Ha'apio v Keniasina [2011] SBHC 177; HCSI-CC 343 of 2010 (7 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 343 of 2010

BETWEEN

ALIKI TOKI'I HA'APIO
First Petitioner

-And-

ABRAHAM NAMOKARI
Second Petitioner

-And-

MICHAEL AHIKAU
Third Petitioner

-And-

ANDREW HANARIA KENIASINA
Respondent

Mr Afeau for the First, Second and Third Petitioners
Mr Fa'aitoa for the Respondent
Mr Firigeni for the Attorney General

Date of Hearing: 24th October 2011 to 1st November 2011
Date of Judgment: 7th December 2011

Judgment

1. The Respondent became Member of Parliament for the East Are'are constituency following National Elections held in August 2010. It is said he polled 1,000 votes. The First Petitioner was a candidate and he came second in the election polling 947 votes. The Second Petitioner was also a candidate and it is said he had the fourth highest number of votes, 792. The Third Petitioner was also a candidate who polled 628 votes. The main thrust of the Petition is that the Respondent, "...by himself or through his Campaign Managers, agents, supporters and or his family members, committed acts of bribery or corrupt or illegal practices by making payments in cash, by giving material goods and/or by making promises of material goods or cash in contravention of the provisions of the Act, including sections 66 and 71 of the Act". The "Act" referred to is the National Parliamentary Provisions Act [Cap. 87].

2. The Petition sets out "the circumstances" in which it is said the "acts of bribery or corrupt or illegal practices" took place. They are found in paragraphs 9 and 10 of the Petition. All are headed "Particulars of bribery....". The Petitioners seem to be limiting their allegations to acts of bribery rather than treating. There is no suggestion, in the detail of the acts complained of, of undue influence which, briefly, is defined as the use of or the threat to use, violence or restraint to induce or compel voting behaviour.

3. Section 70 of the Act says:-

"Any person who is guilty of bribery, treating or undue influence shall be guilty of a corrupt practice and liable to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment."

The definitions of bribery, treating and undue influence are found in sections 71, 72 and 73 of the Act. For the sake of completeness it should be mentioned that whilst section 70 obviously makes bribery, treating and undue influence illegal and therefore they must be illegal practices, section 78 specifically refers to "certain illegal practices" but they are not relevant here.

4. Section 66 of the Act states:-

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

In the recent decision of Fono v. Fiulua HCSI Case No. 335 of 2010 His Lordship Goldsbrough J made the point,

"Section 66 (1) does not suffer the qualification found in section 66 (2). That qualification is that the corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election must have so extensively prevailed that they may be reasonably supposed to have affected the result".

He went on to say,

"Support for the contention that the first subsection should not be so qualified can be variously found. The words of subsection 1 are clear and distinct. There is no ambiguity such as to require external assistance in their interpretation. There is an obligation to give effect to those clear and unambiguous words. There is no conjunctive expression between the two subsections. They speak of different subjects. Subsection 1 speaks of what elsewhere is described as 'specific' corruption, as opposed to subsection 2 which speaks of 'general' corruption. Subsection 1 is confined to actions of the candidate elected or his agent. Subsection 2 is not so qualified".

He found further support for that view from section 76 which, in describing the consequences of a conviction for a corrupt practice,

"...provides that in addition to any other punishment, the offender shall be disqualified during a period of five years from the date of his conviction— (a) from being registered as an elector or of voting at any election; and (b) from being elected as a member of the National Parliament or, if elected before his conviction, from retaining his seat as such member".

He reasoned,

"If the consequence of a criminal conviction for corrupt practice ...is to be disqualified from retaining one's seat, it would seem both improbable and illogical that a corresponding provision in relation to the consequences of an election petition based on allegations of corrupt practice would not be similar".

5. Goldsbrough J came to a different view from that expressed by His Lordship Faukona J in the case of Holosivi & Ors. v. Vahoe & Returning Officer for Malaita Outer Islands HCSI Civil case No. 223 of 2006. In the Holosivi case Faukona J considered the effect of section 9 of the Act. It provides:-

"No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non-compliance did not affect the result of the election."

