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Sika v Fasi [2022] TOSC 17; CV 78 of 2021 (15 April 2022)

IN THE SUPREME COURT OF TONGA

NUKU’ALOFA REGISTRY
ELECTORAL REGISTRY


CV 78 of 2021


IN THE MATTER OF: An Election Petition pursuant to Part V of the Electoral Act


BETWEEN:
SEMISI KIOA LAFU SIKA Petitioner
-and-
‘UHILAMOELANGI FASI Respondent


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr S. Etika for the Petitioner
Mr Clive Edwards SC for the Respondent
Trial: 7, 8, 10 April 2022
Judgment: 15 April 2022


CONTENTS

THE PROCEEDING
THE CLAIMS
THE LAW
THE ISSUES
THE EVIDENCE GENERALLY
THE FIRST CLAIM - $100

EVIDENCE

SUBMISSIONS

CONSIDERATION
THE SECOND CLAIM - GROCERIES

EVIDENCE

SUBMISSIONS

CONSIDERATION
THE THIRD CLAIM - $300

EVIDENCE

SUBMISSIONS

CONSIDERATION
THE FOURTH CLAIM - $400

EVIDENCE

SUBMISSIONS

CONSIDERATION
Result

The proceeding

  1. At the general election held on 18 November 2021, the Petitioner (“Mr Sika”) and the respondent (“Dr Fasi”) were among the candidates vying for election as the representative of Tongatapu number 2 constituency. Dr Fasi was elected. By his Election Petition filed on 16 December 2021, as amended in accordance with orders made on 3 March 2022, Mr Sika seeks a declaration pursuant to section 32 of the Electoral Act ("the Act") that the election of Dr Fasi is void on grounds that he committed bribery.

The claims

  1. More specifically, Mr Sika alleges that:

and that in each instance, Dr Fasi did so in order to influence the vote.

The law

  1. The relevant statutory provisions and other legal principles, many of which were comprehensively surveyed by Paulsen LCJ in Latu v Lavulavu,[1] may be summarised as follows:
“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.’"

[emphasis added]

(g) The standard of proof is the civil standard or the balance of probabilities.[7] The standard has been described as a ‘flexible test’ by which a court will be satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability: In re H (Minors) [1996] AC 563 at 586, per Lord Nicholls. ‘This does not mean that the standard of proof is any different than in other civil cases. The standard of proof does not fluctuate, rather the quality of the evidence required to meet what is a fixed standard may differ in cogency depending on what is at stake’.[8] Where s 21(3) has been invoked, the ordinary civil standard of proof, on the balance of probabilities, applies.[9] If the evidence is such that the Court considers that the fact in issue is more probable than not, the burden is discharged. But if the probabilities are equal, it is not.[10]
(h) As it will rarely be acknowledged by a Respondent that he/she gave a payment or valuable gift to buy votes, the existence of such intention will usually only be gathered from acts viewed against all the circumstances of the case. The Court cannot go into any intention of the Respondent nor be dictated by what the Respondent says he/she intended. The determination must be governed by what the Respondent said and did, and by inferences that ought be draw therefrom.[11]
(i) The closer that a gift is made to an election, the stronger must be the inference that it is intended to influence the vote of an elector: Latu v Lavulavu at [69].[12]
(j) A candidate for election may make a payment or valuable gift for mixed motives. He may, for instance, make a gift for charitable purposes. There is nothing wrong with that. But he may also make a gift to buy votes. That is bribery. There is no requirement that a wrong motive must be the dominant one. It will be sufficient for the purposes of ss 21(1)(a) if one significant motive was to influence the vote.[13]
(k) The Court is to inquire into and adjudicate on any matter relating to the petition in such manner as it thinks fit (s 31(4)).
(l) To that end, on the trial of an election petition, the Court is to be guided by the substantial merits and justice of the case without regard to legal forms or technicalities and may receive ordinarily inadmissible evidence if that evidence may assist to deal effectively with the case (s 35).
(m) If an elected candidate is convicted of bribery, whether before or after the relevant election, the Court shall declare the election of that representative to be void, and if/she he has already taken his/her seat in the Legislative Assembly, he/she shall be unseated by the Assembly (ss 21(5) and 32(1)).
(n) If any one of a number of allegations of bribery is proved, it will result in the automatic avoidance of the Respondent’s election and the Court will not be concerned to weigh the relative importance of the conduct or allow any excuse. [14]

The issues

  1. There is no issue in this proceeding that each of the claims involves a gift allegedly given within three months of the election. Therefore, if Mr Sika can establish that any of the gifts were given by Dr Fasi (directly or indirectly, that is, by himself or by another on his behalf) (“the first issue”) to or for any elector or for any other person on behalf of any elector (“the second issue”), then by operation of s 21(3), any such gift (other than to those excluded by s 24(3)) will be deemed to have been given for the purpose of influencing the vote, that is, a bribe. In that event, it will be for Dr Fasi to establish the contrary, that is, that any such gift was not given for the purpose of influencing the vote (“the third issue”).

The evidence generally

  1. Mr Sika gave evidence and called ten witnesses. Dr Fasi gave evidence and called four witnesses. All primary evidence was directed to be filed by way of affidavit. Most of the deponents were required for cross-examination during the trial.
  2. In assessing the credibility of the witnesses called in this proceeding, I have been mindful, as Paulsen LCJ observed in Latu v Lavulavu at [12], that the concept of credibility encompasses the two principal notions of truthfulness and error and that a witness can be truthful but mistaken. Credibility has also been explained as involving:[15]
“... wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
  1. In cases such as the present, there can often be a temptation for witnesses to defend ‘their candidate’ even to the point of being overzealous in the face of clear contradictory evidence. There were shades of that sentiment displayed in this case and although I did not observe any witness to have intentionally sought to mislead the court, I have found, for the reasons discussed below, that some of them were mistaken on material aspects of their evidence.
  2. Mr Sika’s affidavit contained a summary of the evidence to be given by his other witnesses. He was not a first-hand witness in relation to any of the claims. All but two[16] of Mr Sika’s other witnesses were required for cross-examination. As a general assessment, I found that the quality of their evidence, particularly under cross-examination, ranged from clear and credible to confused and confusing.
  3. Dr Fasi gave evidence and called four other witnesses. As the particulars of the claims suggested, the most prominent among those other witnesses was ‘Epele Sekeni. In my assessment, Dr Fasi and ‘Epele were impressive witnesses. Throughout their cross-examination, they gave clear, measured and consistent evidence, none of which was damaged in any material respect. I found that both presented as honest witnesses who gave reliable evidence. Therefore, and subject to any specific qualifications in the consideration of each of the four claims below, where the evidence of Mr Sika’s witnesses conflicted with that of Dr Fasi and his witnesses, particularly ‘Epele, I preferred the latter.
  4. Both counsel provided helpful, written opening and closing submissions, which included analyses of the evidence. I have carefully considered them all. However, in each claim below, and for the sake of some economy in these reasons, summaries only are set out of their key submissions.

