Piukala v Saulala [2022] TOSC 50; CV 74 of 2021 (2 May 2022)

IN THE SUPREME COURT OF TONGA
NUKU’ALOFA REGISTRY
ELECTORAL REGISTRY CV 74 of 2021

IN THE MATTER OF: THE ELECTORAL ACT
BETWEEN:
PAULA PIVENI PIUKALA Petitioner
-and-
SIONE SANGSTER SAULALA Respondent

JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: The Petitioner in person
Mr Clive Edwards SC for the Respondent
Trial: 31 March 2022, 1 and 14 April 2022
Submissions: 20, 22 April 2022
Judgment: 2 May 2022

CONTENTS

PROCEEDING
CLAIMS
	PROPOSED ADDITIONAL CLAIM – LEAVE REFUSED
LAW
EVIDENCE GENERALLY
	AFFIDAVITS OF AHIO TAUELANGI AND SIONE KOLO – ALLEGED FRAUD
SUBMISSIONS
FIRST CLAIM - $100
	EVIDENCE
		Hengihengi Kolo Mele Tiulipe Kolo Mr Saulala Samuela Sitenili Felemi Sione Kolo
	SUBMISSIONS CONSIDERATION
SECOND CLAIM - $20 AND CHICKEN
	EVIDENCE
		‘Ahio Tauelangi ‘Asaloni Tamale Siupeli Tamale Mr Saulala Tevita Peioneti Tauelangi
	SUBMISSIONS CONSIDERATION
THIRD CLAIM - GROCERIES
	EVIDENCE
		Kilisitina Saulala Semisi Tau’ataina Vea Mr Saulala Fe’ofa’aki ‘A Kakau Tu’i’onetoa Viliami Uasike Latu
	SUBMISSIONS CONSIDERATION
FOURTH CLAIM – REQUEST FOR ROADWORKS
	EVIDENCE
		Vilisoni Tauelangi Tevita Faletau Mema Latu Mr Saulala
	SUBMISSIONS CONSIDERATION
RESULT

PROCEEDING

1. At the general election held on 18 November 2021, the Petitioner (“Mr Piukala”) and the Respondent (“Mr Saulala”) were among the candidates vying for election as the representative for Tongatapu 7. In the result, Mr Saulala was elected and was subsequently appointed to Cabinet as the Minister of Internal Affairs.
2. By his Election Petition filed on 17 December 2021, pursuant to s 25 of the Electoral Act (“the Act”), Mr Piukala seeks a declaration that Mr Saulala’s election is void on the grounds that he committed bribery.

CLAIMS

3. Specifically, Mr Piukala alleges that:
   • (a) on 28 September 2021, Mr Saulala gave Hengihengi Kolo, of Tofoa, $100 (“the first claim”);
   • (b) on 16 November 2021, Mr Saulala gave ‘Ahio Tauelangi, of Pea, $20 and a box of chicken to Mr Tauelangi and others (“the second claim”);
   • (c) on 10 November 2021, by his wife, Mr Saulala indirectly gave a bag of groceries to the same ‘Ahio Tauelangi (“the third claim”); and
   • (d) sometime prior to 8 November 2021, Mr Saulala asked the then Prime Minister for help with his campaign by bringing forward Government planned roadworks in the area between Pea and Tokomololo, which works were undertaken in the first half of November 2021 (“the fourth claim”),

and that, in each instance, Mr Saulala did so in order to induce the recipients of the money or gifts to vote for him.

Proposed additional claim – leave refused

4. On 2 March 2022, when the case was first called before me,^[1] directions were made for the trial to commence on 31 March 2022 and for Mr Piukala to file any further affidavits upon which he wished to rely at trial by 11 March 2022. That latter direction arose because Mr Piukala informed the Court that he wished to add more details to his claim involving the alleged gift of chicken referred to above. I stated at the time that if the additional material did not alter the nature of his pleaded claims, he could file further affidavits without having to file any amended pleading or further and better particulars of his existing claims.
5. However, on or about 11 March 2022, Mr Piukala filed a further affidavit from ‘Asaloni Tamale deposing to a separate occasion in the week before the election in which it was alleged that one of Mr Saulala’s agents (Mema Latu) brought chicken to Mr Tamale’s family home as a gift from Mr Saulala. In his written submissions filed on 29 March 2022, Mr Piukala referred to this separate allegation of bribery as an additional ‘issue’ in the case. After ‘Asaloni gave evidence at the trial, I raised with the parties that the additional claim had not been pleaded. Mr Piukala explained that he only became aware of the additional claim when he spoke with Mr Tamale sometime after receiving Mr Saulala's Response which was filed on 5 January 2022. Mr Tamale’s affidavit was sworn on 10 March 2022.
6. Mr Edwards, who had said nothing about it prior to then, then objected to the additional claim (and any evidence in support of it) being included in the proceeding. He pointed to prejudice that would be occasioned if the additional claim was allowed to go forward because he and his client had made a conscious decision not to engage with, or file any evidence in opposition to, the claim because it had not been pleaded.
7. After hearing further from the parties, I refused Mr Piukala leave to amend his Petition to include the additional claim. I now set out my reasons as developed from those stated at the time.
8. Order 14 of the Electoral Petition Rules (“the Rules”) provides, relevantly, that:
   • (a) an election petition may be amended without leave of the Court after it is filed and before it is served, but only with leave of the Court after it is served;
   • (b) Order 8, Rule 7(4) and (5) of the Supreme Court Rules are not to apply to amendments to any document filed in election petition proceedings; and
   • (c) where leave is granted to make an amendment, the respondent is to be given such time to respond to the amendment as the Court may allow.
9. The approach to be taken to the exercise of discretion in determining applications to amend is informed by the following statements of principle:
10. In Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch D 700 at 710-711, Bowen LJ opined:

"[T]he object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party ... as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.":

11. The relation of rules of practice to the work of justice has been described as that of ‘handmaid rather than mistress’ and the court ought not be so far bound and tied by rules as to be compelled to do what will cause injustice in the particular case: Re Coles and Ravenshar [1906] UKLawRpKQB 137; [1907] 1 KB 1, 4 per Collins MR.
12. Similarly, and as a general proposition, amendments should be allowed, even mid-trial, if they are in the interests of justice and would enable proper determination of the issues in the case: Taumoepeau v Pohiva [1994] Tonga LR 12.
13. “In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties ... What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.": Sali v SPC Limited [1993] HCA 47; (1993) 67 ALJR 841 at 843-844; [1993] HCA 47; 116 ALR 625 at 629 per Brennan, Deane and McHugh JJ.
14. However, in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154, the High Court said of the above statement in Sali that:

"... nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

15. And further, at 155:

“Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. ...."