Faukona J was of the view the petitioner must not only prove the commission of a corrupt practice but also that the result of the election was affected by the corrupt practice. I am persuaded by Goldsbrough J's argument to the contrary,

"The Act as a whole makes provisions for the parliamentary constituencies for the national parliament, for registration of electors, for the conduct of elections, for the hearing of petitions in in relation to such elections and provisions related thereto and consequential thereupon. Section 5 requires that the election of members of the National Parliament shall be in accordance with the provisions of the Constitution and this Act. As already set out section 66 (1) provides that an election shall not be valid if a corrupt or illegal practice is committed by the candidate or his agent. Thus is can be said that where an election can be shown to involve the commission of corrupt or illegal practice by the candidate or his agent, the election cannot be said to have been conducted in accordance with the principles of this Act".

6. The net result in this case is if the Petitioners prove the Respondent and/or his agents did commit one act of corrupt practice the election must be held to be invalid. It is not necessary to ask whether the corrupt act complained of and proven to have taken place affected the result of the election.

7. There is no doubt the burden of proof is on the Petitioners. It is a heavy burden too. There is some perceived confusion in that previous cases have been said to import the criminal burden of proof into civil matters. I do not believe that is what the previous cases say. In trying a civil matter the court does not suddenly adopt the persona of a tribunal trying a criminal case.

In the Vanuatu case of Willie Lop v. Judah Isaac Election Petition Case No. 05 of 2008 Chief Justice Lunabeck put it this way;

"The Petitioner has the burden of proof. The burden of proof necessary to establish whether an act of bribery or corrupt practice had been committed by the First Respondent is a civil standard of proof. That is on balance of probabilities and I agree with Oliver Saksak J in Taranban v. Boedoro (2004) VUSC 15. CC case No.149 of 2004 (3 December 2004) that the standard of proof is a higher standard than in the normal civil cases."

That may be thought to lowering the standard as set out in Maetia v. Charles Dausabea [1] but I do not think so because it is not a question of trying a civil case as if it were a criminal case it is simply accepting that a higher standard of proof is required. The reason why such a high standard of proof is required was set out by Frost CJ in a Papua New Guinea case[2],

"I have for myself found some assistance in the Canadian case to which counsel referred, Re Welland Election. It is true it was a case also of disqualification. There is a brief note of the case in The English and Empire Digest, Vol. 20 at p. 170, as follows:

"Before subjecting a candidate to a penalty of disqualification, the judge should feel well assured, beyond all possibility of mistake, that the offence charged is established. If there is an honest conflict of testimony as to the offence charged, or if acts or language are reasonably susceptible of two interpretations one innocent and the other culpable, the judge is to take care not to adopt the culpable interpretation unless, after the most careful consideration, he is convinced that in view of all the circumstances it is the only one which the evidence warrants his adopting as the true one."

Mr. Gregory submitted that the degree of proof falls short of proof beyond reasonable doubt. 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."

8. The allegations of "bribery" set out in the petition are of the Respondent and/or his agents handing over cash, MP3 players and solar panels. The Respondent does not dispute he handed out some cash, nor does he dispute his campaign managers handed out solar panels and MP3 players. What is said in general terms by the Respondent is the cash and other items were handed out in accordance with custom and/or to close family members or supporters. The implication seems to be if "gifts" are handed out for reasons of custom or to family members or supporters they cannot in any circumstances be said to be corruptly given. I do not accept that. The, admittedly obiter, comments of Ward CJ in Haomae v. Bartlett [1988-1989] SILR 35, seem to have been forgotten.

"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."

9. In Vanuatu it has been said [3];

"From the evidence heard by the Court it would seem that there are some persons who regard it as in order to request gifts from candidates in a general election. It also appears to be an assumption by some candidates that provided they are asked for gifts then it is in order for them to give gifts. Both assumptions are incorrect. A proper election is one in which voters vote for candidates of their choice uninfluenced by gifts or any expectation of gifts".

10. In the 2006 Samoan case Tautolaitua Farani Posala v. Paepae Kapelisu'a Chief Justice Sapolu and Justices Slicer and Shepherdson gave a judgment where they said:-

"The preamble to the Constitution states the combination of Christian principles and historic custom and tradition as the foundation of the Independent State of Samoa. Samoan culture, with its proud past, is not one frozen in time. It is a living culture expanding retreating and modifying in a process of response to human experience. Ideally while preserving its identity, it provides necessary answers to new challenges. The strength of the combination has corresponding weaknesses which create tensions with a modern voting system. Samoan culture is steeped in ritual with gift giving or exchange, its return and the obligations created, central to that culture. Matai is a proud title of status and respect. But gifts made during and in the run-up to an election in the guise of culture and tradition and the payment of moneys during the same period, are capable of corrupting the election process and poisoning both culture and the nation."