The first claim - $100

Evidence

  1. Siosaia ‘Ahokovi (also known as ‘Vatu’) is the President of the Kumi Hufanga’anga Kava Club in Haveluloto. When he was called to give evidence, and to affirm his affidavit, as filed on behalf of Mr Sika, Siosaia said that he had sworn an earlier affidavit in relation to this matter which was prepared by a different lawyer. Mr Etika explained that that had occurred before he was engaged by Mr Sika, but he was unable to explain why that affidavit had not been discovered or why it was not being relied upon at trial.
  2. In his affidavit filed by Mr Etika, Siosaia deposed that one or two days before the election, he and two other ‘fellow kava drinking mates’ were performing maintenance and paint works at the clubhouse, when he heard someone call his name from the side of the road. He turned around and saw that it was Dr Fasi (or ‘Pingi’ as he was also known) and ‘Epele Sekeni. He was not acquainted with Dr Fasi but he knew ‘Epele as a ‘kava drinking mate’.
  3. Siosaia went out to talk with them. Dr Fasi was seated in the driver’s seat of the vehicle while ‘‘Epele was in the passenger seat behind. While they were talking, ‘Epele asked Siosaia what he and the other workers were having for lunch that day. Then, Dr Fasi tucked cash into Siosaia’s hand and told him to buy food with it. Siosaia thanked Dr Fasi for ‘the treat’ and Dr Fasi and ‘Epele drove off.
  4. When he returned inside the clubhouse, Siosaia discovered that Dr Fasi had given him $100, comprising five $20 notes. Although he was appreciative of the gift, Siosaia deposed that it came as a surprise to him because he was not acquainted with Dr Fasi nor had he received any similar payments or gifts from Dr Fasi before that day. Siosaia said that he felt guilty and regretted accepting the money as he had been a strong supporter of Mr Sika during past elections.
  5. Siosaia also deposed that since Mr Sika issued the Petition last December, he had received threats from ‘Epele about revealing what had occurred with the cash to Mr Sika and that ‘Epele had demanded that Siosaia swear an affidavit to deny the statements he had given. Siosaia said that he 'did not fall to the threats’.
  6. During cross-examination, Siosaia gave the following further evidence:
  7. In re-examination, Siosaia’s version about receiving the money changed again. He referred to he and five others including Taniela Kaufusi being outside the clubhouse when ‘Epele and Dr Fasi (Pingi) handed him the cash. When asked what he did with the money, Siosaia said that shortly after ‘Epele and Dr Fasi left, Numa arrived with their lunch and so they spent the $100 on lunch the next day.
  8. Taniela Kaufusi is the carpenter for the Kumi Hufanga’anga Club. He was one of the workers performing the maintenance and paintwork at the clubhouse on 16 November 2021. He gave evidence that he heard someone outside the clubhouse calling for Siosaia. He recognised the caller as ‘Epele Sekeni. Taniela looked up from inside and saw a van parked outside on the road adjacent to the southern end of the clubhouse. He saw ‘Epele and Dr Fasi in the van. He then saw Dr Fasi give some money to Siosaia. Taniela was not acquainted with Dr Fasi but he knew ‘Epele. He considered it strange for Dr Fasi to give money on that day because he had not donated any money to the club before.
  9. During cross-examination, Taniela denied that ‘Epele was a member of the club. He estimated that it was about five metres from the clubhouse to the roadside where Dr Fasi’s vehicle was parked. When Siosaia went out, he had his back to Taniela. Yet, Taniela said he could see the front seat of Dr Fasi’s vehcle and that the driver’s door and the rear door where ‘Epele was sitting were open. He rejected the suggestion that it was ‘Epele who gave Siosaia the money. He also said that the cash given by Dr Fasi to Taniela comprised five $20 notes. When he was asked about how the money was spent, Taniela said that Numa had already brought their lunch and that they had consumed it before Dr Fasi and ‘Epele came.
  10. During the course of his evidence, albeit in the context of a different claim, Dr Fasi was asked to describe his relationship with ‘Epele. He said that ‘Epele was ‘many things’ to him, including a friend and a colleague, that ‘Epele had supported his election campaign and that he trusted ‘Epele. Dr Fasi added, however, that he made sure his team only said things during his campaign that were true.
  11. In relation to this claim, Dr Fasi gave evidence that on 16 November 2021, he and ‘Epele had recorded a radio program around 2 p.m.. Afterwards, they drove to Haveluloto to drop ‘Epele at his home. On the way, ‘Epele asked Dr Fasi to take him to the clubhouse because Vatu (Siosaia) had called him[18] the night before to come and see the new paintwork. And so, Dr Fasi drove them to the clubhouse and parked on the road outside. ‘Epele called out to Vatu who came out to the van where ‘Epele was sitting in the back seat. After greeting them, Vatu talked with ‘Epele. Dr Fasi was listening to the radio as he was not interested in their club business talk. However, as they were about to leave, he heard ‘Epele say to Vatu words to the effect of buying some lunch for the painters. He did not see any cash being given because he was looking to the front. Dr Fasi denied ever speaking with Vatu or giving him anything.
  12. During cross-examination, Dr Fasi was asked whether he’d seen ‘Epele giving cash to anyone during this time close to the election other than the $100 the subject of this claim and $400 the subject of the fourth claim discussed below. Dr Fasi said that they were the only times he saw ‘Epele give cash to anyone. He hastened to add that on no occasion did ‘Epele mention Dr Fasi’s name as associated with the money or that it was being paid on his behalf.
  13. ‘Epele Sekeni gave evidence that it was he who gave the $100 to Vatu for him and the other members of the Hufanga’anga Tonga Kava Club, who were carrying out the painting work, to buy some lunch. He deposed that on 15 November 2021, the day before his visit, at 6:05 PM, Vatu telephoned him and asked him to visit the clubhouse to see the painting work. On 16 November 2021, sometime after midday, and after they had finished a radio program, Dr Fasi was driving ‘Epele back to his home. ‘Epele asked Dr Fasi to take him to the clubhouse on the way to see Vatu and the other workers. When they arrived, ‘Epele called out to Vatu. ‘Epele was sitting in the back seat on the clubhouse side. Vatu came out and stood by the vehicle next to where ‘Epele was sitting. During his discussion with Vatu, ‘Epele asked about the painting and Vatu pointed to some work near the clubhouse door. ‘Epele thanked him for their work. He then asked Vatu whether he and the other workers had had any lunch. Vatu said they hadn't and so ‘Epele gave Vatu $100 to buy lunch. He described the gift as "a private club arrangement and was not paid for the purpose of inducing or bribing Vatu to vote for the Respondent".
  14. In addition to the phone records referred to above, copies of correspondence passing between counsel for the parties on this issue were also exhibited to ‘Epele’s affidavit. On 11 January 2022, Mr Edwards provided Mr Etika with details of the telephone numbers of both Vatu and ‘Epele and a copy of the relevant call records which had been discovered. Mr Edwards wrote, relevantly, "We take the opportunity to inform you of our instructions on this allegation against the respondent. Vatu was not interviewed by you, the Petitioner or Soni (Kele’a employee) yet the Petitioner falsely details a conversation by Vatu and the Respondent's body action [sic] in the car". In his response on 20 January 2022,[19] Mr Etika conceded Dr Fasi’s version on this issue.
  15. During cross-examination, ‘Epele was challenged about not being a member of the Hufanga’anga Tonga Kava Club. He said that he was in the sense that the club did not have any formal documentation for membership and that anyone who attended and made donations, as he had done, was considered a member. He denied giving Vatu five $20 notes. He explained that when he gave Vatu the cash, he had $300 worth of $50 notes in his tupenu. He took out what he thought was one $50 note but later saw that he had given Vatu two $50 notes. He agreed that $100 for lunch for three workers was a large amount in Tongan tradition but he did not think it was too much and he considered ‘the return to be greater’ which he explained as his appreciation for the work the men were doing. He also felt he had a responsibility as a member of the club to give money for the workers’ lunch. He agreed he had not given a similar gift to club workers before.
  16. In terms of the amount given relative to his income, ‘Epele explained that, at that time, he earned approximately $800 per week teaching night classes (referred to further below).
  17. He denied that Dr Fasi had given any money to Vatu. He denied calling Vatu the next day about the money. He did call Vatu in December 2021 after the present dispute had arisen and asked him ‘what was the story’ about this complaint. He said that Vatu told him it was not a lie. ‘Epele tried to talk to Vatu about it but he described Vatu as having ‘different views’. He denied saying anything to Vatu about lying or to say that the money was from him and not Dr Fasi.