16. The plurality in JL Holdings provided the following guiding principles (citations omitted), in summary:
    • (a) No rigid pronouncements can be made of the way in which a discretion to permit an amendment of pleadings should be exercised.
    • (b) The basic principle controlling the exercise of a power granted by statute, or under the authority of statute, is that the power must be exercised for the purpose for which it was afforded by the legislature. In the case of Rules of Court, it may be assumed that the power was granted out of the recognition of the traditional role of the judges to do justice according to law.
    • (c) Case management is now regarded as a necessary and orthodox part of the judicial function to provide more effective management of litigation and to avoid accumulating delays which may occasion serious injustices and to respond to ever increasing case loads without the benefit of commensurate increases in judicial numbers and resources.
    • (d) Considerations which may tend to favour the extension of an indulgence to a party applying for it include:
      • (i) it is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided;
      • (ii) the oversight which occurred is adequately explained as, for example, that it arose out of sudden and unexpected events;
      • (iii) the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim;
      • (iv) any fault is that of the party's legal representatives;
      • (v) the oversight was wholly accidental or was simply the product of unavoidable human error or, possibly, the outcome of the application to the case of fresh legal minds who perceived an important new point;
      • (vi) cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice;
      • (vii) the hearing date is sufficiently in the future to permit a party to meet the amendment, taking into account any consequences for the gathering of fresh evidence, the conduct of discovery or like pre-trial procedures and the loss of assigned hearing dates;
      • (viii) departures from a court ordered timetable, whilst relevant, are not decisive. Such orders are the servants of justice. They are designed to enhance its achievement in a way that an inflexible application of rigid rules could prevent.
    • (e) Considerations which tend to argue against the grant of an indulgence include many which are the counterparts of the foregoing such as:
      • (i) the failure of a party to offer anything by way of explanation for a late application has been held relevant;
      • (ii) the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions;
      • (iii) the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes;
      • (iv) just as justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party; the proximity of the hearing is a most important consideration;
      • (v) an opposing party is entitled to have taken into account the consequences of an indulgence, especially where it would cause disarray at the last minute to its preparation of the trial;
      • (vi) the length of time that the proceedings have been pending before the application is made;
      • (vii) if a consequence of the indulgence is truly a necessity to postpone a trial date, this will be a most important consideration. Its importance increases with the congestion of court lists and the difficulty, particularly in the case of a lengthy trial, of securing early replacement dates;
      • (viii) the extent to which a new issue would give rise to a substantial and new case in reply is also relevant;
      • (ix) the nature of the litigation and whether it has been assigned to a special list designed to cater for the peculiarities and special needs of commercial cases, long trials and the like;
      • (x) the risks of "litigation abuse" by which some litigants seek, at all costs, to avoid firm hearing times. Courts are entitled to react unfavourably to repeated default on the part of a litigant whose conduct has the effect of frustrating a proper timetable fixed for the trial;
      • (xi) justice will not necessarily require that a party should have multiple opportunities to plead and present its case;
      • (xii) a court must accord justice to the particular litigant but it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.
    • (f) Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. “A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved.”
17. Even though case management principles ‘should not supplant the objective of doing justice between the parties according to law’, ‘waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants’, are to be taken into account. ‘Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes’: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [30].
18. As to an explanation for the late application to amend, Mr Piukala also said that he had misunderstood my direction on 2 March 2022 and thought that he could simply introduce the additional claim to the proceeding by filing evidence in support of it and without having to amend the Petition. Mr Piukala is not a qualified lawyer although he does have some experience in the conduct of litigation^[2] as a purported lay advocate or “McKenzie friend”.^[3] Further, during the time that this case was managed by former Acting Chief Justice Afeaki, his Honour made a number of directions which invoked the requirements of the Act and the Rules. Mr Piukala has, on a number of occasions, emailed the court and filed other documents by which he has reflected an understanding of those statutory requirements. He therefore ought well have known when he first became aware of the evidence said to support the additional claim, that it would require amendment to the Petition and consequential directions before the matter would be ready to be set down for trial. In my view, Mr Piukala’s explanation was unsatisfactory.
19. However, there is another, and far more compelling, reason I considered the application had to be refused.
20. In the ordinary case, and consistent with the above principles, any significant amendment to a pleaded case during trial, will very often necessitate an adjournment of the trial to ensure fairness to the party affected by the amendment.^[4] Section 31(2) provides that the Court may, in its discretion, adjourn the trial from time to time, but the trial shall, so far as is practicable and consistent with the interests of justice in respect of the trial, be continued from day to day on every lawful day until its conclusion.
21. However, as the provisions of the Act and its Rules plainly suggest, election petition cases are not ‘ordinary’ cases.
22. Section 31(4) of the Act confers on the Court jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as it thinks fit. To that end, s 35 provides that 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.
23. In my opinion, the latitude of those statutory directives ought not be interpreted and permitting negation or diminution of any of the fundamental characteristics of the just trial of any action which include, at a minimum, natural justice and procedural fairness. The latter includes that, prior to trial, the parties know the case they have to meet.
24. Section 27(1) requires an election petition to be presented within 28 days after the result of the poll has been declared. Section 26(3) requires that a petition state the matters prescribed by the Rules. Rule 10(1) requires a petition to state the full details of the grounds and the facts on which the petitioner disputes the election.
25. As at the date this matter was set down for trial, the ambit of the issues in dispute (the four claims referred to above), that is, the case for trial, had been defined by the Petition and the Response. It was in respect of those issues that the parties were required to prepare (and in the case of the Respondent at least, had prepared) and present their cases for trial.
26. On their proper interpretation, ss 31 and/or 35 do not automatically permit any additional discrete claims to be injected into a proceeding late in the piece and without any clear notice to an opposite party in advance that those claims are intended to form part of the overall issues for determination. That is particularly so given that success on any one claim will invalidate Mr Saulala’s election.
27. Further, and perhaps most importantly, rule 17(2)(c) requires the trial of an election petition to commence not more than three months from the date the petition was filed unless extended by special leave of the Court. Since 15 January 2022, the Kingdom (and those in Tongatapu and Ha’apai in particular) has suffered unprecedented, major disruptions as a result of a volcanic eruption, consequent tsunami and widespread damage including internet outage for the following month. In addition, since the beginning of February 2022, after almost two years of isolation from the Covid-19 pandemic, the Kingdom is now grappling with the incursion and rapid spread of the virus within the community. While the resulting delays are not in any way attributable to Mr Piukala or the conduct of his case, they have meant that the prescribed three-month period had already elapsed by the time this trial was able to commence.
28. Provisions such as ss 27(1) and rule 17(2)(c) serve a critically important purpose. They are plainly intended to ensure that the outcome of an election can be known with certainty within defined and relatively short timeframes. Thus, the longer the period between an election and the determination of election petitions challenging the results of the election, the greater the risk of uncertainty in the relevant electorate and within Parliament. Further, where, as here, a Respondent has, in the interim, been appointed to Cabinet, delays in the determination of the petition will prolong and may exacerbate the potential for uncertainty in respect of Cabinet decisions made during that period.
29. In my view, those considerations weighed heavily in the exercise of discretion on an application to amend during the trial of a case of this kind. Had the application to amend here been allowed, the resulting delays occasioned by a necessary adjournment of the trial part heard, revised pleadings, possible further discovery and the filing of additional affidavit material, combined with the Court’s current trial listings for many other cases, would likely have resulted in the determination of this petition being further delayed by another five or six months. Such an outcome, regardless of the fate of the petition (or any appeals from the decision on it), would be contrary to the evident intent and temporal imperatives of the Act and the Rules, and the necessity for certainty within Parliament as soon as practicable following a general election.
30. As it transpired, Mr Piukala became unwell on the afternoon of the first day of the trial, but after the above ruling. On the morning of the second day, he was still too unwell to appear. As a result, the trial was adjourned part heard to 14 April 2022. No further application to amend was made in the interim.

LAW

31. In addition to those discussed above, the statutory provisions and other legal principles, many of which were comprehensively surveyed by Paulsen LCJ in Latu v Lavulavu,^[5] relevant to the claims and issues raised in this Petition, may be summarised as follows:
    • (a) Any person who, directly or indirectly, by himself or by any other person on his behalf, gives any money or 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, commits the offence of bribery (s 21(1)(a)).
    • (b) Giving money or a valuable gift includes giving, lending, agreeing to give or lend, offering, promising or promising to procure or try to procure, any money or valuable gift (s 21(2)).
    • (c) The words "in order to induce any elector to vote or refrain from voting" in section 21(1)(a) are directed to actions taken to influence an elector or electors in the exercise of their voting rights. It is not necessary to prove that such actions did in fact produce any effect on the election.^[6]
    • (d) Any money or valuable gift given or offered or agreed to be given (in the absence of good consideration) to any person^[7] within 3 months of any election by or on behalf of a candidate, shall be deemed to have been given or offered or agreed to be given for the purpose of influencing the vote, unless the contrary be proved (s 21(3)).
    • (e) The legal onus of proving his challenge is on the petitioner. To discharge that onus, the petitioner bears the evidentiary burden of proving that a gift was made, and that it was made for the purpose of influencing the vote. Any gift made beyond three months prior to the election is presumed ‘innocent’ until the petitioner proves otherwise. However, once a petitioner establishes that a gift was made within three months prior to the election, the rebuttable presumption created by the deeming provision in s 21(3) has the effect of satisfying the petitioner’s burden of proving the second element: that the gift was made for the purpose of influencing the vote. The burden of proof then shifts to the Respondent to establish the contrary, that is, that the gift was ‘innocent’.^[8]
    • (f) It is reasonable to presume that in enacting sections 21(3) and 24 (limits on permitted election expenses), Parliament was aware of, and took into account, any recognized Tongan customs involving the giving of gifts whether by way of assistance to family members, refreshments or as part of recognized rituals or ceremonies. That Parliament nonetheless saw fit to provide that gifts given within three months of an election are deemed to be bribes unless the contrary is proven is a clear reflection of the following cautions cited by Paulsen LCJ in Latu v Lavulavu at [42]:^[9]

“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.’"

(g) The standard of proof is the civil standard or the balance of probabilities.^[10] 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. 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.^[11] In Latu v Lavulavu,^[12] it was submitted that ‘given the gravity of allegations of bribery, and the very serious consequences that flow from such a finding, the proof required, although on the balance of probabilities, is to a higher level than in the ordinary civil case’.^[13] Paulsen LCJ explained that ‘[t]his 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’.^[14] Where section 21(3) has been invoked, the ordinary civil standard of proof, on the balance of probabilities, applies.^[15]
(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.^[16]
(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].^[17]
(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 section 21(1)(a) if one significant motive was to influence the vote.^[18]
(k) In an election context, a person may become a candidate's agent by either actual appointment or employment or by recognition and acceptance of their actions by the candidate. In determining whether agency is established all the circumstances should be taken into account. Personal intimacy is evidence of agency. In the case of a candidate's wife, where she concerns herself in her husband's election she is ipso facto regarded as his agent and is taken to have acted on his behalf.^[19]
(l) 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)).
(m) 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. ^[20]

EVIDENCE GENERALLY

32. All primary evidence in the proceeding was directed to be filed by way of affidavit.
33. Mr Piukala gave evidence and called evidence, by affidavits from Hengihengi Kolo, Mele Kolo, ‘Ahio Tauelangi, Siofilisi ‘Akau, Vilisoni Tauelangi and Tevita Faletau. He also tendered a number of screen shots of Facebook posts by Mr Saulala and two of his witnesses. Mr Piukala was not a direct witness in relation to any of the claims and his affidavit simply summarised some of the evidence of his other witnesses, restated the particulars of his claims and made submissions in support of them.
34. Mr Saulala gave evidence and called evidence, by affidavits from his wife, Kilistina Saulala, Samuela Felemi, Semisi Vea, Tevita Tauelangi, Mema Latu, Sione Kolo, Fe’ofa’aki Tu’i’onetoa and Hon. Viliami Latu. He also filed an affidavit stated to have been sworn by ‘Ahio Tauelangi.
35. All the witnesses were registered voters for the Tongatapu 7 constituency. Most were required for cross-examination.
36. As each of the claims involved essentially a min-trial within the trial, the evidence of each of the witnesses is addressed in more detail within the analysis of each claim.