Later in the judgment the court refers to a text book on the subject:-

"In Rogers on Elections (20th Ed) at p.265 the author wrote:-

'The gist of the offences of bribery and treating is the corrupt inducement to the voter to vote, or refrain from voting, which may be given at any time, although, for obvious reasons it is usually given at, or shortly before, the election.'
And shortly afterwards he wrote:-

'There can be no corrupt practice without a corrupt intention."

The judgment continues:-

"The most important and essential element in the offence of bribery is proof of the corrupt intention of the person charged with committing the offence."

"An intention can never be proved as a fact; it can only be inferred from facts proven beyond reasonable doubt.

In each of the charges of bribery, which we are considering it is the prosecution who bears the burden of proof and who, if it is to prove the respondent guilty, has to prove beyond reasonable doubt that the accused person had a corrupt intention at the time he allegedly bribed the person named in the particular charge. In the Hereford Case (1869) 20 L.T. 405 it was held that "corruptly" means given with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting."

In Samoa, as in this jurisdiction, there are separate provisions in the relevant legislation which affect the result of elections. The court put it this way

"We mention now that there is a clear distinction in the Electoral Act 1963 between an illegal practice and a corrupt practice." In Barrow-in-Furness (1886) 4 O'M & H77 Field J pointed out the distinction between corrupt and illegal practices when he said:-

'A corrupt practice is a thing the mind goes along with; an illegal practice is a thing the Legislature is determined to prevent, whether it is done honestly or dishonestly'.

Rogers on Elections (op. cit) (at p.270) says:

'The intention of a person charged with bribery must be gathered from his acts. Mellor J in Launceston (1874) 2 O'M & H 133 said: 'I cannot go into any intention of the respondent, I must be governed by what he said and what he did, and by the inferences I ought to draw therefrom.' And this was followed in Kingston – upon – Hull (1911) 6 O'M & H 389, per Bucknill J: 'You cannot allow a man to say, 'I did not intend to do that which amounted to bribery' if when you look at all the things which he did there is only one conclusion to draw and that is that he has done that which he said he did not intend to do'

Rogers on Elections (op.cit) at p.270 also says:

'When there are two motives e.g. one kindness or charity and the other corruption, the question is which was the governing motive: see Salisbury (1883) 4 O'M & H 28; St George (1896) 5 O'M & H at 95; King's Lynn (1911)6 O'M & H at 182; Kingston-upon-Hull (1911) ibid 378; and East Nottingham (1911) 6 O'M & H at 302"

11. There appears to me no good reason why the same considerations that apply in Vanuatu with its Melanesian culture and in Samoa where "culture is steeped in ritual with gift giving or exchange, its return and the obligations created, central to that culture" should not apply to Solomon Islands. It is necessary therefore to look carefully at the evidence supporting and gainsaying the allegations in the petition.

12. Therein lies a difficulty. There were a considerable number of sworn statements filed in this case. In written submissions, counsel for the Respondent points to Goldsbrough J's comments in the Fono v. Fiulaua case. His Lordship was referring to the statements in that case and pointed out the blindingly obvious but frequently neglected point:-

"Several statements filed in these proceedings were made by people who neither speak nor write English and yet they were written and sworn in the English language without recital of the fact of being translated or read back to the deponent in any particular language. This causes the court some concern as it is not possible to be sure that the person speaking knows what was written down on their behalf. It is incumbent on anyone who prepares a statement for another that they ensure, if the statement is recorded in a language which the deponent does not habitually speak or read, that the statement is read over to the deponent prior to signing and swearing as true. If this does not appear on the face of the statement, it is incumbent on the Commissioner of Oaths to ascertain that the correct procedure has been followed.

There are good and substantial reasons for this practice to be followed. There are serious consequences to swearing false material and it would be wrong for anyone not to know exactly what it is they are swearing to. Sworn statements are important and significant documents and must be prepared and treated with respect. They could ultimately form the basis for a court judgment.