Submissions

  1. Mr Etika submitted, in summary, that:
  2. Mr Edwards submitted, in summary, that:

Consideration

  1. During his oral closing submissions, Mr Etika conceded that Vatu was ‘shakey’ in his evidence and that he was ‘not an impressive’ witness. He also submitted that the evidence of Taniela should be preferred over that of Vatu. I agree with the first concession which was rightly made.
  2. Siosaia (Vatu) was agitated and overly defensive throughout his viva voce evidence, even during his re-examination by Mr Etika. His untenable denial of calling ‘Epele the day before the visit, in the face of the TCC phone records, and his varied and confused attempts to downplay that fact reflected poorly on his credibility. His evident exaggeration about 'Epele having threatened him did not assist, particularly in light of 'Epele’s physical condition referred to below.
  3. There are also objective elements of implausibility about Siosaia’s account of Dr Fasi giving him the money. According to Taniela, when Siosaia went out to Dr Fasi’s vehicle, Siosaia had his back to Taniela. Therefore, it is unlikely, in my view that Taniela would have been able to see who gave Siosaia anything. More importantly, however, if Siosaia was given the money by Dr Fasi, then as Dr Fasi was in the driver’s seat, it is more likely that Siosaia would have had to have walked around to the driver’s side of the vehicle to receive the money. There was no clear evidence of that. The evidence in fact was more consistent with Siosaia being on 'Epele’s side of the vehicle, that is, closest to the clubhouse. That, in turn, makes it more likely, in my view, that it was 'Epele who gave Siosaia the cash.
  4. The inconsistency between Siosaia’s evidence about he and the other workers not having had lunch and Taniela’s evidence that they had already had their lunch was the final instalment in my assessment of Siosaia’s evidence as unreliable. That inconsistency also cast doubt over their evidence about the denominations of cash given.
  5. Dr Fasi’s evidence on this issue was entirely undamaged in cross-examination and I accept it in full.
  6. Given his apparent significance in this case, I paid special attention to all of 'Epele’s evidence and how he gave it. As alluded to above, and in stark contrast to Mr Etika’s adverse, conclusory characterisations of 'Epele and his evidence (supported by only scant reference to the evidence), I found 'Epele to be an impressive witness who gave clear and consistent evidence throughout. When he was challenged on any perceived inconsistencies either within his own evidence or viz á vis the evidence of other witnesses, 'Epele gave credible explanations and was able to put relevant events into their proper chronological context. One example on this claim was his evidence in relation to Vatu calling him the day before. His evidence, too, was unshaken during his cross-examination. I was left with no reservations about 'Epele being a witness of truth.
  7. That assessment is not affected by the amount he gave. He initially intended to give only $50. He accidentally gave $100. But in any event, as Siosaia and Taniela said, there were a total of about five workers there. Moreover, there was no evidence of 'Epele making any reference to Dr Fasi or the election when he spoke with Siosaia and gave him the money. Had Siosaia and the others not been doing any work at the club, the potential for an adverse inference would have been greater. However, on the accepted evidence, and in the uncontroverted context of the work being performed, the only reasonable inference available is that it was given in appreciation of that work.
  8. Neither is my assessment 'Epele’s evidence affected by Mr Etika’s accurate observation of the evidence that 'Epele did not get out of the vehicle to go and look at the painting work inside the clubhouse. During his evidence in relation to 'Epele allegedly threatening him, Siosaia described 'Epele as (in the English translation) ‘problematic’. What he meant by that became evident when 'Epele entered the court to give evidence. As Mr Etika mentioned in his submissions, 'Epele patently suffers from a physiological (or neurological) disorder (similar to that exhibited by victims of motor neurone disease) for which he required the aid of a crutch to walk (which he did quite slowly), and displayed limited control of his other limbs. In that context, that he did not get out of the vehicle, but instead asked Siosaia about the painting and was directed to some work near the doorway, is entirely understandable and was consistent with his evidence that the reason for visiting the clubhouse that day was the invitation by Siosaia to inspect the work.
  9. Finally, there was no evidence, nor any attempt by Mr Etika to cite any evidence, to support his submissions that ‘everyone knew’ ‘Epele was the Respondent’s ‘leading supporter’ in Haveluloto or that it was ‘Epele’s ‘practice’ in the days and weeks leading up to the election to give money or valuable gifts to others in promoting the political interests of Dr Fasi. Accordingly, those submissions must be rejected.
  10. For those reasons, I am satisfied, on the balance of probabilities, that it was 'Epele who gave Siosaia the $100, as a member of the club, in appreciation for the work being done and to assist the workers in buying their lunch. It follows, and I find that 'Epele did not give the money for or on behalf of Dr Fasi.
  11. Accordingly, as Mr Sika has failed to establish the first issue in his favour, the first claim fails.

The second claim - groceries

Evidence

  1. Kevin Toto resides at Haveluloto and is a primary school teacher. He is also a member of the Community Police there, stationed at base 11 (Talipaea). Kevin gave evidence that on the evening of 3 November 2021, when he was on duty with others, Tipiloma Fatongia arrived at the base, handed Kevin a box of groceries and said that they had been ‘contributed by Pingi Fasi from surplus funds from night classes’ to be distributed among the community police bases at Haveluloto to ‘rejuvenate themselves from the exhaustion of dusk till dawn watch hour’. Tipiloma also told Kevin that when he went to another base, the officers there told him that they would be voting for Mr Sika, but nonetheless, Tipiloma still left a box of groceries with them. Kevin said that he and the other officers at his base all knew that the gifts were for the purpose of attracting their attention to the upcoming election and that Dr Fasi was a candidate but that they also knew that they are at liberty to vote for whomever they wished despite the gift.
  2. Kevin denied the suggestion put to him by Mr Edwards that Tipiloma would give evidence that he told Kevin the groceries were from ‘the education committee’, and opined that Tipiloma would be lying.
  3. Lopeti ‘Aloua was a member of the Haveluloto community police stationed at base 2 (Haletaulo). He gave evidence that on the night of 3 November 2021, while on duty with other officers, Tipiloma arrived with a box of groceries and told them that it was a gift from ‘the representative’ for the community police and that similar gifts were being distributed to all the bases in Haveluloto. Lopeti understood the reference to ‘the representative’ as being Dr Fasi. The basis for his understanding was not explained. He said he was not acquainted with Dr Fasi but knew that he was running for Tongatapu 2.
  4. Lopeti was friends with ‘Epele on Facebook. Shortly after Tipiloma left, Lopeti had the following Messenger exchange with ‘Epele:[20]
Lopeti: hey what's the big thing. Convey our appreciations to the representative for providing the tea items so that we get a share of.
‘Epele: Bro, is some leftover coins from the night class committee and the night classes have finished and the dr. asked that it be used to buy some sugar for the community police for he was sympathetic of the tireless efforts of the community police did from 8 till daylight.
  1. Lopeti further deposed that he understood that:
  2. The bases for Lopeti’s understanding of the matters described in subparagraphs (b), (c) and (d) above was not explained.
  3. Lopeti added that after the election, in February 2022, during the two-week Covid-19 lockdown, ‘Epele and Tipiloma attended at his community police station base and gave $1,000 cash which they described as 'empowerment money' from Dr Fasi.
  4. During his cross-examination, Lopeti denied that Tipiloma said anything about surplus funds from the night class committee. He also estimated the value of the groceries in their box at about $100.
  5. Sitiveni Kaufusi was also a member of the Haveluloto community police. He was stationed at base 10. He also gave evidence that in the first week of November 2021, he was on duty with other members at the station when Tipiloma Fatongia arrived shortly after nightfall with a box of groceries and handed it to them. Sitiveni deposed that Tipiloma said that the groceries were ‘from the representative, ‘Uhilamoelangi Fasi who is also known as Pingi’.
  6. Sitiveni was not acquainted with Dr Fasi. To his knowledge, this was the first time Dr Fasi had made an ‘offering’ to the community police base 10 since it was established. Sitiveni knew that Dr Fasi was running as a candidate for Tongatapu 2 although he had hardly seen Dr Fasi around the Haveluloto area in recent years.
  7. It also occurred to Sitiveni, he said, that the groceries were meant to influence the officers to vote for Dr Fasi. He described what occurred as being "common practice" at that time of an election year when "candidates do everything they can in their power to influence the voters vote, which include giving away a valuable gift such as this". The gift did not change Sitiveni’s vote.
  8. During his cross-examination, Sitiveni added to his evidence of his conversation with Tipiloma. He said he asked Tipiloma ‘which representative?’ to which Tipiloma replied ‘Pingi’. He said that Tipiloma did not mention anything about surplus funds from the Poako Committee.
  9. Dr Fasi confirmed that he was one of the teachers of the night classes for students who were preparing for examinations. The classes were organised by the Tongatapu 2 Poako Committee. At the end of the classes for the year, the committee had leftover funds of ‘a bit over $1,000’. During a meeting of the committee, which he, ‘Epele and others attended, the Chairperson suggested that the funds be used to purchase groceries for the community police. Dr Fasi and the other committee members supported the proposal. Other committee members then purchased the groceries and boxed them up. ‘Epele was tasked with arranging the distribution of the groceries because he knew someone who had a pass to permit movement after curfew. Tipiloma Fatongia’s name was not mentioned then but Dr Fasi said he ‘understood’ that Tipiloma was instructed to deliver the groceries from the committee to the community police posts and to advise them that they were from the Tongatapu 2 Poako Committee. Dr Fasi was adamant that there was never any mention within the committee of the groceries being distributed in his name nor did he ever ask that they be given on his behalf.
  10. ‘Epele gave evidence that in October 2021, he and Dr Fasi were among the teachers providing night classes for students preparing for their annual examinations. The night classes were being operated by the Poako Committee. Towards the end of October 2021, the country was in lockdown from 8 PM to 6 AM due to suspected Covid-19 cases. The Community Police were on duty throughout the night until the curfew was lifted. Once the classes had finished for the year, the Chairperson of the committee, Sinai Tu’itahi, proposed that leftover committee funds, of a little over $1,000, be used to buy refreshments to support the Community Police posts. The committee members, including ‘Epele and Dr Fasi, agreed. Funds were withdrawn and groceries purchased. Committee members packed the groceries into boxes for all the community police posts in Tongatapu 2. He said that ‘the instructions given to them from the committee were to tell the Community Police posts that the groceries were from the Tongatapu 2 Poako Committee’. ‘Epele and his wife transported 12 boxes for the 12 bases at Haveluloto and two bases at Tofoa to Tipiloma who was on duty as a security guard at the Parliament compound. He repeated the instructions to Tipiloma, in the presence of his wife, namely, to tell the Community Police posts that the groceries were from the Tongatapu 2 Poako Committee. After he had finished delivering the boxes, Tipiloma contacted ‘Epele to confirm that he had done so and that he had told each of the Community Police posts that the assistance was from the Tongatapu 2 Poako Committee. To be sure, ‘Epele asked some of the community police at bases 8 and 10 who, he said, confirmed that Tipiloma had told them that the groceries were from the Tongatapu 2 Poako Committee.
  11. During cross-examination, ‘Epele denied ever telling anyone that the groceries were from Dr Fasi. In relation to his message exchange with Lopeti ‘Aloua, ‘Epele did not know why Lopeti had initially thanked him or asked ‘Epele to convey thanks to ‘the representative’. ‘Epele explained that his message was part of a group chat in which he was trying to communicate that the groceries had come from the night class committee. In further explanation for his reference to ‘the dr. asked...’, ‘Epele repeated that it was the Chairperson who proposed the idea and that Dr Fasi was among the eight members of the committee who supported the proposal. He also agreed that Dr Fasi had mentioned sugar as part of the groceries to be purchased. However, he denied ever instructing Tipiloma to tell the officers at the bases that the groceries were from ‘the representative’.
  12. Liliani Tu’itahi is a teacher and another member of the Poako Committee of Tongatapu 2. She deposed that the Chairperson of the committee, Sinai Tu’itahi, is currently in New Zealand. Liliani confirmed that Dr Fasi and ‘Epele were among the teachers who were engaged by the committee to conduct night classes. After the night classes finished at the end of October 2021, there was some surplus funds, which she too recalled as being a little over $1,000. The Chairperson suggested that the funds be used to buy refreshments for the Community Police posts to show support for their work during the Covid-19 curfew conditions at that time. She said that "we supported the idea". Liliani confirmed that the groceries were not given on behalf of Dr Fasi or for any political purposes including bribery. I understood from her other evidence that the reference in her affidavit,[21] to Dr Fasi not being ‘involved in the decision making’ as meaning that he did not alone make the decision to distribute the groceries.
  13. As noted above, Tipiloma Fatongia works as a security officer at the Legislative Assembly. He deposed that on 3 November 2021, ‘Epele asked him whether he could distribute groceries to the 12 bases in Haveluloto and two bases in Tofoa within Tongatapu 2. He agreed to do so because his vehicle had a permit to operate in Haveluloto during curfew and he was also one of the base leaders. That evening, ‘Epele brought Tipiloma 14 boxes of groceries and told him that they had come from leftover funds of the Poako (night class) Committee to show appreciation for the Community Police performing night duty during the lockdown period. After he finished work that evening at about 11 pm, Tipliloma distributed the groceries to each of the bases and explained to the officers that they were from leftover funds of the Poako Committee. He did not say that the groceries were from Dr Fasi or for Dr Fasi’s campaign.
  14. Tipiloma was cross-examined via AVL from his hospital bed. He confirmed that he knew Kevin Toto, Lopeti ‘Aloua, Sitiveni Kaufusi and all the bases in Haveluloto. However, he said that when he arrived at Kevin’s base at Talipaea, he gave the box of groceries to Tevita Vailea. Tipiloma rejected Kevin’s evidence as to what he said. He denied Lopeti’s evidence likewise. He also denied Sitiveni’s later evidence about asking Tipiloma ‘which representative’ and explained that he did not have time that night for conversations as he had 14 boxes of groceries to deliver. Tipiloma reaffirmed that on each occasion, he told the officers at each base that the groceries were from surplus funds from the night class committee.