Affidavits of Ahio Tauelangi and Sione Kolo – alleged fraud

37. As noted above, both Mr Piukala and Mr Saulala filed affidavits said to have been sworn by ‘Ahio Tauleangi. The first, filed by Mr Piukala, was dated 24 January 2022 (“the January affidavit”) and related to the second and third claims. The second, filed on behalf of Mr Saulala, was dated 18 March 2022 (“the March affidavit”) and related only to the second claim.
38. ‘Ahio is 78 years of age. When he was called for cross-examination, he presented as quite frail, hard of hearing and not particularly well. When he was shown his affidavits, he confirmed the January affidavit but said that the March affidavit was given to him by Siua (his nephew) and Sangster (Mr Saulala) when he was very ill and lying down in his house. He said that he only signed one and that it was not the affidavit given to him recently when he was sick, i.e. the March affidavit. Later, when asked whether he could recall signing any affidavits for this proceeding, Ahio said ‘maybe’ but that his recollection was ‘not good’. He was also unsure whether he signed any affidavit in front of a lawyer. He was adamant, however, that he did ‘not consent’ to the March affidavit. I directed the court interpreter to read the January affidavit to ‘Ahio, paragraph by paragraph, and he confirmed that the contents of each was true and correct. I invited Mr Edwards to do the same in respect of the March affidavit during his re-examination if he wished. He did not do so.
39. Mr Saulala was also asked about the preparation of ‘Ahio’s March affidavit. Initially, he said that he spoke with ‘Ahio on the phone. Mr Saulala then typed up what ‘Ahio had told him. Mr Saulala then sent his driver with the draft affidavit to ‘Ahio for him to read and ‘Ahio agreed with its contents. Mr Saulala then said that he did not know how the affidavit ‘got sworn and signed’ and that he never saw the final sworn affidavit.
40. Later, in his cross-examination, Mr Saulala was asked again about this matter. He then said that ‘Ahio phoned him in March 2022 and apologised to Mr Saulala because of what his son and Mr Piukala were doing which was ‘for political reasons’. According to Mr Saulala, ‘Ahio said that he was ‘happy to see’ Mr Saulala and that Mr Saulala had ‘good intentions’. ‘Ahio did not give any of that evidence when he was called nor was it put it to him in cross-examination. With that, Mr Piukala indicated that he would be recalling ‘Ahio. He did not do so.
41. A similar situation arose in relation to the affidavit of Sione Kolo, which related to the first claim. He too is 78 years of age, although he presented in slightly better health than ‘Ahio. Sione’s affidavit was also dated 18 March 2022, as were a number of others filed on behalf of Mr Saulala. They, as well as ‘Ahio’s March affidavit, all bore the seal and signature of Ms Lesina Tonga, a lawyer and Commissioner for Oaths, as having administered the respective deponents’ oaths at the time of swearing and signing their affidavits. During Mr Piukala’s cross-examination of him, Sione was asked whether he went to a lawyer’s office to swear his affidavit, to which he responded “not yet”. He later confirmed that he had not gone to any lawyer in relation to his affidavit and that he did not know Lesina Tonga. During his re-examination by Mr Edwards, Sione confirmed that the signature on his affidavit was his but he said that he was ‘given the form to sign by a guy who came over with the form and told him to sign it’. His family was at the house but he went to a table outside just with ‘the guy’ (whose name he did not initially recall, but there was later mention of a ‘Tauaho’) where he signed the document. He confirmed that he was not administered any oath when he signed it and he was not sure whether the left side of the execution section (for the signature and seal of the Commissioner for Oaths) was completed when he signed, although he thought the stamp might have already been there.
42. As debates raged about these affidavits during the trial, it occurred that one way of resolving them would be to hear from Ms Tonga directly about her involvement, if any, in the swearing of the affidavits. Consistent with s 31(4), enquiries were directed to be made as to her availability to attend court to give evidence. However, I was informed that Ms Tonga ‘was sick’.
43. During the trial, and in his closing submissions, Mr Piukala characterised and complained of the above apparent anomalies as involving fraud by or on behalf of Mr Saulala. Fraud is a serious allegation which must be distinctly pleaded and proved: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713.^[21]
44. I agree that the evidence of ‘Ahio and Sione on these matters gave rise to serious disquiet. However, on the other hand, as elderly gentlemen, they both understandably seemed unsure at times in their evidence and had difficulties with their recollections. It is also to be noted that after Sione gave his evidence, and in an obvious attempt to address the situation, Mr Edwards asked each of his subsequent witnesses whether they swore their affidavits before Ms Tonga on 18 March 2022. Each of Kilistina Saulala, Samuela Felemi, Semisi Vea, Mema Latu, Fe’ofa’aki Tu’i’onetoa and Viliami Latu confirmed that they did.
45. In light of the above, I have proceeded with caution when considering ‘Ahio Tauelangi’s March 2022 affidavit and Sione Kolo’s affidavit. I am also sufficiently concerned about the matter, without expressing any view on it one way or the other, to refer it to the Director of Public Prosecutions for any further investigation into potential breaches of relevant laws, as he may consider appropriate. That decision, not taken lightly, was also reinforced for the reasons set out below in relation to the second claim, for which, ‘Ahio’s March affidavit was deployed by Mr Saulala.

SUBMISSIONS

46. Both counsel filed detailed, and in the case of Mr Piukala, quite lengthy, submissions. I have carefully considered them all as I have the evidence adduced in respect of each claim. However, for the sake of attempted judicial economy, in the analysis of each claim below, I have recited or summarised only the more salient of the submissions.

FIRST CLAIM - $100

Evidence

Hengihengi Kolo

47. By his two affidavits, Hengihengi Kolo deposed to the following.
48. Between 4 p.m. and 5 p.m. on 28 September 2021, Mr Saulala stopped by Hengihengi’s tyre repair shop in Tofoa. Mr Saulala’s black Mazda vehicle (license number L21109) was being driven by Stanley Felemi. Stanley called out to Hengihengi to see if he had time to talk. Hengihengi called back to Mr Saulala that he still had several customers to serve, and that Mr Saulala could come back later after the shop was closed for the day. Mr Saulala asked Hengihengi what time his shop closed. Hengihengi said 8 p.m.. Mr Saulala said that was fine and that he would come back after the shop closed so that they could talk.
49. Mr Saulala returned between 8 and 9 p.m.. Hengihengi told his two employees to go and have a rest under a mango tree so that he could talk with Mr Saulala. The employees put out chairs for Mr Saulala to sit on.
50. Mr Saulala told Hengihengi that his reason for stopping by was because he had just registered his name as one of the candidates for their constituency in the upcoming national elections on 18 November 2021, and that he was encouraged to run for Parliament because he knew that there were a lot of reliable people in Tofoa. Mr Saulala then asked Hengihengi to be part of his campaign team. Hengihengi said that he was available if Mr Saulala wanted his assistance, but that Mr Saulala should know that he was with the PTOA campaign team, that their candidate was Mr Piukala and that Hengihengi still supported the vision of the PTOA. Mr Saulala replied that he was running as an independent candidate.
51. Mr Saulala then asked Hengihengi which political side he believed would bring blessings to their constituency. Hengihengi said the side that values the principle of good governance. Mr Saulala disagreed and said that the reason he crossed the floor to the Nobility side in 2012 was because he believed that they would bring blessings to his constituency, and that after he did, the constituency did receive many benefits. Hengihengi said that he understood that, but he still believed in working for the betterment of the whole country, meaning all the people of Tonga.
52. Mr Saulala then said that one of his aims was to make sure that the person elected for the constituency came from Tofoa. He said he would assist businesses in the constituency including Hengihengi’s. Hengihengi told him not to worry about his business, but Mr Saulala laughed and reiterated that it was one of his aims.
53. Hengihengi told Mr Saulala that differences in their political beliefs should not hamper^[22] their relationship. Mr Saulala agreed and said that whoever was voted into Parliament should be given all their support.
54. Hengihengi then thanked Mr Saulala for stopping by and repeated that he was available. Mr Saulala then called his son to come and take a photo of the two of them. As Hengihengi and Mr Saulala shook hands, Hengihengi felt something placed in his hand. He looked and saw that Mr Saulala had put money in his hand. Hengihengi asked him what it was for. Mr Saulala told him that the money may be of assistance to his family and reminded Hengihengi to remember him during the election. Hengihengi told Mr Saulala to take his money, but Mr Saulala laughed and walked over to his vehicle, insisting that Hengihengi keep it. Hengihengi put the money in his pocket and said goodbye to Mr Saulala Hengihengi estimated that the conversation took about half an hour.
55. By that time, Hengihengi’s employees were asleep. He woke them up and locked the shop. He went into his office and took out the cash which consisted of two $50 notes. He did not want his employees to know that Mr Saulala had given him the money because of the upcoming election.
56. When Hengihengi returned to his home behind his shop, he explained to his wife that Mr Saulala had given him $100 and told him to remember Mr Saulala during the election.
57. During his cross-examination, Hengihengi gave the following further evidence.
58. He confirmed he was a strong supporter of the PTOA party. He was asked about a billboard or banner erected at the front of his property advertising the PTOA. He said that Mr Piukala had given him the poster and asked him to put it up. The poster showed all the PTOA candidates, not just Mr Piukala. Hengihengi agreed and he erected it four days after the registration day. He said that none of the preparation for that work had been done when Mr Saulala visited and he denied saying anything to Mr Saulala about the banner during their conversation. Mr Edwards then put to Hengihengi that Mr Saulala gave him the $100 to give to Hengihengi’s uncle, Sione Kolo, who lived next door. Hengihengi explained that Sione was 76 years of age and was, at the time, in his home and quite ill. Hengihengi denied Mr Edwards’ suggestion about the purpose of the money and repeated that when Mr Saulala gave it to him, he said it was to assist Hengihengi’s family and for Hengihengi to remember Mr Saulala at the election, which he understood to mean to vote for Mr Saulala. Hengihengi did not give the money to Sione and neither Mr Saulala nor anyone on his behalf ever followed up with Hengihengi to see if he did give it to Sione.
59. Towards the end of the evidence phase of the trial, Hengihengi was recalled. He then said that the distance between where Mr Saulala’s vehicle was parked and where he and Mr Saulala were sitting in front of his shop during their discussion was between 6 and 7 metres. He added, that on the night in question, there was other traffic driving by, and that it was ‘not quiet’.