If a deponent cannot be said to understand the language of the statement and there is no evidence that it was translated for them, how can it be asserted that the words in the statement are that of the deponent?"

13. All the witnesses making sworn statements in this case are from Are'are. Not all were called to give oral evidence and be cross examined. The court was invited to look at statements from those persons who did not attend court and give oral evidence and attach such weight to those sworn statements as was thought appropriate. That places the court in an impossible position. None of the sworn statements carried any indication they had been read back and/or translated to the deponent in a language they readily understood. Unless a sworn statement deals with a formal issue only it is very difficult to accept it as reliable, and it is therefore of little use, if there is no evidence the deponent knew exactly what he or she was saying. There are some deponents in this case who are well educated, even professional, and where that is plainly the case they can be assumed to have known what it was they were swearing to. Their sworn statements can be taken at face value. This, unfortunately, gives rise to the impression that there are two classes of witness. There are those from the village who converse predominantly in language and occasionally in pidgin and those who use predominantly pidgin and occasionally, English. What is worse, it may lead to the perception those in the former group are unreliable witnesses because English or pidgin is not a language they use every day. The object of the provisions as to translation is to protect those witnesses for the very reason set out by Goldsbrough J namely, "There are serious consequences to swearing false material and it would be wrong for anyone not to know exactly what it is they are swearing to". The consequence is that cogent and compelling evidence may well not be considered by the court or carry the weight it should simply because there is no indication the witness had the statement read over and translated into a language they were comfortable with and not because the witness was seen as untruthful or unreliable. It is safer to rely mainly on the evidence given in court, largely in pidgin and sometimes in Are'are language with the assistance of interpreters.

14. The first ground relied on by the Petitioners is that the Respondent bribed Jeffrey Suhinana and Douglas Aihari with 50$. This is said to have taken place at Rara Village on polling day 4th August 2010. Jeffrey Suhinana and Douglas Aihari are cousin brothers and good friends. They told the court they were at Melody's house. Melody is married to Michael Awaruna. Also at the house was David Palusa. There is no dispute the Respondent came to the house and gave 50$ to David Palusa. Although Jeffrey Suhinana initially alleged the Respondent said words to the effect, "Here is 50$ for you all to vote", both he and Douglas Aihari agreed in cross examination the words spoken were more like, "Here is 50$ to buy smokes". They also agreed the money was given to David Palusa, who doesn't smoke, and that he gave the money to them. The Respondent's evidence was the house of Melody and Michael Awaruna was used as a "transit" house during the campaign. He gave the money to the boys as a gift and in appreciation for the support shown to him from the Awaruna household. I accept the circumstances as set out by the Respondent and that the 50$ was meant as a token of appreciation not as a corrupt inducement to influence any voting behaviour. This ground must fail.

15. The second ground alleges Job Teaminae (or Teamana) was an agent of the Respondent and that he gave 50$ to Eric Oaru and told him to vote for the Respondent. The Petitioners indicated in court the ground is not being pursued. In any event the only evidence available was the worn statements of Eric Oaru for the Petitioners and several others for the Respondent. For the reasons set out in paragraph 13 above I would have been unable to say I was entirely satisfied the ground had been made out. It is not a question of saying whether one witness was more truthful than the others, it is more a case of not being able to rely on the evidence of any of them to the extent necessary to say I am very sure the ground is made out. The only oral evidence was given by John Absolom Keniapisia and that was basically hearsay.

16. The Petition alleges as the third ground that John Absolom Keniapisia gave 300$ to Joshua Porawauri (or Parawauri) as an inducement to vote for the Respondent. There is no dispute about the basic facts. John Absolom Keniapisia was the Chairman of the Respondent's High Level Task Force. There is no doubt he was an agent of the Respondent. He admits he gave money to Joshua Porawauri. He disputes the corrupt intention alleged. He gave evidence about this incident as did Joshua Porawauri and Ontilla Oiropo. There was not a great deal of difference in the oral evidence given in court by the witnesses. Ontilla Oiropo's evidence was in Are'are language through an interpreter. She was a good witness and despite having her evidence interrupted by the ringing of someone's mobile telephone and by that crass someone then actually answering it and speaking to the caller, she was unfazed and clear in her recollection. She is Joshua Porawauri's mother. Both Mr Keniapisia and the Respondent are related to her. When Mr Keniapisia was on a campaign visit to her village she called him over to her home. She spoke about her plight in the village. She has a sick father and the family has very little money. She spoke to Mr Keniapisia for a while about her dire circumstances and he also spoke to her sick father. She asked him for money and he agreed to give her some. She did not feel able to leave the house because of her sick father and so later on she sent her son to where Mr Keniapisia was staying and he collected $300. It was shared out amongst those living in her house. Mr Keniapisia says he did not discuss politics or elections with his Aunt but he was moved by her plight and gave the family money to help them. Whilst it might be said Mr Keniapisia displayed a degree of naivety in handing out so much cash so close to polling day it cannot be said the evidence establishes a corrupt intention on his part. This ground too must fail.

