Haomae v Bartlett [1989] SBHC 19; [1988-1989] SILR 35 (19 June 1989)

[1988-1989] SILR 35

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 61 of 1989

HAOMAE

v

BARTLETT

High Court of Solomon Islands
(Ward C.J.)
Civil Case 61 of 1989

Hearing: 30 May, 9 June 1989
Judgment: 19 June 1989

Election Petition - allegation of bribery - standard of proof - position of custom in election cases

Facts:

Following the election of the respondent at a general election on 22 February 1989 the petitioner brought an election petition on the grounds of three allegations of bribery. It was alleged that the respondent had given small sums of money to members of his electorate on three occasions during the election campaign. In respect of one allegation no evidence was led to support it. The respondent denied one allegation and in respect of the third, admitted giving the sum of $5 but claimed that giving and receiving of gifts is a part of his custom.

Held:

(1) In a civil case the degree of certainty required to prove the claim depends on the seriousness of the allegation. In the present case the burden was on the petitioner to satisfy the court on the balance of probabilities that the respondent committed an act of bribery. In deciding the degree of probability required the court must bear in mind that bribery is a very serious allegation.

(2) Where custom is raised as a defence to an allegation of an election offence the court must first decide on the evidence if such a custom exists and then decide if the act was done purely in pursuance of such custom or whether it was additionally or alternatively done for the improper reasons of an election offence.

Obiter: Any candidate would be wise to try and avoid any gifts of money during an election campaign and, in all cases where the circumstances of the giving themselves do not do so, he should make it clear that the gift is made in custom and ensure it is appropriate in scale to such gifts.

The court found that the allegations contained in the petition were not made out and dismissed the petition with costs to the respondent.

Cases referred to:

Alisae v. Salaka [1985-86] SILR 31
Tegavota v. Bennett [1983] SILR 34
In re Menyamya Open Parliamentary Election [1977] PNGLR 302
Joy v. Sualalu, [1985-86] SILR 209

Petitioner in person
Respondent in person

WARD CJ: This petition is brought under section 81 of the National Parliament Electoral Provisions Act, 1980, against the election of Alex Bartlett as member of Parliament for the Small Malaita Constituency.

At the general election on 22 February 1989, he received 908 votes and the petitioner, who was second in poll of five candidates, received 679 votes. He petitions on the grounds of three allegations of bribery contrary to section 70 of the Act.

"1. On February 12, 1989, at Komuo’ora Village, Small Malaita, Alex Bartlett gave an amount of five dollars ($5.00) to John Waihura with the intention to bribe Waihura to vote for him (Alex Bartlett).

2. At 7.45 a.m. on February 15, 1989, Alex Bartlett gave ten dollars ($10.00) to Francis Rex Suprepo at Waiaha Village, Small Malaita requesting the latter to line up the members of his clan to vote for him (Alex Bartlett).

3. On February 13, 1989 at Apalolo Village, Small Malaita, Alex Bartlett gave an amount of two dollars ($2.00) to Martin Maekai with the deliberate intention to bribe Maekai to vote for him (Alex Bartlett)."

However, no evidence was led on the second allegation and so it is dismissed.

By sections 69 and 65(1) it is clear that, if this Court finds any of the acts alleged were done by the candidate elected, the court has no discretion but to declare the election invalid.

The first allegation relates to a meeting, during the election campaign at Komuo’ora village, which three candidates attended.

After the meeting there was a feast and evidence was called that, after the feast was over, John Waihura went to the respondent and said words to the effect of "Don’t worry son" referring to a question he had asked in the meeting which he felt had caused the respondent some difficulty. The respondent then took $5 out of his briefcase and dropped it onto the ground near to the witness’ foot. As he did so, he looked into the witness’ eyes and said the words "Ohimola mama". Those words can mean many things but it seems agreed they meant something to the effect of "It is all right, father." John Waihura picked the note up and put it in his basket.

The whole incident was witnessed by Victor Hilesi a campaign worker for the petitioner who walked across. At that, the respondent moved away. Hilesi then asked Waihura about the $5 and was shown it by the old man.

Waihura stated that the effect of that note was to make him feel he would do anything to support the respondent although he agreed nothing was said to suggest it was a bribe.

The respondent gave evidence that he was approached by Waihura and asked to give some money to buy batteries for his radio. He explained that giving and receiving is a part of his custom and called evidence of that fact. When it had been suggested to Waihura that he had asked for money for batteries he denied both that and the fact he had a radio at all.

The respondent called one of his campaign workers, John Sanau, who said Waihura asked him the same thing first and, as he had no money and as he was related to both Waihura and Bartlett, he suggested Waihura asked the respondent. He saw him do so and saw the note passed over. Both he and the respondent denied the note was dropped and insisted it was simply handed over.

The second allegation is that, the next day, 13 February at Apalolo village, the respondent gave $2 to Martin Maekai. The witness described how the respondent gave him the $2 behind his back and instructed him to go out and tell his people to vote for the respondent.

A few days before the hearing of this petition, the respondent again saw the witness at the market and asked him to go to his office. Once there, he asked the witness to go away from Honiara so he could not give evidence and the petition would be withdrawn. He promised to pay money if the witness did so. Although the witness described this latter transaction in some detail in his evidence in chief and was cross examined on it, he never mentioned an actual sum having been paid to him until re-examination when he said it was $100 and produced the money.