Mele Tiulipe Kolo

60. Mele Kolo is Hengihengi’s wife. She deposed that on 28 September 2021, at around 9 p.m., Hengihengi returned from work and told her that Mr Saulala had visited and that after their conversation, Mr Saulala gave Hengihengi two $50 notes and asked him to remember to vote for Mr Saulala on the day of the election.
61. Mr Edwards did not require Mele for cross-examination.

Mr Saulala

62. In his first affidavit, and in relation to this claim, Mr Saulala deposed to the following.
63. In his Response to the Petition, filed on 5 January 2022, Mr Saulala denied this claim on the basis that he never gave Hengihengi any money and that he only ever gave Sione $100 in the second week of July 2021.^[23] However, Mr Saulala stated that he wished to correct that statement by saying that he recalled visiting Sione in July 2021 and again on 28 September 2021, and that on both occasions, he gave Sione money. Nevertheless, Mr Saulala maintained the correctness of the statement in his Response that he gave $100 to Sione but sought to clarify that to mean that, on 28 September 2021, he gave the money to Hengihengi to give to Sione.
64. Mr Saulala explained that he remembered the September gift only after he filed his Response. He said that, at that time, he had just been appointed as a Minister and had “a lot of things going on”. He “picked up the error” when he was looking through his diary and he recalled the date as being the day for registration of candidates.
65. Mr Saulala stated that the money was not paid for the purpose of influencing any voter nor was it paid to induce Hengihengi to vote for him. He then explained that the President of his church at the time was Rev. Nesiasi Kolo, who succeeded Mr Saulala’s father as President of the church and who was Sione’s older brother. Mr Saulala described his family as having a ‘long and close working relationship’ with Rev. Nesiasi since the Tokaikolo Christian Church started in 1980. Rev. Nesiasi permitted Mr Saulala and his family to live in the President’s accommodation while Rev. Nesiasi was in Australia. Rev. Nesiasi asked Mr Saulala to visit Sione to see how he was getting on and whether he needed any assistance. Mr Saulala was able to visit Sione in July and September 2021.
66. In relation to the events of this claim, Mr Saulala deposed that on 28 September 2021, he went to see Sione, but upon arriving at his home, it was dark. He then met with Sione's nephew, Hengihengi, at his tyre repair shop. Mr Saulala was told that Sione was asleep and as a result, he did not see him. As to the ensuing exchange between he and Hengihengi, Mr Saulala simply stated:

“I spoke with Hengihengi and I gave him the $100 to give to his uncle Sione Kolo.”

67. Mr Saulala described Hengihengi as a ‘known and very strong PTOA supporter’ and one of Mr Piukala’s supporters. Hengihengi told him that Mr Piukala had asked him to put up a hoarding on his property. As that was not his concern, Mr Saulala responded to the effect that that was fair enough and that they should all support whoever wins the election.
68. In denying the allegation of bribery, Mr Saulala added:^[24]

“To give him money for that purpose would be wrong and utterly useless. With respect, I am not so stupid to give Hengihengi money to vote for me given his position of a PTOA supporter of the Petitioner and that the Petitioner will be erecting his hoarding on the property”.

69. In his supplementary affidavit, filed 25 March 2022, Mr Saulala gave the following further evidence.
70. He denied going to Hengihengi’s shop between 4 and 5 p.m. on 28 September 2021. He explained that on that day, after 2 p.m., he and his family went to the Electoral Commission at Small Industries and waited until approximately 3 p.m. when the registration of candidates closed. All the candidates of Tongatapu were present outside the office for the announcement of the names of the candidates and their order on the ballot paper. After the order for Tongatapu 7 was announced, he stayed and talked with other candidates until approximately 5 p.m.. He then left with his family and they drove around and purchased food before going to his wife’s office at the Christ University of the Pacific. After his wife finished her work, they returned home at approximately 7 p.m..
71. Mr Saulala then reiterated that he went to visit Sione after 8 p.m. and when he got there, it was dark. When he spoke with Hengihengi, Mr Saulala said he “did not want to disturb “the old man” and to let him rest”. Mr Saulala denied ever asking Hengihengi to support him or vote for him.
72. In confirming that his purpose in visiting Sione was because Rev. Nesiasi had asked him to see Sione, Mr Saulala then stated:

"In line with our custom, when visiting an elderly person, we give them a present whether it would be $100 or some food or other goods. I was living rent free on the Presidential accommodation... and I gave the $100 to be given to Sione Kolo and not for Hengihengi Kolo”.

73. Mr Saulala added that visiting Sione was “not something new or occurs only during the election”. He had been there on different occasions. For instance, he was at the home for the funeral service of a son who died in Australia in March 2021. Photos of that occasion were exhibited to his affidavit. He repeated that he had a close working relationship with the Kolo family.
74. During his cross-examination, Mr Saulala gave the following further evidence.
75. When Mr Piukala challenged Mr Saulala in relation to paragraph 2 of his Response where he stated that he “did not and will not give $100 or any money to Hengihengi Kolo who is a strong PTOA member and support of the Petitioner”, Mr Saulala explained that he had given the money to Hengihengi but that it was intended for Sione. In addition to visiting Sione because Rev. Nesiasi had asked him to, Mr Saulala also wanted to tell Sione that he had registered as a candidate for the election. He did not follow up with Sione about the money because he trusted Hengihengi and Sione was his uncle. This was the only time he ever spoke with Hengihengi.
76. Mr Saulala returned to see Sione about one or two weeks later. He described Sione then as being happy about Mr Saulala running for office as Sione was a “big supporter”. There was no discussion about the $100.
77. He visited Sione on other occasions too. At different times during his evidence, Mr Saulala described the frequency of those visits as “a few times”; then “5 or 6 times per year”; then he said he was not sure because he didn’t count them; and later, that he visited Sione “maybe 3 or 4 times” prior to July 2021.
78. When asked further about their conversation, Mr Saulala gave the following account. He had a ‘brief talk’ with Hengihengi which he estimated took ‘about 10 minutes’. Hengihengi asked after Mr Saulala’s family and about the President of the Church who was still in Australia. Hengihengi asked Mr Saulala if he was running in the election. Hengihengi told Mr Saulala that his aunt was a ‘big supporter’ of Mr Saulala and that his wife would be voting for Mr Saulala too. They then talked about the PTOA banner that Hengihengi had been asked to erect. Mr Saulala said that if all the candidates ‘campaigned in good spirit’, then they should support whoever wins. Hengihengi then asked Mr Saulala to take him with him if Mr Saulala went anywhere during his campaign. Mr Saulala thought that was ‘very strange’ because he knew Hengihengi was a PTOA supporter and so he thought that perhaps Hengihengi ‘wanted to spy on him’. Hengihengi then told Mr Saulala that it would be good for all the candidates to campaign together. Mr Saulala said that that would be ok with him because he was running as an independent, but that it would up to the other candidates. Mr Saulala then asked about ‘the old man’.
79. Mr Saulala described it as a ‘good conversation’. He had the photo of he and Hengihengi sent to Rev. Nesiasi, with whom he spoke later that night about what had happened. Mr Saulala also posted the photo on his Facebook page. Mr Saulala said there were two other boys in his vehicle, one of whom took the photo. He was not Mr Saulala’s son, just a boy staying at his residence. He described the photo as being important to show Rev. Nesiasi that he had visited ‘Sione’s place’. Mr Saulala concluded by saying that he ‘often had photos taken with people during his campaign’.