17. The next ground of the Petition alleges a payment of cash to David Mauniamana by one Martin Hoasihere as an inducement for the former to vote for the Respondent. It is claimed Martin Hoasihere was a Campaign Manager and agent for the Respondent. The Particulars set out in the Petition say (paragraph 9(ii) i) "On 4/8/2010 a campaign manager of the Respondent known as Martin Hoasihere paid one David Mauniamana $100.00 cash to vote for the Respondent......". In cross examination Mr Mauniamana was asked how he knew Mr Hoasihere was a campaign manager. His answer was rather vague and can be summarised by saying he did not actually know he was, he just assumed from Mr Hoasihere's close association with the Respondent and the fact he was staying with other supporters of the Respondent, that he was a campaign manager. Mr Hoasihere denied he was a campaign manager and said as a Public Officer, he has been employed in the Ministry of Commerce Trade and Employment for over 20 years, he could not take part in politics. There was simply no evidence to support the assertion he was a campaign manager and/or agent of the Respondent. That begs the question of why such denial was not made in his sworn statement but he was adamant in cross examination and in answer to questions from the court that he was not a campaign manager. The ground as pleaded must fail. However, there is still the possibility of making a finding under section 66(2) of the Act of a corrupt practice taking place. Even so and even if I accepted Mr Mauniamana's evidence as 100 per cent accurate and truthful the reality is this one allegation would not establish that corrupt practices so extensively prevailed they affected the result of the election [4]. In the remaining grounds pleaded and pursued in the Petition there is no doubt the allegations all involve the Respondent or persons whom are admitted to be campaign managers and agents of the Respondent. In other words they are premised on section 66(1) of the Act. The end result is I need not make any finding of fact as to whether or not Mr Hoasihere paid money to Mr Mauniamana as an inducement to vote, i.e. whether a corrupt or illegal practice had taken place.

18. Ground 5 is not being pursued. The only evidence to support it was sworn statements. For the reasons set out in paragraphs 13 and 15 above, it would be difficult in any event, to have been able to say I was entirely satisfied the ground had been made out.

19. Ground 6 involves the events surrounding a visit by the Respondent to the village of Hunanawa on or about 28th July 2010. The court heard evidence from Koreti (or Gorety) Ha'apomae, Michael Wauki, Godwin Waenire (or Riai) and the Respondent. The basic facts are not disputed. A notice had been put up in the village announcing a visit by the Respondent and his campaign team. They arrived in the morning. The meeting ended about midday and the Respondent walked through the village back to the sea side to get to his canoe. In his evidence the Respondent admitted, as he was leaving the village, he handed out 50$ in cash to Michael Wauki and 50$ to a group of boys.

20. Gorety Ha'apomae gave evidence about the visit. She lives in the village and she knew about the meeting because everyone was talking about it. The Respondent arrived about 10 o' clock in the morning. Mrs Ha'apomae said there were lots of people but she could not remember how many canoes arrived. She went to the meeting but could not hear a lot of what was said because it was too noisy. Some villagers followed the Respondent back to the canoes and others went in front. At one point the Respondent stopped in front of Mrs Ha'apomae and he handed her 50$. In her sworn statement she has the Respondent saying, "This is for your tobacco". In evidence she said the Respondent told her in language words to the effect, here is 50$ vote for me. She repeated the words in language for counsel. No evidence was given as to what she said in court in language, in other words it was not translated, and so I have no idea what it was she said. Counsel seemed satisfied that what she said in language corresponded to what she had said in pidgin earlier. Gorety Ha'apomae told the court that 10 people received 50$ each. She confirmed those she named in the sworn statement were those who had been given money. There were 10 in all, including her. She had never met the Respondent previously, she did not know him.