Submissions

  1. Mr Etika submitted, in summary, that:
  2. Mr Edwards submitted, in summary, that:

Consideration

  1. On this claim, Mr Sika’s case is founded primarily on what Kevin, Lopeti and Sitiveni were told by Tipiloma, and secondarily, on ‘Epele’s message to Lopeti.
  2. I found Tipiloma to be a credible witness who gave firm and consistent evidence. One particular aspect of his evidence I found compelling was that he did not have time that night for conversations with any of the officers because he had 14 boxes to deliver after his work shift finished at 11pm.
  3. By comparison, each of Kevin, Lopeti and Sitiveni gave slightly different versions of what Tipiloma told them about the source of the groceries. It would be odd for Tipiloma to have referred to Dr Fasi by different terms or names such as ‘the representative’ when he did not use that term at all during his evidence. Kevin’s evidence that Tipiloma added that the groceries were to ‘rejuvenate themselves from the exhaustion of dusk till dawn watch hour’ was a flourish, the language of which, did not seem to me to be consistent with the direct and plain language Tipiloma used during his evidence. Further, Kevin’s evidence that Tipiloma told him that when he went to another of the community police bases, they told him that they would be voting for Mr Sika, but nonetheless, Tipiloma still left a box of groceries, was unlikely for a man who was in a hurry to deliver boxes to 14 different bases in the middle of the night. Those accounts were not put to Tipiloma in cross-examination as required by the rule in Browne v Dunn.[22] However, it may be said that where a trial is conducted on affidavits as the evidence in chief, and those affidavits are directed to be filed sequentially, Dr Fasi and his witnesses were given an opportunity to respond to any allegations within the affidavits of Mr Sika’s witnesses with which they disagreed. Of course, the efficacy of that course depends on the assiduousness of counsel in ensuring that the responding witnesses are made aware of the relevant contents of the opposing affidavits.
  4. I also note that while Lopeti and Sitiveni denied that Tipiloma said anything to them about the groceries coming from surplus funds of the night class committee, Kevin deposed that Tipiloma did say that.[23]
  5. Accordingly, I prefer the evidence of Tipiloma and find it more likely than not, that he told the officers at the bases that the groceries were from leftover funds of the Poako Committee and that he did not say that they were from Dr Fasi.
  6. But even if I was satisfied on the evidence that Tipiloma did say that the groceries were from Dr Fasi, that would not be the end of the analysis.
  7. The first element of s 21(1)(a) directs attention to ascertaining whether the Respondent gave, directly or indirectly, by himself or by any other person on his behalf, any money or valuable gift. That requires evidence that the Respondent gave the money or gift himself or it was given by another for him. On its proper interpretation, the second limb requires actual or inferred knowledge and assent on the part of the Respondent to the money or gift being given by that other person on his behalf. Otherwise, if a supporter gave money or a gift to a voter without any knowledge or authorisation by the candidate (or even contrary to the candidate’s express instruction not to do so), a candidate could be found guilty of bribery. That, in my view, is not a result Parliament may be presumed to have intended.
  8. The posited interpretation of the requisite mental element for an offence of bribery in s 21 is supported by the text of other subsections therein, which speak of acts such as procuring, engaging, promising, advancing, paying and knowingly paying. By definition (and expressly in the case of the last from ss (f)), such acts can only be performed directly with knowledge or intention, or indirectly, with assent.
  9. That interpretation is also consistent with the decision alluded to by Paulsen LCJ in Latu v Lavulavu, ibid, where his Honour stated:
“[123] Section 32(1) speaks of the Court being satisfied on the trial of an election petition that a candidate has ‘been guilty of an offence’. This raises an issue as to the correct classification of the offence in section 24(1) and whether the offence is one where mens rea is required. In this case I have no doubt that Mr. Lavulavu knowingly and intentionally made the payments and so the issue is not one that need concern me but for future cases I note the discussion on the issue in Re Wairarapa Election Petition (supra) at page 114-119.”[24]
  1. Wairarapa was concerned, as Paulsen LCJ at that part of his judgment, with the New Zealand equivalent of s 24 of the Tongan Electoral Act which prohibits campaign spending in excess of a specified sum, and which, in New Zealand, falls within the category of offence known as corrupt practice. There, the Electoral Court concluded that the offence was not one of absolute liability but rather strict liability, and, at 119, stated: [25]
“The whole object of this provision is to stop the candidate from spending money on advertising expenses beyond the sum of $5000. In that sense it is an absolute control which ought not to depend upon whether the candidate knew or intended to incur expenditure which would inevitably exceed the amount. It is the total sum which is in issue and not the purpose or intention of the candidate, whether honest or not. On the other hand, we do not say that if the candidate is able to show a complete lack of intent and of fault that he should nonetheless be and remain liable. We conclude, therefore, that this is one of those offences which, because of the essentially regulatory and controlling nature of the provision, justifies the interpretation that proof or an inference of mens rea is not required on the part of the Petitioner or the prosecutor, but that the defendant can escape liability by showing an absence of fault.”
  1. In relation to the mental element, or mens rea, of any criminal offence, the Election Court also drew a distinction between offences of the kind thereunder consideration and traditional corrupt practices, such as bribery,[26] which is in very similar terms to s 21 of the Tongan Act. The Court referred[27] to such other offences in Part V of the New Zealand Act as requiring, either expressly or by necessary implication, some aspect of intention or knowledge. In particular, it was observed that the definition of bribery includes the purpose of influencing the vote, which ‘clearly requires a subjective and not an objective consideration of the actions and mental state of the alleged offender’.
  2. Here, there was no evidence or suggestion that Dr Fasi gave the groceries himself.
  3. Mr Sika’s case is that the groceries were given by Tipiloma on behalf of Dr Fasi because Tipiloma allegedly said they were from Dr Fasi. However, that is not evidence that the groceries were in fact from Dr Fasi or that he intended or authorised them to be given on his behalf. Mr Sika’s case necessarily requires a further extrapolation, namely, that Tipiloma gave the groceries at the direction of ‘Epele and that in providing the groceries to and instructing Tipiloma as what to say in relation to where they came from, ‘Epele was acting on behalf of, meaning with the knowledge and consent of, Dr Fasi. In my view, the evidence does not support that contention.
  4. Apart from the controversy about what Tipiloma told the officers about the source of the groceries, the only other evidence of substance was the message from 'Epele to Kevin in which he referred to ‘the dr.’. However, when read in full and in context, I am satisfied that 'Epele accurately conveyed that the groceries had come from the committee’s leftover funds and that Dr Fasi had asked for the funds to be used for the benefit of the community police. I do not consider that the message derogated from the evidence of the committee members about how the committee as a whole supported the Chair’s suggestion for the funds to be used for the groceries. Had 'Epele written, for instance, that the groceries came from funds belonging to Dr Fasi, then the scope for an adverse inference would have materialised.
  5. I found the evidence of Dr Fasi, ‘Epele and Liliani about the Committee’s decision to give the groceries in support of the Community Police, on balance, to be relevantly consistent and convincing. For instance, the evidence that the Committee raised funds for its night classes; that it had surplus funds; the approximate quantum of those funds; that the decision to use the funds was taken when the night classes had finished for the year; that the idea of applying the funds for groceries in support of the Community Police was proposed by the Chairperson; and that it was supported by all members of the committee, including Dr Fasi, all went wholly unchallenged. Further, there was no direct evidence, or any indirect evidence sufficient to support an inference, that the Committee was acting on Dr Fasi’s behalf or to further his election campaign.
  6. Other strands of the evidence, including from some of Mr Sika’s witnesses corroborated aspects of Dr Fasi’s case. For instance, Lopeti estimated the value of the groceries in his box to be around $100. The Committee members packed 14 boxes (also unchallenged). Therefore, the groceries all up would have cost in the order of $1,400. The evidence of Dr Fasi, ‘Epele and Liliani was that the surplus funds amounted to a little over $1,000. There was no evidence, nor even a suggestion, that additional funds from another source/s had been used to complete the purchase of the groceries. Also, Kevin’s reference to Tipiloma mentioning that the groceries for his base had come from surplus funds from the night classes was consistent with the evidence of ‘Epele and Tipiloma. One might therefore ask rhetorically: if that were not the case, why would Tipiloma, who was not a member of the Committee, have mentioned it to Kevin?
  7. That is not to say the evidence of Dr Fasi’s witnesses was perfect. One notable aspect was that both ‘Epele and Liliani deposed that the Poako Committee did not pay its night class teachers a salary, only assistance for travelling costs. However, during his cross-examination in relation to the first claim, ‘Epele volunteered that his income at that time was derived from teaching night classes for the Poako Committee on Tuesdays and Thursday evenings, where he was paid $50 per hour per student, and for the Council of Tongatapu 2 Committee on Mondays and Wednesdays, where he was paid a flat $50 per hour. He agreed with a calculation which estimated that he was then earning, on average, about $800 per week. When she was asked about this, Liliani appeared quite vague and unsure, but eventually said that while the Committee did not pay its teachers a full time salary, it did give them $50 per hour as a ‘show of appreciation’ for their work.
  8. There was also a discrepancy in relation to the mode of the Committee’s meeting when it decided to use the surplus funds for the groceries. Under cross-examination, ‘Epele said it was conducted by group chat, whereas Liliani said that it was a physical meeting.
  9. However, on balance, I do not consider that those peripheral matters affect my acceptance of the unchallenged evidence that the groceries were funded by the Poako Committee pursuant to a decision of that committee to distribute groceries to the Community Police bases in support of the officers performing night watch during the Covid-19 lockdown period and curfew hours, which also just happened to have occurred in the lead up to the election. Nor do they alter my assessment of the reliability of ‘Epele’s evidence on the central issues in this claim or the others considered thus far.
  10. That the Committee had not previously provided any similar gift to the Haveluloto Community Police does not support Mr Sika’s case. The hard lockdown in Tongatapu had only then recently been in place and the Community Police had only recently been established to keep night watch during that period.
  11. For those reasons, I am satisfied, on the balance of probabilities, that the groceries were:
  12. Accordingly, the second claim fails.

The third claim - $300

Evidence

  1. In support of the third claim, Mr Sika relied on affidavits from Sivoki Vaioleti and ‘Ailini Fonua. As noted above, neither were required by Mr Edwards for cross-examination.
  2. Sivoki Vaioleti lives near Pasikala and Telusila Pelesikoti (also known as Prescott) in Haveluloto. She deposed that:
  3. ‘Ailini Fonua gave similar evidence in her affidavit. She was another of the women who attended Telusila’s residence on the Thursday, although ‘Ailini gave conflicting times.[28] Nevertheless, ‘Ailini also gave evidence that Telusila told the women's group that:
  4. Dr Fasi denied ever making a payment, directly or indirectly, of $300 (or any amount) to either Pasikala or Telusila Prescott. He also noted that, in his affidavit, Mr Sika had referred to a ‘Ma’ava Prescott’. Dr Fasi deposed that he did not know anyone by that name.
  5. In his affidavit, ‘Epele denied ever paying $300 to Ma’ava Prescott or anybody by the name of Prescott. He further denied making any payment of $300 on behalf of Dr Fasi to any voter in Tongatapu 2. Under cross-examination, he elaborated as follows:
  6. Pasikala Prescott deposed that neither Dr Fasi, nor anyone on his behalf, ever gave he or his wife $300 for their electricity bill. During his cross-examination, Pasikala denied the evidence of Sivoki and ‘Ailini, and he corroborated ‘Epele’s evidence in full.

Submissions

  1. In his written submissions, Mr Etika contended, in summary, that:
  2. Mr Edwards submitted, in summary, that:

Consideration

  1. I do not agree that the evidence of Sivoki and ‘Alini is admissible as part of the res gestae, for the reasons explained in R v Tomasi [2019] TOSC 32 at [18]. However, I do accept Mr Etika’s submission that s 35 of the Act permits the Court to receive and consider hearsay evidence.
  2. However, on this claim, the evidence relied upon by Mr Sika included hearsay on hearsay, that is, Sivoki and ‘Ailini saying what Telusila told them that ‘Epele told her. Where any hearsay evidence is admissible, the next question is what weight should be attached to it having regard to the inherent plausibility of the evidence and the extent to which it may be consistent (or not) with other evidence.
  3. The glaring question on this claim is why Telusila was not called to give direct evidence of having received $300 from either Dr Fasi or ‘Epele on Dr Fasi’s behalf. There was no evidence whatsoever to support the inferences suggested by Mr Etika in his submissions. They should not have been advanced. Further, Mr Etika did not ask Pasikala any questions about Telusila, why she did not give evidence or the content of the inferences he initially sought the Court to draw.
  4. In my view, it was reasonable to expect Mr Sika to call Telusila to give direct evidence rather than solely relying on second-hand hearsay from Sivoki and ‘Ailini. The absence of any evidence of a reasonable explanation for not calling Telusila supports an inference that her evidence would not have assisted Mr Sika’s case and enables the Court to more readily accept the Respondent’s evidence: Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298 at 308, 317 as discussed and applied in Tafa v Viau [2006] TOCA 6, Walter Trading Company Ltd v Ports Authority [2008] TOCA 5 and Cocker Enterprises Ltd v McCarthy (trading as Le-Ata Fashion Boutique & Gift Shop) [2021] TOSC 1.
  5. Moreover, whatever evidentiary value could be attached to the affidavits of Sivoki and ‘Ailini was exceedingly outweighed by the direct evidence of ‘Epele and Pasikala which was never seriously challenged and which I accept.
  6. For those reasons, and subject to what follows, I would have been satisfied that Dr Fasi did not give, directly or indirectly, any money to Telusila (or Pasikala) Prescott, in order to influence their vote, or at all.
  7. As it transpired, during his oral closing submissions, and on instructions from Mr Sika, Mr Etika withdrew this claim.
  8. I have nonetheless retained the above analysis in these reasons for two purposes: to provide further support for my acceptance of 'Epele’s evidence generally and as a record of the manner and bases upon which Mr Sika initiated and conducted this claim.