Samuela Sitenili Felemi

80. Samuela Felemi was Mr Saulala’s driver on 28 September 2021. In his affidavit, sworn 18 March 2022, Samuela deposed to the following.
81. On that evening, he drove Mr Saulala, Tukupa Ngahe and William Saulala to Sione Kolo’s residence in Tofoa. On their way over, Mr Saulala told him that Rev. Nesiasi Kolo had asked him to visit Sione and take some assistance to him. When they arrived, Sione’s residence was dark. Sione’s nephew, Hengihengi (also known as Maikolo) Kolo was standing in front of the house where his repair shop is located. Mr Saulala told Samuela that he would go and say hello to Hengihengi and give his assistance to Sione and let him rest.
82. Samuela remained in the vehicle and listened to the conversation between Mr Saulala and Hengihengi. He said they talked about the family, and that it was clear that Sione and Rev. Nesiasi ‘were doing alright’, and then they talked about Hengihengi’s workshop. Hengihengi said that his work was a bit more challenging now because two other workshops were servicing the same market. Mr Saulala told Hengihengi that he wants to help small businesses because they will build the economy of the country. Hengihengi told Mr Saulala that his aunty was a strong supporter of Mr Saulala and that his daughter was of voting age as well. Hengihengi told Mr Saulala that a candidate from Ha’ateiho named Piveni Piukala wanted to put up a banner at his home. Mr Saulala said that that was good because he wanted campaigning to be done in ‘a good and open spirit’, and that whoever won should have everyone’s support. Mr Saulala then stood up for a photo with Hengihengi. The photo of the two men, with Mr Saulala’s hand on Hengihengi’s shoulder, was exhibited to Samuela’s affidavit. Samuela then heard Mr Saulala say to Hengihengi: “Give this to Sione Kolo”. He did not see what Mr Saulala gave Hengihengi. The two shook hands and Mr Saulala returned to his vehicle. Hengihengi followed behind Mr Saulala saying: “that is the truth” and for Mr Saulala to call him when he “goes campaigning”.
83. During his cross-examination, Samuela gave the following further evidence.
84. No one checked to see if Sione was in his house. Samuela only saw Hengihengi out the front of his shop. He did not see any other employees. He denied that Hengihengi told any employees to take a rest under the tree. He heard the whole conversation between Mr Saulala and Hengihengi which lasted about 15 minutes. The distance between where he was seated in the parked vehicle and where Mr Saulala and Hengihengi were talking was only about 2 to 2.5 metres. The vehicle was parked at an angle to where the men were seated on chairs in front of the tyre shop facing the road near where the air compressor was located. He reiterated that as Mr Saulala was leaving, Hengihengi walked after him saying: “That’s the truth, give me a call, and we’ll go campaigning together”.
85. When asked about when he was first asked to recount the conversation, Samuela said that when Mr Saulala received the Petition, he asked Samuela, who lives at Mr Saulala’s residence, about the events alleged in relation to this claim and they talked about it. Mr Saulala did not write down what Samuela recalled. Samuela did not speak to Mr Edwards about his evidence either. It was Kilistina Saulala, Mr Saulala’s wife, who typed his affidavit, sometime between talking to Mr Saulala and 18 March 2022.
86. Samuela said he was able to recall this event in detail because it was the day they went to take money to Sione. When asked why he did not specify in his affidavit the time they arrived that night, Samuela said that they arrived about 8 p.m. because he remembered that they did some shopping earlier. They then picked up Kilistina from her work and went home before going out again at about 8 p.m. to give the money to Sione. He then said that they went to see Sione because ‘the President’ called around lunchtime that day asking Mr Saulala to go and see Sione. He denied that they went to Hengihengi’s place earlier that day around 4 p.m. or 5 p.m..

Sione Kolo

87. Notwithstanding the controversy surrounding the swearing of his affidavit, when he was called to give evidence, Sione Kolo affirmed the contents of his affidavit. In it, Sione deposed to the following.
88. He lives at Tofoa with his nephew, Hengihengi Kolo. Rev. Nesiasi Kolo is Sione’s younger brother who had been living in Australia for many years. Because of Nesiasi, Sione’s family and Mr Saulala’s family have “helped each other for many years” as if they are “one family”. In 2020, after Mr Saulala’ father passed away, Rev. Nesiasi became the President of the Tokaikolo Church and he permitted Mr Saulala and his family to live at the Presidential residence at Lavengamalie. Mr Saulala has “regularly assisted” Sione and his family with groceries and money “right up to this year”. Sione and Mr Saulala have “worked together” since 2006 when Mr Saulala was Chairman of the Board of Tonga Rugby. Sione “greatly supported” Mr Saulala because he gave the greatest financial rewards to the individual rugby players. Sione added that when Mr Saulala was elected as representative for Tongatapu 7 in 2010 to 2014, it was the “best time for the living and people” at his village as Mr Saulala established many sporting projects and Christian programs. The people of the village were so “exuberant” that they established a “Tofoa Day” to “celebrate and express their joy”. Once Mr Saulala was no longer in Parliament, Tofoa declined and there was no longer any Tofoa Day to unite the village people. Last year, when he heard that Mr Saulala was running for Parliament, Sione was “very happy” because he knew Mr Saulala would establish projects to advance his village and to keep the youth away from drugs.
89. When Mr Saulala visited Sione’s home, he did not talk about campaigning for Parliament. He only enquired about how Sione was doing, and he conveyed Nesiasi’s love. Sione told Mr Saulala that Nesiasi had called and asked Sione to support Mr Saulala. Sione told Nesiasi that if he had an opportunity, he would support Mr Saulala by going on one of his television programs, which he did.
90. Sione’s affidavit concluded with a statement that Mr Saulala had not given Sione any assistance with the objective of bribing him and that “they were only our usual givings as we used to help each other for many years”.
91. During his cross-examination, and apart from the circumstances surrounding the signing and filing of his affidavit, Sione gave the following evidence.
92. Mr Saulala did not give him $100 in July or September 2021. In the second week of July 2021, Mr Saulala visited and gave him some shopping, but he did not recall being given any money. Prior to 28 September 2021, and after Rev. Nesiasi became President, Mr Saulala visited Sione two or three times and gave him money and food and visited him when he was sick. In previous years, Mr Saulala had visited him frequently and given him shopping. Mr Saulala also came to family funerals and provided support. He usually visited Sione at lunch time, and only sometimes in the evening. Mr Saulala has not asked Sione if he received $100 from Hengihengi.

Submissions

93. Mr Piukala submitted, in summary:
    • (a) As Mr Saulala had admitted that he gave $100 to Hengihengi Kolo, who is a registered voter for the “TT7” constituency, within 3 months of the election, the burden of proof falls on Mr Saulala to prove, on the balance of probabilities, that his intention was not to influence Hengihengi’s vote.
    • (b) In reply to Mr Edwards’ submission, referred to below, that if Mr Saulala said the money ‘was for the family’, then that is consistent with it being intended for Sione, but not Hengihengi, Mr Piukala argued that any gift for someone’s family is not only for the family, but also for the person to whom it is given, because “anything that benefits a family benefits all its members”. Therefore, by accepting Hengihengi’s evidence on this point, Mr Saulala must be taken to have confirmed that the money was given for “anything useful for the family” which does not mean only for Sione, nor did it mean not for Hengihengi either.
    • (c) A comparison between Mr Saulala’s Response on 5 January 2022 and his affidavit sworn 18 March 2022, reveals “inconsistency and confusion”, raises “questions about his reliability” and “it is clear that Mr Saulala is not being truthful”.
    • (d) Further to Mr Piukala’s concerns noted above, Sione Kolo’s affidavit “is a forged document” that was designed by Mr Saulala “to corrupt the trial process and to misplace justice” and cannot be relied upon.
    • (e) Samuela Felemi “lied” in his evidence because:
      • (i) in his affidavit [3], Samuela said that Mr Saulala told him on their way over to visit Sione that Nesiasi Kolo had asked Mr Saulala to visit Sione and take assistance to him; whereas, during cross-examination, Samuela said that Nesiasi called Mr Saulala while he was driving around noon that day;
      • (ii) Samuela’s evidence of a distance of only about two metres between where he was in Mr Saulala’s vehicle and where Mr Saulala and Hengihengi were talking “is not practical for a tyre shop to be that close to the side of the road”. Hengihengi’s estimate of about six to seven metres is “more practical given the nature and actual location of the tyre repair shop”; and
      • (iii) Samuela’s evidence that he heard the whole conversation does not make sense given the loud noise from the cars on the main road in Tofoa which is a loud area.
    • (f) Mr Saulala influenced his driver to provide false information and to lie under oath.
    • (g) Rather than prove that his intention in giving the $100 was innocent, Mr Saulala had, in fact, “exposed a bigger can of worms” by lying in Court and “fabricating” Sione’s affidavit.
    • (h) For those reasons, on the balance of probabilities, the elements of the offence of bribery per 21(1)(a) of the Act have been proven.
    • (i) Further, it is possible that Mr Saulala and his driver have breached ss 63 and 64 of the Criminal Offences Act (perjury and making a false statement).
94. Mr Edwards submitted, in summary:
    • (a) In relation to the $100, Hengihengi used the words, in Tongan, “na’a ‘aonga ki he famili” meaning it might be of some use to the family. Apart from what Hengihengi added - to remember Mr Saulala in the election - the giving appears to be for the family or someone in the family, not Hengihengi, which was “in line with” the explanation by Mr Saulala and his witness who heard the conversation, that the money was given for Sione.
    • (b) It is clear from Hengihengi’s evidence, that right from the beginning, both their positions were clear. Hengihengi was a strong supporter of and believer in the PTOA party, for which Mr Piukala was the candidate for Tongatapu 7.
    • (c) Mr Saulala’s evidence was supported by his driver, who was only about two metres away. In particular, Samuela heard Mr Saulala tell Hengihengi to “give it [the $100] to the old man”.
    • (d) There was no protest from Hengihengi, as claimed by him in his affidavit.
    • (e) Mr Saulala knew that Hengihengi was a strong supporter of the PTOA party and Mr Piukala, and therefore he would not give Hengihengi money to vote for him.
    • (f) The reason for giving the money was because of Sione’s relationship with Rev. Nesiasi and Mr Saulala’s relationship with Sione’s family.
    • (g) Hengihengi’s evidence that between 4 p.m. and 5 p.m. that day, Mr Saulala and his driver came by his shop to confirm the appointment at 8 p.m. to see him, was strongly denied by Mr Saulala and Samuela.
    • (h) There is a “strong difference” between the evidence of Hengihengi and that of Mr Saulala and his driver. Mr Saulala’s evidence was corroborated; Hengihengi’s was not.
    • (i) There is “considerable doubt” in the evidence of Hengihengi who, as a strong supporter of the PTOA party, “is not free from bias”. It would be wrong to rely on the evidence of Hengihengi “given the clear and strong evidence” of Mr Saulala and Samuela Felemi.