21. Michael Wakui gave evidence. He said he was not related in line or in blood to the Respondent. It was put to him that he was related in marriage. His reply was to the effect he (the Respondent) was not married to any of his children. He said he had never been given money before by the Respondent. He confirmed that when the 50$ was handed to him nothing was said. His opinion was, "if a big man comes and gives me money it means I should vote for him". The only other persons present when the money was handed over were the Respondent and Gorety. He did not see the Respondent give out any other cash.

22. The respondent denied giving money to Gorety. He accepts he gave 50$ to Mr Wakui. He accepts he gave money to some boys. To the latter he said something along the lines of, "Smokes for you fellas". As to the former, the Respondent said Mr Wakui had previously been one of his campaign managers. The Respondent had "assisted" him on previous occasions and he was related to the Respondent's wife. The Respondent therefore felt he was obliged in custom to give Mr Wakui a gift of 50$. It was not put to Mr Wakui that he had been a campaign manager previously. Mr Wakui denied any familial relationship with the Respondent.

23. Of the remaining 8 persons to whom money was alleged to have been given only one was called to give evidence. Godwin Waenire told the court he was at the sea side (it was not entirely clear whether this was before or after the campaign meeting but on balance it was more than likely to be after) with his friends Phillip Awakari, Joe Wheatley and Joe Paulo. The Respondent gave him 50$ and told him to go and buy some smokes. He was the only one in the group of friends given 50$. He did not see the Respondent hand out any other cash. He amplified that statement by saying it would have been hard for him to see any other cash being handed out. Mr Waenire thought the money was for him and his friends to buy "smokes". That is what they did with the money. Nothing was said to them about voting.

24. Two other persons made sworn statements. For the reasons given earlier I am not prepared to lend any weight to that evidence. It is not a question of the truthfulness of the statements it is much more a question of the deponents knowing exactly what they were swearing to. There is no evidence of that.

25. If the Petitioners' evidence is accepted completely there would be no doubt the Respondent had committed acts of bribery. If the Respondent did walk through the village handing out 50$ notes it would be nigh on impossible to reach any other conclusion. It would matter very little he said nothing about voting, the clear inference would be he intended to influence voters by garnering popularity. As was said by Faukona J [5] and by Wood CJ [6], corruption;

"does not mean wickedly, immorally or dishonestly or anything of that sort, but with the object and intention of doing that which the legislation plainly means to forbid".

The legislation, the Act, plainly means to forbid inducing or influencing voters by giving them money or other valuable consideration [7]. It is difficult to see extravagant displays of generosity as doing anything other than influencing voters. The Respondent argues that gifts are a part of Are'are custom and that even if it is shown he was handing out lots of 50$ notes he would simply be following custom and he would not be "guilty" of acting corruptly. No evidence was introduced of previous visits he may have made to villages not connected to electioneering where he walked through the community handing out cash. There was evidence of gifts being part of custom but it was not generally thought to be custom, as Mr Michael Wahuru [8] put it to, "give all about". There is a real danger in both ignoring custom and upholding it as justification for all actions. In the Vanuatu case of Peter Salemalo v. Paul Ren Tari and the Electoral Commission of Vanuatu [1998] VUSC 46, Lunabeck ACJ explained the danger:-

"It is clear from the lessons of history that the price to be paid for failure to cherish and uphold the customs and traditions of Vanuatu, is a heavy one: the loss forever of a national identity and way of life.

The Representation of the People's Act [CAP 146] does not present an obstacle to the showing of due respect for custom. The two are not inconsistent. A candidate in an election cannot be found guilty of a corrupt practice if his only intention was to perform custom ceremonies. No inference of a corrupt intention ought to be drawn solely because a candidate received or offers custom mat in a custom ceremony.

On the other hand, suspicions as to his motives would naturally be aroused if he distributes an excessive amount to the people, or gives money or quantities of goods other than the customary mat, or if his presentation is not in accordance with custom in some other respect. In those circumstances he may well find himself in the position of having to rebut an inference that his real intention was to corruptly influence the voters. But where a candidate presents a mat in a custom ceremony and in the customary manner, there is no reason why this alone should foster the inference of a corrupt intention or cause his political opponents to go running to the Courts"

If the Petitioners' evidence is proved to be wholly accurate on this allegation the Respondent would have to rebut the inference that he was not acting strictly in accordance with custom in some respect.