The fourth claim - $400

Evidence

  1. Kevin Toto also gave evidence that during September and October 2021, he was involved with plans for his Haveluloto parish of the Church of Tonga to conduct a fundraiser to assist their sister church in the Tofoa parish in the Tongatapu 7 constituency with funds for a building project.
  2. Between 29 September 2021 and 5 October 2021, Kevin exchanged messages with ‘Epele about the fundraiser. On 5 October 2021, ‘Epele enquired about whether there were any tickets available for the fundraising event, which was to be a concert. The two then exchanged the following messages:[29]

‘Epele: OK it's because of a donation by the Dr to be made, it's some coins but the checking out is about how will it be made for it's not much. Maybe it's only $500."

Kevin: Just perform a dance or let the MC announce during the concert that it was a donation by the candidate.

‘Epele: it's because he does not wished it to be announced. His donation.

Kevin: let the candidate come with it on Thursday night and then ask the MC to give him a chance to speak. Ask him to announce his donation to assist in his election.

‘Epele: he said to give it and then he will come later and drink kava with you guys, hhh. Boy!!! He is angry when it is announced that he donates to anything, it up to you. He told me to give it to you, then you can give it to the steward or the pastor, whatever you say.

Kevin: my view, is that it is better to be announced....

‘Epele: okay. Let me talk to him about it during night classes.

Kevin: if not, he can arrange with the steward or pastor for a time then to inform the church.

  1. On 7 October 2021, the church treasurer, Saia Vea, told Kevin that a donation of $400 from Dr Fasi had been received. The next night, at the fundraiser, the master of ceremonies did not announce any donation by Dr Fasi.
  2. Tonga’onevai Mahe was the village steward for the Church of Tonga at Haveluloto in 2021. He gave evidence that one evening in early November 2021, ‘Epele and Dr Fasi arrived at his residence. While he had heard of them and knew them by appearance, Tonga’onevai was not closely acquainted with either. He knew that Dr Fasi (whom he also knew as Pingi Fasi) was running for election for the Tongatapu 2 seat.
  3. From their vehicle, in which Dr Fasi was driving and ‘Epele was in the front passenger seat, ‘Epele handed an envelope to Tonga’onevai and said "That is a donation by the representative for the concert". Tonga’onevai thanked him. He later opened the envelope and found it contained $400 cash. He gave the envelope and cash to his wife to take to the church hall where the parish minister and treasurer were collecting donations from church members. The object of the fundraising was to assist churchmen to attend a fund-raising kava club hosted by their sister church at Tofoa on 8 November 2021.
  4. Litea Mahe is Tonga’onevai’s wife. She confirmed that she received an envelope with $400 in it from her husband who told her that it was given by ‘Epele who had come with Dr Fasi and that ‘Epele said it was a donation by ‘the representative’ to the concert. Litea gave the money to the church treasurer, Saia Vea, who recorded it in a cashbook. Even though she was not acquainted with him, Litea knew that Dr Fasi was running for the seat of Tongatapu 2.
  5. Saia Vea, who knew both Mr Sika and Dr Fasi, confirmed that he received $400 in an envelope from Litea who described it as a donation by Dr Fasi to assist in the concert. The concert did not go ahead that night because of a funeral and so the fundraising was conducted by way of silent collection of donations.
  6. In cross-examination, Saia was asked whether he kept a written record of the donations collected that night. He said that he had, although he described the details recorded as ‘all in general’. He recalled that he recorded the $400 as having been donated by ‘the representative’. That record was not discovered in the proceeding. Mr Etika was unable to explain why.
  7. Dr Fasi gave evidence that his ‘Haveluloto team’ conveyed a request to him for financial assistance from Tevita Pomana, a Minister of the Church of Tonga at Tofoa. ‘Epele told Dr Fasi that he and others would take care of it. It was agreed that donations would be made by ‘Epele Sekeni, Sinai Tu’itahi, Liliani Tu’itahi and ‘Ofa Telefoni. He said that he was not to be involved even though the payment was to be made to a church outside Tongatapu 2.
  8. During his cross-examination, Dr Fasi explained that the request for assistance was also discussed with the night class committee referred to above. One member of the committee, Lisia Latu, was also a member of the Church of Tonga at Haveluloto. Dr Fasi said that on the night of 7 October 2021, he and ‘Epele had finished their night classes at 8 pm. When they were driving home, ‘Epele wanted to look for the steward to give him the donation as neither Dr Fasi or ‘Epele were interested in going to the concert. Dr Fasi said that they did not go to Tonga’onevai’s residence but that they met him on the road where 'Epele handed over the donation. Dr Fasi denied that 'Epele made any reference to the donation being from him.
  9. ‘Epele gave the following evidence in relation to his claim. In the third week of September 2021, he was drinking kava at the Hufanga Club. There, Tevita Pomana, a Minister of the Church of Tonga, asked ‘Epele for financial assistance of approximately $500 from Dr Fasi in connection with a proposed building at the Tofoa parish in Tongatapu 7. A fundraising concert was proposed to be held in Haveluloto. ‘Epele told Tevita not to worry as he and Lisia Latu, a member of the night school committee and also a member of the church at Haveluloto,[30] would attend to the matter.
  10. Thereafter, ‘Epele, Sinai Tu’itahi, Liliani Tu’itahi and ‘Ofa Telefoni all donated $100 each, making a total of $400. ‘Epele did not attend the concert but gave the money to the church steward to take to the concert on the Friday night. ‘Epele deposed that the money was provided as assistance to a church outside the Tongatapu 2 electorate; it was not paid by or for Dr Fasi; it was not paid to private individuals but to a church organization; and it was not intended to bribe any voters in Tongatapu 2.
  11. During cross-examination, ‘Epele confirmed his affidavit evidence and gave the following, in summary:
  12. In relation to the other people referred to in his evidence, but who were not called to give evidence, ‘Epele said that he had last spoken with Lisia Latu before the current lockdowns although not about this case, Sinai was in New Zealand and ‘Ofa was working in Papua New Guinea.
  13. Liliani Tu’itahi had not referred to this claim in her affidavit. However, Mr Etika took the opportunity during her cross-examination to ask her about it. She said that while the Poako Committee did not discuss making a donation for the Church fundraiser referred to above, Lusia, who was a member of their committee and the Church of Tonga at Haveluloto, did ask the committee members to collect money for a donation to that cause. Liliani confirmed that she, Sinai, ‘Ofa and ‘Epele each donated $100 and that it was agreed that it be given as a donation by Lusia.