Consideration

95. As Mr Piukala identified, Mr Saulala admitted giving the $100 to an elector within three months of the election. Therefore, pursuant to s 21(3) of the Act, the money is deemed to be a bribe unless Mr Saulala proves the contrary, that it, that it was not given to influence the vote, but for an innocent purpose.
96. While the contest here then is primarily between the evidence of Hengihengi on the one hand and that of Mr Saulala and his driver, Samuela Felemi, on the other, as to the purpose for which Mr Saulala gave Hengihengi the $100, a review of all the evidence in relation to this claim leads to me prefer the evidence of Hengihengi for the following reasons:
    • (a) Mr Saulala’s explanations for the seismic shift in his case as stated in his Response to that in his first affidavit were unconvincing. The Petition specified that the money the subject of this first claim was given on 28 September 2021. It is reasonable to expect therefore that Mr Saulala would have consulted his diary for that day in deciding, and before signing, his Response on 29 December 2021 (filed 5 January 2022). For him to have only identified what he described as being an ‘error’ when he prepared his first affidavit in March 2022, almost six months after the day in question, is in my view, unlikely. Further, it was not clear whether his reference to his diary meant that he also recorded in his diary the giving of the money for Sione. In any event, his diary excerpts for that day, or the day in July 2021 when he said he visited Sione and gave him money then too, were never produced or tendered in evidence.
    • (b) While Sione’s evidence did support Mr Saulala’s in relation to previous visits and assistance over some years, it did not support Mr Saulala’s evidence of having given Sione money in July or September 2021, nor of Mr Saulala coming to see him one or two weeks after the night in question.
    • (c) Mr Saulala referred to the money as being “in line with our custom”. As noted at paragraph 31(f) above, any implication thereby that ‘gifts’ handed out for reasons of custom or to family members or supporters cannot in any circumstances be said to be corruptly given, is[25]ncorrect.²⁵ Apart from his assertion, there was no evidence adduced of any Tongan custom by which a person in Mr Saulala’s position was required, or even expected, to give $100, or any sizeable sum of cash, to a man in Sione’s position, namely, the relative of a friend of Mr Saulala’s family. Moreover, there was no evidence that Mr Saulala made it clear to Hengihengi that the money was a gift made in custom. Further, in his closing submissions, Mr Edwards did not seek to rely on custom as an innocent explanation for the gift. It is more likely, in my view, that Mr Saulala’s previous gifts to Sione were a token of reciprocity for Rev. Nesiasi’s generosity towards Mr Saulala and his family by permitting them to live in the church’s presidential accommodation.
    • (d) Every time Mr Saulala referred to the events leading to, and of, his meeting with Hengihengi, his evidence evolved with further or different details to his previous versions. His only detailed account of his conversation with Hengihengi was during his cross-examination in court.
    • (e) By that time, Mr Saulala had in his possession all the affidavits of the other witnesses in the case, including Hengihengi’s and Samuela’s. By his last account, Mr Saulala’s evidence appeared as a patchwork quilt of parts from Hengihengi’s account and others from Samuela’s.
    • (f) That Samuela, who lives with Mr Saulala, discussed his evidence with Mr Saulala when Mr Saulala first received the Petition casts doubt on the independence of Samuela’s evidence.
    • (g) Mr Saulala’s wife, Kilistina, gave evidence in relation to the third claim. However, for reasons which were not explained, she was not called to give evidence about the events earlier in the afternoon in relation to this claim where Mr Saulala and Samuela denied going to see Hengihengi between 4 p.m. and 5 p.m. to arrange to see him later that evening. Then again, it was not clear on their evidence whether they dropped Kilistina off at her work and then picked her up later or whether they waited for her at her work. The former leaves open the opportunity for the men to have visited Hengihengi in the afternoon.
    • (h) Apart from Mr Saulala’s statement that he was “not so stupid” to give money to Hengihengi, and that to do so would have been “wrong and utterly useless”, being somewhat hackneyed, Mr Saulala never explained the basis for his asserted prior knowledge of Hengihengi’s political affiliations. After all, according to Mr Saulala, the two had not spoken before that night.
    • (i) Contrary to Mr Edwards’ submission, Samuela’s evidence did not fully corroborate Mr Saulala’s. For instance, Mr Saulala never specified when Rev. Nesiasi^[26] asked him to visit Sione or why he did so on the evening of 28 September 2021. Samuela first said that it was when they were on their over to Sione’s residence that Mr Saulala first told him where they were going and why. But later in his evidence, Samuela said that it was around lunchtime that day that “the President” called Mr Saulala and asked him to check in on Sione. There were also other, more significant, differences between the evidence of Mr Saulala in court and Samuela, in particular, in relation to Mr Saulala’s conversation with Hengihengi, which may be illustrated by the following side-by-side comparison:

Mr Saulala (in court)	Samuela Felemi
Hengihengi asked after Mr Saulala’s family and about the President of the Church who was still in Australia.	They talked about the family, and that it was clear that Sione and Rev. Nesiasi ‘were doing alright’
Hengihengi asked Mr Saulala if he was running in the election.	Then they talked about Hengihengi’s workshop. Hengihengi said that his work was a bit more challenging now because two other workshops were servicing the same market.
Hengihengi told Mr Saulala that his aunt was a ‘big supporter’ of Mr Saulala and that his wife would be voting for Mr Saulala too.	Hengihengi told Mr Saulala that his aunty was a strong supporter of Mr Saulala and that his daughter was of voting age as well.
-	Mr Saulala told Hengihengi that he wants to help small businesses because they will build the economy of the country.
They then talked about the PTOA banner that Hengihengi had been asked to erect.	Hengihengi told Mr Saulala that a candidate from Ha’ateiho named Piveni Piukala wanted to put up a banner at his home.
Mr Saulala said that if all the candidates ‘campaigned in good spirit’, then they should support whoever wins.	Mr Saulala said that that was good because he wanted campaigning to be done in a good and open spirit, and that whoever won should have everyone’s support.
Hengihengi then asked Mr Saulala to take him with him if Mr Saulala went anywhere during his campaign.	-
Hengihengi then told Mr Saulala that it would be good for all the candidates to campaign together. Mr Saulala said that that would be ok with him because he was running as an independent, but that it would up to the other candidates.	-
-	Mr Saulala then stood up for a photo with Hengihengi.
Mr Saulala then asked about ‘the old man’.	Samuela then heard Mr Saulala say to Hengihengi “Give this to Sione Kolo”. He did not see what Mr Saulala gave Hengihengi.
-	The two shook hands and Mr Saulala returned to his vehicle. Hengihengi followed behind Mr Saulala saying: “that is the truth” and for Mr Saulala to call him when he “goes campaigning”.

(j) Samuela’s demeanour in court was, at times, noticeably odd. He repeatedly slapped his right elbow with his left hand and his right leg kept shaking.^[27] Those peculiarities suggested he was either impatient or nervous about either having to give evidence or the evidence he was giving, or both.
(k) Further, Samuela’s ability to recount the conversation was based on his assertion that he was only 2 to 2.5 metres from it. For reasons which were never explained, neither party produced or tendered in evidence photographs of the scene, although Mr Piukala tried to show Samuela his phone at one stage during cross-examination, which presumably had a photo of the location on it. Notwithstanding, common experience of the Tofoa area would suggest that the distance stated by Samuela would have had Mr Saulala and Hengihengi sitting just on the other side of the footpath from the road. I agree with Mr Piukala, and for the reasons he submitted, that it is highly unlikely that a tyre repair shop could be situated so close to the road. Such repair shops are typically required to be set back further from the road to permit vehicles to turn in and park in front of the shop off the road to, for example, have their tyres inflated. That service requires an air compressor, just like the one Samuela referred to when describing where Mr Saulala and Hengihengi were sitting. I therefore consider the distance of 6 to 7 metres given by Hengihengi to be more likely. I also accept, as equally likely, that there was other passing vehicular traffic that night and which would have created some noise. For those reasons, it is unlikely Samuela was able to hear the conversation, or at least, not all of it. On that basis, and conversely to the seemingly constructed evidence of Mr Saulala, Samuela’s evidence of the conversation is likely, in my view, to have been informed, at least in part, by his discussions with Mr Saulala when they first considered the Petition.
(l) Mr Edwards’ submission that Hengihengi’s evidence should not be accepted because, “as a strong supporter of the PTOA party”, his evidence was “not free from bias”, cuts both ways. That is, the same may be said of Mr Saulala’s evidence, and to a much greater degree, given he was the one running for office.
(m) Mr Edwards’ skepticism about Hengihengi’s reliability did not seem to be shared by Mr Saulala at the time. His explanation for not following up with either Hengihengi or Sione (even when he said he visited Sione one or two weeks later) about whether Hengihengi had in fact given the $100 to Sione, was that he trusted Hengihengi. How he formed that sense of trust was unclear particularly given that Mr Saulala testified that he only spoke with Hengihengi on the night in question.