26. Looking at the evidence it has to be said the Petitioners have not discharged the burden of proof. The only evidence of the Respondent handing some 500$ comes from Gorety Ha'apomae. No reason was put forward why she should lie and indeed she gave every impression in the witness box of being entirely truthful. However there was no corroboration and it is difficult to say I am very sure that all she says happened actually happened. The only corroboration of any cash being handed out comes from the Respondent. However his explanation puts a different complexion on the matter. There is room for doubt. In respect of the payment to Michael Wakui, I accept what he said in evidence. However the question was never put to him as to whether there was any relationship between him and the Respondent's wife. He was asked if he was an in-law, to which he replied no. The question was sufficiently vague as to the nature of any relationship and so the payment to Mr Wakui could have been as some perceived custom obligation on the part of the Respondent. That leaves the admission of the payment of 50$ to the group of young men. The admission by the Respondent partly corroborates Gorety Ha'apomae's version of events but her evidence is not sufficiently corroborated for the court to say it is sure, or very sure, the Respondent handed out a number of 50$ notes with a corrupt intention. This ground must fail.

27. Ground 7 of the Petition is set out in paragraph 9(i)b. It alleges on some unknown date the Respondent paid 50$ to Felix Tanikera and others during a visit to Sawarakau village. Mr Tanikera gave evidence in court. His was the only evidence given in court on behalf of the Petitioners about the allegation. The Respondent, and Andrew Rapemae, on his behalf, also gave evidence. The facts are not disputed except for some of the detail. There is no dispute the Respondent was electioneering with some of his campaign managers sometime before the election, probably in July. They called at Sawarakau village. It was about 10 or 11 o'clock in the morning. They arrived to find the village basically deserted apart from 10 or so men, women and children. There were probably seven adults and three children left in the village. All the other inhabitants had left to tend their gardens, go fishing or do other work. Paraphrasing the Respondent, it was considered by the team the campaign issues were too complex to be understood by elderly men women and children so they decided not to campaign. The Respondent introduced himself as a candidate in the forthcoming election and left. As he did so, he gave the ten people that were left in the village 50$ each. The dispute about the details relate to comments he made and to whom the first 50$ was given to. Mr Tanikera says when he was handing over the cash the Respondent told the recipients to vote for him. The Respondent denies this. The Respondent says he gave the first 50$ to Philomena Houau. Mr Tanikera says he was the first one to be given 50$. He later seemed to resile from this by saying Mrs Houau "came behind" but was given the first 50$ note.

28. The relevance of the last point is this. Philomena Houau is related to the Respondent. He says he gave her 50$ because she was his cousin sister. That is quite plausible. He then felt obliged to give everyone else who saw the payment an equal sum of 50$. This does not ring true. The Respondent did not hand a lot of money out in Hunanawa village [9] when he gave 50$ to Michael Wakui and Godwin Waenire. There were undoubtedly a lot of other people around at the time who must have seen or been aware of the gifts of cash. There is also the allegation involving David Palusa, Jeffrey Suhinana and Douglas Aihari at Rara village [10]. There were, according to the evidence, other supporters in the Awaruna house at the time and the Respondent does not suggest he felt compelled to give money to them because they had seen him hand cash to David Palusa. The Respondent did not give any evidence or explanation why the circumstances at Sawarakau village were different from those at Hunanawa and Rara. There is no suggestion that all of the 10 people, young and old, in the village were related to the Respondent. In fact the evidence put forward is to the contrary. There is, in short, no good reason put forward why the Respondent on his own evidence paid out $500.00 to all those persons in the village.

29. The Respondent says in any event he did not ask the villagers to vote for him. The suggestion seems to be if he did not articulate any request for their votes or if he said nothing at all about voting then he could not be said to have acted corruptly. As was set out in the Samoan case referred to earlier [11] a corrupt intent can be inferred from a person's actions, by what he does. It might be said all the Respondent was doing was showing how generous a man he was but his actions would have had some effect on his popularity. His generosity would be enough to induce some voters to vote for him even though they might not have been directly involved in the act of generosity. The Act does not require the recipient of the money or valuable consideration to be induced to vote etc. Section 71(a) is quite clear and unambiguous. It says the recipient can be the elector (who is induced to vote or not), any person on behalf of that elector or, "...any other person..".

