campaign. The following day Stephen took the last two cartons to Toumoa village and left them there. This last incident was witnessed by the petitioner.

There is a clear distinction between treating and bribery in two respects, first as it affects the candidate, and secondly, as it affects the voter. In bribery there must exist a corrupt arrangement, but not so in treating, where votes are sought by a display of generosity. S.71 of the Act is drafted in similar terms to the United Kingdom legislation and commenting on that legislation dealing with this section Blackburn J said:-

“ .... corruptly there does not mean wickedly, or immorally or dishonestly, or anything of that sort, but with the object and intention of doing that which the legislation plainly means to forbid. In fact giving meat or drink is treating, when the person who gives it has an intention of treating ... and ... not otherwise and in all cases where there is any evidence to show that meat or drink has been given, it is a question of fact for the judge whether the intention is made out by the evidence which in every individual case must stand upon its own grounds.”

"Corrupt" means doing the thing which the legislature forbids. The question whether the intention was to influence the voter must depend upon the circumstances and the manner in which the refreshment was given, the time when it was done and very much upon the nature of the entertainment.

At the end of the day it is very much a question of credibility. If I accept the evidence of Stephen Haiea the petitioner has made out his case because the whole circumstances of the respondent supplying the villagers with at least 13 cartons if not 15 cartons of beer a few days before the election when he is on his own admission on a three day campaign coupled with an election speech on the second occasion in the Meeting House made by his close friend and confidant Silverio Otuana leaves no doubt that this was a case of corruptly treating for the purpose of influencing the votes of the villagers. That is the only inference which can be drawn from his evidence.

The respondent's evidence in rebuttal is that the beer was either his gift to Silverio Otuana in respect of the 10 cartons or belonged to Silverio Otuana in respect of the 3 or 4 cartons which he had bought in Shortlands. I find that I just cannot believe his story. Why would the respondent give his friend 10 cartons of beer after having just given him a party to which over 100 guests were invited? Why would he having done this deem it to be necessary to fly the cartons to Shortlands if possible but as it happened to Gizo and thence by quickest possible means to Shortlands. The obvious answer to that is that he needed the beer for his election campaign. If, as he says, Silverio Otuana needed the beer to pay men to help him build his house why was the beer all drunk at one party while an election campaign speech was made by Silverio who has only just left his own household? And indeed why did not this great friend and business associate not come to the hearing and give evidence on behalf of the respondent? I reject the respondent's evidence and find that the allegations made in the first ground of this petition have been substantially proved and that the respondent is guilty of treating within the meaning of S.71(1)(a) of the Act which is a corrupt practice in terms of s.69 of the Act.

In terms of s.65 (l) of the Act, "no election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent."

I must therefore declare the election to be void.

There will be a declaration accordingly and the court will certify that declaration to the Governor-General pursuant to s.82(3) of the Act with the result that a new election shall be held in accordance with such certificate.