97. By contrast, I found Hengihengi’s evidence to be frank, clear and consistent throughout. By both his demeanour and his entirely steadfast responses to Mr Edwards’, at times, forceful cross-examination (without looking at his affidavits once), Hengihengi struck me as precisely the sort of man (which according to his account of what Mr Saulala told him) Mr Saulala was looking for when he visited him, namely, reliable. In my assessment, so too was Hengihengi’s evidence.
98. There are also other, more objective, reasons for preferring Hengihengi’s evidence as more reliable and his account more likely than that of Mr Saulala and Samuela.
99. Firstly, it is more likely in my view that Mr Saulala did go to Hengihengi’s place earlier that day because:
    • (a) Mr Saulala had just registered as a candidate. Therefore, it is highly likely, as he told Hengihengi, that he was then looking for reliable people to join his campaign team. But, at that time, Hengihengi was busy with customers.
    • (b) When the two men did meet later that evening, Hengihengi had chairs put out for Mr Saulala. That would suggest that Hengihengi knew or anticipated that Mr Saulala was there to talk with him, not just to give him money for Sione and then drive off. That too is consistent with the duration of their conversation which lasted somewhere between 10 or 15 minutes and half an hour.
    • (c) To ensure Hengihengi had time for a meeting like that with Mr Saulala, it would be likely that he arranged to see Hengihengi when did, after work.
100. Secondly, the affidavit evidence of Mele Kolo, Hengihengi’s wife, that her husband told her that Mr Saulala had given him money and asked him to remember Mr Saulala on election day, was not challenged.
101. Thirdly, by all accounts, almost the entire conversation was devoted to politics. Little, if anything, was said about Sione. That is strong support for an inference that the purpose of Mr Saulala’s visit was to talk to Hengihengi. If his only intention was to see Sione and give him some money, he could have simply asked Hengihengi to let Sione know that he’d come by and to give Sione the money, all of which would probably have taken less than a minute.
102. Fourthly, and alternatively, even if the purpose of Mr Saulala’s visit was initially to see Sione, once he saw or assumed that Sione was asleep, Mr Saulala used the occasion to talk to Hengihengi, at some length, about Mr Saulala running as a candidate and his political aspirations. The balance of the conversation was directed to Mr Saulala finding out more about Hengihengi’s political views. In doing so, Mr Saulala’s remarks would likely have given Hengihengi the impression, whether it was true or not, that they shared some similar views.
103. Fifthly, it was also common across all three accounts that Hengihengi offered to assist Mr Saulala with his campaign. That expression of interest was likely to have given Mr Saulala the impression that he might be able to swing Hengihengi’s vote away from the PTOA, especially as Mr Saulala was running as an independent. It is equally likely, therefore, that Mr Saulala’s gift of $100 was intended to encourage Hengihengi in that direction.
104. Sixthly, a careful examination of Mr Saulala’s account of the end of his conversation with Hengihengi reveals that he never actually or explicitly told Hengihengi when he gave him the cash, to give it to Sione (or the old man). Samuela’s evidence was that Mr Saulala did say that, but Samuela did not see what Mr Saulala gave Hengihengi, even though he was right in front of them. This point seems to have also been considered by Mr Edwards in the first of his submissions recited above. The submission was premised on an apparent acceptance of Hengihengi’s evidence that Mr Saulala told him the $100 “might be of some use to the family”, which, of course, was not part of Mr Saulala’s own evidence. Mr Edwards then extrapolated a meaning from the Tongan words used that the money was therefore intended for anyone in Hengihengi’s family, which included Sione, but excluded Hengihengi himself. The logic in the submission is defective. By that approach, it could equally mean that Hengihengi could have given the money wholly to his wife (part of his family) and not to Sione at all. In this regard, I prefer Mr Piukala’s submission. Further, the attempt to include Sione (but not exclusively) among those Mr Saulala was submitted to have intended the money to be given, only serves to distract from the fact that Mr Saulala’s actual evidence did not support the submission, and the fact that it was made, tends to further erode confidence in the evidence he did give.
105. Which brings me to the seventh reason. The manner in which Mr Saulala surreptitiously placed the $100 in Hengihengi’s hand when they shook hands was not at all consistent with his stated purpose for giving Hengihengi the money. If it was genuinely intended for Sione, one would have expected a more open display when giving the notes and a clear request that they be given to Sione as part of Mr Saulala’s usual assistance. In my view, the way in which Mr Saulala gave Hengihengi the money was not consistent with an innocent purpose. It was far more consistent with not wanting it to be seen by any onlooker (even his driver), including, at first at least, Hengihengi himself. In doing so, Mr Saulala sought to conceal the money because of what it was: a bribe.
106. Finally, to accept Mr Saulala’s evidence on this matter would necessarily require a finding that by not passing the money onto Sione, Hengihengi effectively stole from his elderly and sick uncle. That was never put to him and it would have been surprising if it had because, for the reasons stated above, Hengihengi did not present as the sort of man who would commit such a despicable and dishonest act. On the contrary, in my assessment, Hengihengi Kolo impressed at all times during the trial as an honourable man and a witness of truth.
107. For those reasons, Mr Saulala has failed to discharge the evidentiary burden of proving that the $100 was given for Sione or for any other innocent purpose. It follows that I am satisfied on the balance of probabilities that Mr Saulala gave Hengihengi Kolo $100 in order to influence his vote.
108. Accordingly, the first claim of bribery against Mr Saulala has been proven.
109. Even though by that finding alone, Mr Saulala’s election is to be declared void, in the event that a different view may be taken elsewhere of the result on this claim, I now proceed to consider the other claims.

SECOND CLAIM - $20 and chicken

Evidence

‘Ahio Tauelangi

110. In his January 2022 affidavit, ‘Ahio deposed to the following.
111. Between 4 p.m. and 5 p.m. on 16 November 2021, he was returning from his plantation. He stopped in front of Fehoko and Va’eiki’s residence and talked with their ‘children’. Mr Saulala’s vehicle stopped, and he joined the conversation. He told them that he went to drop off a box of chicken to the community police at Tokomololo. Mr Saulala ‘then offloaded a box of chicken’ for ‘Ahio and the others to distribute amongst themselves’. Just before he left, Mr Saulala gave ‘Ahio a $20 note. When ‘Ahio tried to return it, Mr Saulala insisted that he keep it for ‘anything he wanted to buy’ and then drove off.
112. That evidence may then be compared to the contents of ‘Ahio’s apparent March affidavit (filed on behalf of Mr Saulala) which, relevantly, contained the following.
113. Mr Saulala is his relative from his Takai mo Fa’e lineage. At a family reunion in 2017, he and Mr Saulala ‘fellowshipped warmly’. It is not new to anyone in his family or village how Mr Saulala helps people in need of assistance. He has helped ‘Ahio’s son, Tevita, who has a handicapped daughter. On Monday, 8 November 2021, he was returning from his plantation when he stopped to rest under a mango tree with ‘some others’. Mr Saulala’s vehicle drove by and stopped. He got out and they greeted each other. Mr Saulala told ‘Ahio he was happy to see that he was ‘still strong’ and could still go to his farm. ‘Ahio told Mr Saulala that ‘it was the grace of God that I am still alive’. They ‘did not talk about the election’ but ‘talked happily about seeing each other’. As Mr Saulala was about to leave, he said ‘I will come to the house with some assistance, but here is $20 to help out’. Mr Saulala then called to his driver to see if there was anything in the car and the driver said that there was a box of chicken. Mr Saulala then told the boys who were there to get the box of chicken and to take it to help feed ‘Ahio’s family.
114. Apart from questions about his two affidavits, as discussed above, ‘Ahio was not cross-examined by Mr Edwards about the gifts of $20 or the chicken. He was, however, asked about his family relationship with Mr Saulala and the family reunion in 2017. ‘Ahio remembered the reunion but said that he was not involved in it, that he was at his residence and that he did not meet with the family that day, including Mr Saulala.

‘Asaloni Tamale

115. ‘Asaloni Tamale is 27 years of age and a son of Fehoko and Va’eiki. He deposed to the following.
116. Two days before the election,^[28] between 4 p.m. and 5 p.m., he and his brother, Siupele, were in their front yard talking when ‘Ahio Tauelangi, whom they knew, was riding his bicycle back from his plantation and stopped to talk with them. A few minutes later, their younger brother, Sipiloni joined them. Not long after that, Samupeni Kiteau also joined them. As they were talking, Mr Saulala’s vehicle drove past towards where the local police were stationed. His vehicle later returned and stopped in front of the group. Mr Saulala called out to the boys to grab a box of chicken from the trunk of his vehicle. ‘Asaloni and Siupeli did so. ‘Ahio and Samupeni said that they did not want any of the chicken. ‘Ahio said that did not want any because he could afford to buy his own. ‘Asaloni interpreted ‘Ahio’s remark as him not wanting the chicken because it was ‘meant only to buy his vote’. ‘Asaloni then saw Mr Saulala give ‘Ahio $20 and asked that they all pose for a photo with him before he left. ‘Ahio tried to refuse the money, but Mr Saulala was ‘persistent’ and told him ‘to buy cigarettes’ with it. ‘Ahio then put the money in his pocket.
117. Mr Edwards put to ‘Asaloni that Mr Saulala never went to Pea on that day, but that he did go on 8 November 2021. ‘Asaloni denied that and confirmed that Mr Saulala came with the chicken two or three days before the election. He was able to first recall these events to Mr Piukala in February this year because it was ‘special to have someone like Mr Saulala give chicken’. He added that this was the first time Mr Saulala brought chicken to his home. He believed it was ‘for the election’. When he was asked whether Mr Saulala had previously given him or his family any gifts, ‘Asaloni explained that in the week before the above, Mema Latu, whom he knew because he lives in Tokomololo, came to his home and asked for his parents. ‘Asaloni told Mema that his parents were at their plantation. Mema then told ‘Asaloni to come and get bags of chicken which he had brought from Mr Saulala. ‘Asaloni confirmed that neither Mr Saulala, nor anyone on his behalf, had ever given his family any gifts prior to those occasions.