30. There is also a very strong likelihood that the recipient of a cash gift who is unrelated to the donor in custom or by way of any accepted interpretation of genealogy would be influenced. The giving of cash was likely to be seen as creating a custom obligation which the recipients and/or their relatives would have to repay. As Pastor Silas Hoasirao said in his evidence for the Respondent, "Custom is not one way". The good Pastor also agreed that in custom "a favour" needed to be returned. It is not fanciful in the slightest to suggest someone who is given 50$ might feel compelled to vote for the person who gives them the cash.

31. In the end you come back to the words cited with approval in the Samoan case [12], "You cannot allow a man to say, 'I did not intend to do that which amounted to bribery' if when you look at all the things which he did there is only one conclusion to draw and that is that he has done that which he said he did not intend to do". The Petitioners have succeeded in establishing, to the necessary standard of proof, the Respondent committed at least one corrupt practice namely the handing out 50$ to each of those 10 persons he found at Sawarakau village on an unknown date in July 2010 in order to induce voters to vote or refrain from voting. There is no need to consider the rest of the grounds of the petition. As indicated earlier, if the Petitioners establish to the standard of proof required just one act of corrupt practice by the Respondent the election is not valid.

32. Having said that and without going into great detail, the handing out of MP3 players and solar panels to supporters (and family) would also be corrupt practice. The latter in particular for the following reason. The Respondents own printed Campaign Platform [13] (at page 477 of the Court book; page 45 of the document) carries the following under the heading "Expected Outcomes".

"7.8 That solar lighting is accessed through the current programme to 300 East Are'are families before the NGE (National General Election) and completed within 100 days after the elections."

The evidence from the Respondent and his campaign managers was unequivocal. It was to the effect that the solar lighting panels were going to be given only to supporters and their families. It was accepted by the Respondents' witnesses this was widely known in East Are'are. The promise of solar panels to the Respondents supporters and only them, could have, would have, influenced some voters. It matters not those supporters were committed, strong supporters and would not have been induced to vote for the Respondent. It matters not the solar panels were requested by the supporters. Voters who were not committed supporters of the Respondent would no doubt consider their allegiances' in the face of a promise of the possibility of being given a solar panel. As was said in the Sope [14] case in Vanuatu referred to earlier, "A proper election is one in which voters vote for candidates of their choice uninfluenced by gifts or any expectation of gifts".

33. The same comments apply to the MP3 players. There is the added fact, largely undisputed and certainly unexplained, of some of the recipients of MP3 players having them recovered by persons acting on behalf of the Respondent. This was said to have happened a while after polling day. The impression gained, and it was confirmed by what at least one witness said, is that when it was established the recipient did not vote for the Respondent the gift was retrieved.

34. The Petitioners succeed in their petition and they are entitled to costs, such costs to be taxed at a standard rate if not agreed. Any deposit or security for costs paid by the Petitioners shall be released to them.

35. In accordance with section 82 of the Act, I certify to His Excellency the Governor General the election of Andrew Hanaria Keniasina as Member of Parliament for the Constituency of East Are'are was not valid and that the said Andrew Hanaria Keniasina is not entitled to remain a member of Parliament.

Chetwynd J

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^[1] [1993] SBHC 29
^[2] Eville Bourne v. Manesseh Voeto [1977] PNGLR 298N108
^[3] Sope,and Ors v. Principal Electoral Officer & Ors Election Petition case No. 6 of 2009 per Dawson J
^[4] See paragraphs 4 and 5 above
^[5] Maina v. Magga HCSI Case No. 288 of 2006
^[6] Alisae v. Salaka (1985/86) SILR 31
^[7] Section 71(a) National Parliament (Electoral Provisions) Act [Cap.87]
^[8] He gave evidence on custom for the Petitioners
^[9] See Ground 6; paragraphs 19 to 26 above
^[10] See Ground 1; paragraph 14
^[11] See paragraph 10 above
^[12] See paragraph10 above
^[13] See pages 425 to 493 inclusive of the Court book
^[14] See paragraph 9 above