The respondent’s case was simply a denial of payment of either the $2 or the $100.

I do not need to consider the second allegation any further. During a lengthy and detailed cross-examination about his relationship to the respondent and his status in the community, I formed a clear and distinct impression that the witness, Maekai, was not truthful. He manifestly attempted to adjust his evidence frequently to suit the situation. Similarly, his evidence of the receipt of the $2 and his subsequent conduct was totally unconvincing.

The petitioner’s case depends on Maekai’s account and I do not feel I can accept any of it as true. That allegation is rejected.

I pass therefore to the sole remaining matter; the events of 12th February.

The allegation is one of bribery and the petitioner has urged the court that, as this petition is a civil case, he needs only to prove the allegations on the balance of probabilities.

In the case of Alisae v. Salaka, [1985-86] SILR 31, Wood CJ, clearly distinguished between the standard applicable to allegations of corrupt and illegal practices and that necessary in petitions based on other matters. Whilst he accepted proof on the balance of probabilities, as laid down by Daly CJ in Tegavota v. Bennett [1983] SILR 34, in the latter cases, he specifically placed a more onerous burden on the petitioner in the former. He went on to state "......if I am to uphold the petition, the ground of it must be proved to my entire satisfaction and I must be sure the ground has been made out." This was based on the standard set out by Frost CJ in the Papua New Guinea case of In re Menyamya Open Parliamentary Election [1977] PNGLR 302, in which Frost CJ added that the standard he had described "may fall......just short of the criminal standard, although in application I consider there would be no real practical difference." I accept his proposition that the standard falls short of the standard in a criminal trial but I do not understand the latter part of the passage quoted.

I stated in the case of Joy v. Sualalu, [1985-86] SILR 209, the degree of certainty required to prove a civil claim, must depend on the seriousness of the allegation. Bribery is an offence under section 69 of the Act which carries penal consequences under that section and section 75. Where anyone is charged with that offence, the prosecution will need to prove the charge beyond reasonable doubt.

In a petition such as this, the purpose of which is to test the validity of an election, the same burden cannot be placed on the petitioner. If he satisfies the Court on the balance of probabilities that the respondent committed an act of bribery, the petition succeeds. I must bear in mind it is based on a very serious allegation when deciding the degree of probability necessary to establish it but to consider, as Frost CJ did, that there is no real practical difference between that and the criminal standard would be to place an unfair burden on the petitioner.

I do bear the seriousness of the allegation in mind and accept I must find proof that is sufficiently clear to support such an allegation.

The evidence before the court also throws up another important matter, namely the position of custom in election cases. The respondent adduced evidence that giving and receiving gifts is a very important part of the custom of Small Malaita and I accept that evidence. This was accepted in principal by the petitioner although he pointed out that such gifts were always given for a reason.

Custom plays a very important part in life throughout Solomon Islands and section 71(2) acknowledges this in excluding custom feasts in allegations of treating. However, with great respect to the legislators, the subsection adds nothing because the absence of any corrupt influence would always prevent the action being offensive to section 71.

The position must be the same in all allegations of election offences where the defence is that the action complained of was done under the requirement of custom. The court must first decide on the evidence if such a custom exists and then, if it does, decide if it was done purely in pursuance of such custom or whether it was additionally or alternatively done for the improper reasons of an election offence.

On the evidence before me, I am satisfied on a balance of probabilities that giving and receiving of gifts, including payment of cash, is part of the custom of Small Malaita. I also accept that, if the $5 was given to Waihura following a request by him to the respondent and simply because of that request, it is I customary gift. If I reach that position in this case, I must still consider whether, even as a customary gift, it was given to induce him to vote or refrain from voting at the election.

The evidence of the two witnesses called by the petitioner was that the note was dropped on the ground. Waihura added it was done by Bartlett as he had his back to him and when the respondent was standing on the floor of a house some two to three feet above the ground where the witness was standing. The witness explained that he knew the money was intended for him because the respondent fixed his eyes on him.

None of these additional facts was described by the witness Hilesi. He simply spoke of Waihura approaching the respondent and the respondent taking the money from his briefcase and dropping it. The respondent and his witness both said the money was given openly and normally.

Bearing in mind the seriousness of such an allegation, I cannot accept to the necessary standard of probability that this money was dropped on the ground. Had I found it was in the way described by Waihura, it would have been powerful evidence that this was intended as something other than a custom gift. However, I am not so satisfied and I accept, on the same standard, that the gift was the result of a request by Waihura.

In an election, any candidate will be subject to customary pressures to make gifts which he will feel he is obliged to observe. However, the giving of money is always likely to be misconstrued. In this case the sum was not large but, in the context of an old village man who had little other access to cash, its effect could be substantial. No hard and fast rule can be read into the provisions of section 70 but any candidate would be wise to try and avoid any gifts of money during an election campaign and, in all cases where the circumstances of the giving themselves do not do so, he should make it clear that the gift is made in custom and ensure it is appropriate in scale to such gifts.

It was an unwise move by an experienced candidate to give money in the circumstances of this case but I am far from satisfied it was made for any corrupt or illegal purpose and so the allegation is not made out.

The petition is dismissed and I shall certify to the Governor General under section 80(2) that Alex Bartlett is the lawfully elected Member of Parliament for the Small Malaita Parliamentary Constituency.

Costs to the respondent.