Submissions

  1. Mr Etika submitted, in summary, that:
  2. Mr Edwards submitted, in summary, that:

Consideration

  1. Mr Sika’s case on this claim is founded primarily on the evidence of Tonga’onevai Mahe that ‘Epele told him the donation was from ‘the representative’. As such, the fact that Litea repeated what Tonga’onevai told her, and Saia repeated what Litea told him, may only corroborate Tonga’onevai’s evidence if I accept that 'Epele told him the donation was from Dr Fasi. Conversely, if I do not accept Tonga’onevai’s evidence in that regard, the evidence of Litea and Saia will fall away.
  2. During his initial cross-examination, Tonga’onevai was extremely vague at times to the point of being almost non-responsive. Unfortunately, he then fainted in the witness box. He was helped from the court and medical attention was summoned while other witnesses were interposed. When he felt well enough to resume his evidence later that day, Tonga’onevai was more responsive but still somewhat tentative in his answers. Apart from changing his evidence in paragraph 6 of his affidavit to the effect that ‘Epele was in the back seat of the vehicle (not the front seat), Tonga’onevai otherwise maintained his earlier evidence. He impressed me as a truthful witness. Notwithstanding, and after due allowance for him being unwell earlier, I was not left with an impression of confidence in the reliability of his evidence.
  3. There is another independent reason I consider Tonga’onevai may have been mistaken in his evidence. He and a number of other witnesses (separate to this claim) gave evidence of Dr Fasi being referred to as ‘the representative’. However, as was the case with Tipiloma in relation to the third claim, nowhere in his evidence in relation to any of the claims, did ‘Epele ever refer to Dr Fasi as ‘the representative’. It was an odd term to use for the simple reason that Dr Fasi was not in fact the standing representative for Tongatapu 2 at the time.
  4. Moreover, in the contemporaneous written evidence of messages penned by ‘Epele, in relation to this and the second claim, he consistently referred to Dr Fasi, in an abbreviated form, as ‘the Doctor’. That difference was not explored in cross-examination. I infer that the term ‘the representative’ used by Tonga’onevai and the other witnesses without referred to it may have been more a product of interpretation by the person who prepared their affidavits rather than a record of those witnesses’ actual recollections in their own words.
  5. Yet a further reason is the lack of utility inherent in Dr Fasi making the donation indirectly in the manner alleged. It was common ground that the money (along with the other donations that evening) was destined for the benefit of the Tofoa parish in Tongatapu 7 and therefore of no direct electoral advantage to Dr Fasi in his race for the Tongatapu 2 seat. There was no evidence that Dr Fasi could have expected his name to be announced at the Haveluloto fundraiser as one of the donors to thereby possibly have impressed any of the church members present. In fact, there were no such announcements other than the total amount collected. If the donation was made by ‘Epele on Dr Fasi’s behalf, the only person Dr Fasi could have had any confidence in knowing that the donation was from him would have been the initial recipient, Tonga’onevai. There was no way Dr Fasi could have known thereafter that his name would be associated with the gift among other church members. If, in truth, it was Dr Fasi’s donation, then the fact that he did not attend the Haveluloto fundraiser to gain the attention of members if his name and donation were announced is consistent with an intention that the money was for the benefit of the Tofoa parish and not Haveluloto.
  6. For those reasons, I consider that Tonga’onevai was mistaken in his evidence. I preferred the evidence of Dr Fasi, ‘Epele and Liliani on this issue. There was no evidence to contradict, and they were not challenged, that the $400 came from those four committee members. When the chronology given by ‘Epele is considered, the context of his messages with Kevin is convincing. So too was the evidence that Dr Fasi was not interested in donating to this cause. For the reasons stated immediately above, there was, to put it simply, nothing in it for him. I consider it plausible therefore that ‘Epele and others such as Lusia, who was connected to the Haveluloto church, ‘took care of it’ (meaning the request for assistance) and made their own donation to assist Lusia in her position as a member of the Haveluloto church.
  7. Again, however, if I am wrong about that and ‘Epele did tell Tonga’onevai that the donation was from Dr Fasi, and assuming that statement was true, that is not the end of the matter.
  8. The next element of the offence of bribery under s 21(1)(a), or the second issue as it was described above, is that Mr Sika must first establish that Dr Fasi gave the donation (through ‘Epele) to or for any elector, or to or for any other person on behalf of any elector.
  9. In Latu v Lavulavu, ibid, Paulsen LCJ observed that:
“[115] Section 21(1)(a) requires the giving of money or a valuable gift ‘to or for any elector, or to or for any other person on behalf of any elector’. I consider that the words ‘any elector’ mean some identifiable elector or electors but not voters generally. I note the contrary view in Fasi v Pohiva (supra) at page 82 where Martin C.J. said that for the purposes of section 21 ‘It would suffice if there is an intention to influence voters generally’. I am not bound by that decision and do not follow it....”
  1. His Honour also referred to reservations about the decision of Martin C.J. expressed in Fasi v Pohiva (No. 2) [1990] Tonga LR 156, 157 where the Court of Appeal stated:
“... It was submitted that when the Act refers to a gift ‘... to or for any elector or to or for any other person ...’ it refers to some particular elector or electors or other person, and that in the present case the gifts were made to the government and not to an elector or person. It was also submitted that the words ‘...in order to induce any elector to vote ...’ refer to some particular elector or electors, and that no such elector had been identified. Martin C.J. ruled against these submissions. We think they may have substance but we do not need to rule upon them.”
  1. I respectfully agree with Paulsen LCJ that the preferable interpretation of s 21(1) in respect of a gift to or for any elector is that the gift must be given to or for some identifiable elector or electors but not voters generally. Similarly, the requirement that the gift be given ‘in order to induce any elector to vote’ means a particular elector or electors. Otherwise, a Respondent could be faced with insurmountable hurdles in seeking to rebut the presumption of bribery imposed by s 21(3) by proving that his gift was innocent, if the Respondent does not know with reasonable specificity the elector or electors who received his gift and are deemed to have been relevantly induced, or whose vote was influenced, by it.
  2. I also consider that the concept of giving money or other valuable gifts necessarily involves an intention that the recipient will enjoy the benefit of the money or gift so that it is that benefit which then acts as an inducement for the recipient elector to vote for the giver. Therefore, where money is given to A only for the purpose of passing it onto B, A is unlikely to enjoy any benefit from the money which could act as an inducement on A to vote for the giver.
  3. By his Amended Petition, Mr Sika alleges[32] that the members of the Haveluloto church were ‘members of a class of voters’ within the Tongatapu 2 constituency and that ‘the gift was understood’ by the members of the class who knew about it as being a bribe.
  4. However, by closing submissions, Mr Etike presented a different case. He sought to narrowed that ‘class’ to only Tonga’onevai Mahe, Litea Mahe or Saia Vea, that is, the church members who were allegedly aware that the donation was from Dr Fasi. The submission cannot be accepted.
  5. It was common ground that the donation was given to the steward of the Haveluloto church for their fundraiser to support the Tofoa church’s building project. That the donations were to enable men from the Haveluloto parish to attend a kava fundraising session at the Tofoa parish does not detract from that stated purpose. In other words, the money was never intended for the benefit of the Haveluloto church or its congregation or even Tonga’onevai Mahe, Litea Mahe or Saia Vea but for the Tofoa parish project in Tongatapu 7. Therefore, the donation was never given to or for the benefit of any of the members of the Haveluloto church or any other voters within the Tongatapu 2 constituency.
  6. Further, and contrary to the pleaded assertion above, there was no evidence from any of Kevin Toto, Tonga’onevai Mahe, Litea Mahe or Saia Vea, that is, the members of the class of Haveluloto church members who knew about the donation, that it was intended as a bribe by Dr Fasi.
  7. And there was no evidence that any of the members of the Tofoa church were ever informed that Dr Fasi had made a donation as part of the total support provided to the Tofoa church for its building project.
  8. Accordingly, I find that even if the donation was made on behalf of Dr Fasi, the money was not given to or for any identifiable elector or electors in order to influence the vote of that elector or those electors.
  9. For completeness, I will briefly address the submissions of both counsel based on their respective interpretations of the operation of s 24(3) and the exemption provided therein for expenses in relation to a church or for a charitable purpose.
  10. Section 24(1) prohibits candidates from spending more than $20,000 on their campaign. It is intended to provide a ‘level playing field’.[33] As the opening words of ss (3) - “For the purposes of this section” – make clear, the primary purpose of the provision is to exclude a candidate’s personal expenses, including on those persons within his/her filial relations as specified therein, and in relation to a church or for a charitable purpose, from any accounting of campaign expenses.
  11. However, s 24(3) also serves another purpose. The carve out in s 21(3) – “except a person named in section 24(3)” – has the effect that any personal expense by a candidate in relation to, relevantly, a church or for a charitable purpose, within three months of an election, will not be deemed to be a bribe. That does not automatically mean, however, that a payment of money of other valuable gift to members of a church cannot be a bribe. It simply means that a Petitioner will retain the burden of proving that the gift was given, firstly, to an elector or electors within that church or charitable purpose (as discussed above) and, secondly, that it was given for the purpose of influencing their vote.
  12. Mr Etika’s submission that the exemption to the maximum permitted election expenses provided by s 24(3) is limited in its application only to churches with which a candidate is affiliated is, with respect, not supported by a plain reading of the provision. In determining whether a candidate has exceeded the maximum permitted election expenses, personal expenses in relation to any church or charitable purpose are to be disregarded.
  13. But in this case, that is not to the point.
  14. Nor, with respect, were Mr Edwards’ submissions that the donation here was made to a church fundraising at the request of the church or that it was made for the benefit of a church outside the Tongatapu 2 electorate, although for reasons developed below, that issue does become relevant in a broader analysis.
  15. Further, I do not agree with the submission, as a general proposition, that a donation of money to a church cannot amount in law to bribery.
  16. Prima facie, and subject to establishing the other requirements of s 21(1) as discussed above, it is possible for money paid by a candidate for election, to a church or charitable purpose, to be a bribe. As explained, s 24(3) does not exclude such payments from the reach of s 21(1), only the deeming effect of s 21(3).
  17. Further, s 24(2) provides, relevantly, that certain payments, including ‘any donation made within 6 months of an election, either by a candidate or on his behalf’, are deemed to be spending on an election campaign (for the purposes of the $20,000 limit provided by ss (1)), unless the payment is ‘contrary to section 21’.
  18. For a payment to a church or for a charitable purpose to be contrary to s 21, the same elements for any other payment or gift (outside three months of an election) are required to be proved. Taking ss (1)(a) as the pertinent example, a Petitioner must prove that the Respondent, directly or indirectly, by himself or by any other person on his behalf, gave money or a valuable gift to or for any elector, or to or for any other person on behalf of any elector or to or for any other person, in order to induce any elector to vote or refrain from voting.
  19. Self-evidently, a plain reading of those elements does not confine an offence of bribery only to gifts to electors within the Respondent’s electorate.
  20. In this context, two practical issues of proof arise. Firstly, proving that a donation to a church as an entity is a gift to an identified elector or electors. Secondly, and assuming the first can be overcome by, say, identifying specific church members who received the benefit of the donation, if those members belonged to a church outside the Respondent’s electorate, proving that the donation was given for the purpose of influencing the vote of that elector or those electors?
  21. Curiously, s 21(1)(a) in fact refers to money or a valuable gift being given ‘in order to induce any elector to vote or refrain from voting’. It does not state that the money or gift must be given in order to induce any elector to vote for the giving candidate or to refrain from voting for any competitor. That, however, is the interpretation that appears to have been adopted by the authorities albeit couched in more general terms such as ‘influencing the vote’. That interpretation is supported by the text of other subsections within 21(1) such as (c) and (d) which refer to the ‘return of a person at an election’. It is also consistent with the purpose of Part IV of the Act being the creation and prevention of election offences. As one of the traditional corrupt practices, bribery in an election context, almost always involves inducing an elector to vote for the principal inducer.
  22. In any event, on the accepted interpretation of that last limb of ss 21(1)(a), the fact that a recipient may reside outside the giving candidate’s electorate is likely to be an insuperable obstacle to establishing bribery because if that recipient’s vote is irrelevant to the giving candidate’s prospects of election in his/her constituency, any gift for the purpose of inducing the recipient to favour that candidate will be ineffectual as the recipient cannot vote in the candidate’s electorate.
  23. However, if one takes a broader approach to the concept of ‘influencing the vote’, beyond just that of a specific candidate in a specific constituency, one can see that in an era in Tonga of emerging party politics, the possibility of a candidate in one electorate, who may be particularly well resourced and who is a member of a particular party, giving (directly or indirectly) money or other gifts to or for an elector in a different constituency for the purpose of influencing that elector to vote for the candidate in that constituency who belongs to or is affiliated with the same party. In that event, s 21 is, in my view, intended to, and is capable of, impugning that gift as a bribe.
  24. Whether a donation to a church or charitable purpose is to be regarded as a bribe will depend on a number of factors. For instance, if a candidate makes regular donations to his church of say $50 per week, and then shortly before an election, he makes a donation of $500, that may be evidence of a bribe. Similarly, if shortly before an election, that same candidate starts making sizable donations to other churches in his constituency, which he does not ordinarily attend, that too may be evidence of bribery. However, and as mentioned above, it may be difficult in a church environment, if all donations and offerings are deposited into the church’s consolidated revenue for its general operations, to identify any particular elector or electors to whom the payment was given or that it was intended to influence any particular elector’s or electors’ vote. On the other hand, if a candidate parishioner takes steps to ensure that his or her uncharacteristically large donation is made known to all other church members, the first requirement may be established (if it can also be demonstrated that the money was given to or for the benefit of those church members) and the second may be more readily inferred.
  25. I conclude this analysis of the fourth claim with the final alternative scenario. If it be determined elsewhere that the donation to the Haveluloto church was made on behalf of Dr Fasi, and putting aside the issue of whether it was given to an identified elector or electors, the uncontroverted fact that the money was given ultimately for the benefit of the Tofoa church, within the Tongatapu 7 district, would negate any rational possibility that Dr Fasi had sought to induce the electors of the Tofoa church to vote for him because their vote could not assist him in being elected as the representative of the Tongatapu 2 electorate.
  26. For those reasons, the fourth claim also fails.

Result

  1. The Petition is dismissed.
  2. The Petitioner is to pay the Respondent’s costs of and incidental to the proceeding, to be taxed in default of agreement.



NUKU’ALOFA
M. H. Whitten QC
15 April 2022
LORD CHIEF JUSTICE

[1] Ibid, fn 4.
[2] Latu v Lavulavu at [27], citing Scott v Martin (1988) 14 NSWLR 663, 670 and Henslow v Fawcett (1835) 3 Ad & El 51, 58.
[3] Except those named in section 24(3) which are the giver’s spouse, parents, grandparents, grandchildren, the brothers and sisters and half brothers and half sisters of his parents, spouse's parents, brothers and sisters and half brothers and half sisters or their children, or the brothers and sisters and half brothers and half sisters of his spouse or their children, or in relation to a church or for a charitable purpose.
[4] Other than to those excluded by s 24(3).
[5] Latu v Lavulavu at [27], citing Fasi v Pohiva [1990] Tonga LR 79, 81 per Martin CJ.
[6] From the decision of the Solomon Islands High Court in Ha'apio v Keniasina [2011] SBHC 177.
[7] Lavulavu v Latu [2015] TOCA 13 at [10].
[8] Citing Kalsakau v Principal Electoral Officer [2013] VUSC 99, Z V Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 at [101] per McGrath J.
[9] Latu v Lavulavu at [31], citing Fusitu'a v Ta'ofi & 'Aho [1996] Tonga LR 102 at 105.
[10] Miller v Minister of Pensions [1947] 2 All ER 372, per Denning J.
[11] Latu v Lavulavu at [32] and [33], citing Launceston (1874) 2 O'M & H 129, 133 per Mellor J and Kingston-upon-Hull (1911) 6 O'M & H 389, per Bucknill J.
[12] Citing Kingston-upon-Hull, Central Division, Case (1911) 6 O'M & H 372 referred to in Halsbury's (supra) at paragraph 774 fn5.
[13] Latu v Lavulavu at [28], citing Director of Public Prosecutions v Luft [1976] UKHL 4; [1977] AC 962, 983, Scott v Martin (1988) 14 NSWLR 663 at 672 and Wigmore v Matapo [2005] CKCA 1 at [37].
[14] Latu v Lavulavu, ibid, at [26], citing Halsbury's, 3rd Ed, Vol 15 paragraph 780.
[15] Piper v Hales [2013] EWHC B1 (QB), citing the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431, as discussed in “Assessing witness credibility: credibility is not necessarily the same thing as honesty” by Gordon Exall, Barrister, Kings Chambers, in Updates and Commentary on Civil Procedure, published in Civil Litigation Brief, April 4, 2022.

[16] Sivoki Vaialeti and ‘Alini Fonua.
[17] Which were not objected to by Mr Etika, and in any event, were admissible pursuant to s 35.
[18] Dr Fasi’s affidavit referred to Vatu messaging ‘Epele, which he corrected when he was asked to confirm the contents of his affidavit.
[19] Erroneously dated 2021.
[20] A screenshot of which was exhibited to his affidavit.
[21] [12]
[22] (1894) 6 The Reports 67 as discussed in Australia and New Zealand Banking Group Limited v Lasike [2016] TOCA 7.
[23] [15]
[24] Creech v Boorman HC Masterton M32/87 [1988] NZHC 330; Wairarapa Election Petition; [1988] 2 NZLR 74; (1988) 7 NZAR 289 (12 July 1988), discussed in Peters v Clarkson, unreported, New Zealand High Court, 12 December 2005.
[25] Page 106 in the original copy of the judgment.
[26] Section 216 of the New Zealand Electoral Act.
[27] Page 105.
[28] At paragraph 2 of her affidavit ‘Ailini referred to the first week of November 2021 whereas at paragraph 5, she referred to the discussion with Telusila occurring in late November 2021, shortly after the election.
[29] Screenshots of the messages were exhibited to Kevin's affidavit. The passages above are recited verbatim.
[30] In cross-examination, ‘Epele corrected [5] of his first affidavit which referred to ‘Tofoa’.
[31] 5 October 2021, confirmed by the screenshots of the messages exhibited to Kevin Toto’s affidavit.
[32] [3.6] to [3.8].
[33] Latu v Lavulavu at [149].

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