Siupeli Tamale

118. In his affidavit, Siupeli Tamale, who is 25 years of age, gave almost identical evidence to that of his brother, ‘Asaloni. Copying and pasting the contents of affidavits for different witnesses, presumably for the sake of convenience, and even where their evidence is very similar, is not to be condoned. An affidavit should be an intelligible and coherent record of the relevant evidence of a witness in his or her own words. Nonetheless, Siupeli confirmed his affidavit under oath and he was not challenged on this feature of it. He also added that after Mr Saulala left, he and his brother (he did not specify whether it was ‘Asaloni or Sipiloni) took the whole box of chicken to their home. He knew that it was meant to influence them to vote for Mr Saulala at the election.
119. Siupeli’s evidence was not challenged in cross-examination.

Mr Saulala

120. In his first affidavit, Mr Saulala deposed to the following in relation to this claim.
121. He admitted giving $20 to ‘Ahio but said that it occurred on 8 November 2021, not the 16^th. He described ‘Ahio as ‘family’ and that he had been helping ‘Ahio and his family since the family reunion in 2017. ‘Ahio had just returned from working on his plantation and ‘he looked tired’, so Mr Saulala gave him $20 and told him to buy food with it. He said that ‘this was not a case of giving $20 to a stranger and asking him to vote for me’. When he was later asked about how he is related to ‘Ahio, Mr Saulala could only refer to the family reunion in 2017. He did not know the precise nature of any blood relationship between him and ‘Ahio.
122. Mr Saulala denied that the Petition contained any allegation that he had given a box of chicken to ‘Ahio. As Mr Saulala recalled it, a man by the name of Fe’ofa’aki Tu’i'onetoa had asked him for some chicken, from which Mr Saulala had a leftover box, which he gave to ‘Ahio. Mr Saulala stated that when he gave ‘Ahio the box, he did not ask ‘Ahio to vote for him or to remember him on the day of the election. The gift, Mr Saulala said, was part of his ‘overall assistance’ to ‘Ahio and his family over the years. In his supplementary affidavit, Mr Saulala exhibited what he described as a photograph of him and ‘the old man, ‘Ahio’, which was taken on 8 November 2021 when Mr Saulala gave ‘Ahio the $20 to buy food (exhibit E). It also partially showed two other men standing behind them.
123. During his cross-examination, Mr Saulala gave the following further evidence.
124. He was certain the above events took place on 8 November 2021 because he posted photos of his visit with ‘Ahio on Facebook and which included exhibit E to his supplementary affidavit. However, when Mr Saulala opened his Facebook account on his phone to confirm the date of his post, it showed that exhibit E was, in fact, a cropped version of the original photo. That original and four others he posted all showed Mr Saulala, ‘Ahio and the four men referred to in the evidence of the Tamale brothers above, and the box of chicken on the ground in front of them. A colour copy of the full photographs, as posted by Mr Saulala on 8 November 2021, was later provided and received into evidence (Exhibit P1).
125. Mr Saulala was also asked about paragraph 11 of his Response in which he stated that the above events occurred at Ha’ateiho. He agreed that was wrong and that the meeting took place at ‘the border between Pea and Tokomololo’. He described the earlier reference to Ha’ateiho as ‘an honest mistake by the typist’ and that in his first affidavit, he referred to Tokomololo. A review of both his affidavits filed in the proceeding did not reveal any reference to Tokomololo in relation to this claim.
126. When he was asked whether he agreed with the factual allegations in paragraph 3 of the Petition, Mr Saulala eventually said that he had told his driver to give ‘Ahio a box of chicken, that the chicken was put in front of ‘Ahio and that ‘the boys might have got it from the back of his car’.
127. Mr Saulala was also asked about photographs posted by Mema Latu on his Facebook page, also on 8 November 2021, which showed Mema giving bags of chicken to 19 different people that day. Mr Saulala said that Mema Latu was not part of his campaign team, which comprised only himself and his wife, and that Mema was ‘just a supporter’, who ‘came to a TV program’ and who did not do anything for Mr Saulala or on his instructions.

Tevita Peioneti Tauelangi

128. Tevita Tauelangi is the sixth child of ‘Ahio and his deceased wife. Tevita deposed, relevantly, to the following.
129. His family is related to Mr Saulala. In 2017, at a reunion of the Takai mo Fa’e family, in Pea, his family met Mr Saulala. They have remained in contact and have ‘worked together ever since’. Mr Saulala has ‘helped his father and is very loving’. Last year, Mr Saulala helped Tevita and his family, and their handicapped daughter, when they needed help. Mr Saulala has a handicapped brother and so he understands ‘that struggle’. However, Mr Saulala ‘does not come around close to the election’ but helps his family anytime they need assistance. Whenever Mr Saulala is available, Tevita asks him to visit ‘Ahio because ‘Ahio is always happy to see Mr Saulala. Around the first week of November 2021, when Tevita visited his father, ‘Ahio ‘excitedly explained [to Tevita] that Sangster had given him $20 for food’.
130. Tevita was not required for cross-examination.

Submissions

131. Mr Piukala’s submissions in relation to this claim may be summarised as follows:
     • (a) In his evidence, Mr Saulala admitted that, within three months of the election, he gave $20 to ‘Ahio and a box of chicken to ‘Ahio and others to distribute amongst themselves. Therefore, pursuant to s 21(3), unless Mr Saulala can prove otherwise, those gifts are deemed to have been given for the purpose of influencing the vote.
     • (b) In his Response, Mr Saulala disputed the date and place of his gift of the $20 and he did not address the issue of the chicken.
     • (c) In his evidence, Mr Saulala eventually admitted to giving the box of chicken, although he said it was only given to ‘Ahio.
     • (d) Withholding the full photo and only disclosing the cropped photo (exhibit E) to the Court:
       • (i) “is very suspicious and devious”;
       • (ii) “was clearly done to obfuscate the issues in this claim”;
       • (iii) “speaks a lot to the dishonest character of [Mr Saulala]”; and
       • (iv) “was a daring attempt to hide the whole truth and to mislead the Court.”
     • (e) The complete photo (exhibit P1) fully supported the evidence of ‘Ahio Tauelangi, Asaloni Tamale and Siupeli Tamale.
     • (f) ‘Ahio’s March affidavit was “fraudulently created” by or on behalf of Mr Saulala.
     • (g) Mr Saulala has failed to prove that his intention in giving the money and chicken was innocent.
     • (h) It is possible that Mr Saulala has again committed the crimes of perjury and making a false statement.
132. Mr Edwards submitted, in summary:
     • (a) The particulars in the Petition as to date and place are wrong.
     • (b) The giving of the $20 and box of chicken to ‘Ahio Tauelangi was not for the purpose of inducing ‘Ahio to vote for Mr Saulala. It was given as part of a long-standing family relationship. ‘Ahio was not asked to remember or vote for Mr Saulala.
     • (c) The sum of $20 is insignificant for the purpose of bribing anyone.
     • (d) The box of chicken was a leftover of what was intended for Fe’ofa’aki Tu’i’onetoa which was given to ‘Ahio.
     • (e) The $20 and box of chicken should be treated as part of Mr Saulala’s election expenses.

Consideration

133. There is no issue, on the facts, which were eventually accepted by Mr Saulala, that he gave the money to an identified elector (‘Ahio) and chicken to identified electors (Ahio, ‘Asaloni, Siupeli and Sipiloni Tamale and Samupeni Kiteau), within three months of the election. Therefore, as Mr Piukala submitted, s 21(3) casts the onus on Mr Saulala of proving that the money and chicken were not given for the purpose of influencing the vote. I therefore turn to consider his evidence first.
134. In his Response, Mr Saulala denied giving the money or chicken on 16 November 2021 but admitted giving ‘Ahio the $20 on the 8^th. However, he did not admit or even engage with the allegation that he also gave a box of chicken on that day. In other words, he evaded the issue.
135. In his first affidavit, Mr Saulala expressly denied that the Petition contained any allegation that he had given a box of chicken to ‘Ahio. In fact, paragraph 3 of the Petition alleged that:

“... The respondent explained that he went to give boxes of chicken to the Tokomololo Town police then proceeded to give them [referring earlier to ‘Ahio and others] a box of chicken to distribute amongst themselves...”.

136. When Mr Saulala was asked whether he agreed with the allegations in paragraph 3 of the Petition, he noticeably paused and appeared tentative. He did not in fact answer the question directly but said, for the first time, that he told his driver to give ‘Ahio a box of chicken, that the chicken was put in front of ‘Ahio and that ‘the boys might have got it from the back of his car’. Two observations may be made. Firstly, if the driver Mr Saulala was referring to was Samuela Felemi, who gave evidence in relation to the first claim, he was not called to give evidence about this claim. If it was a different driver, that person was not called to give evidence. Secondly, the full photographs showed the box of chicken not in front of ‘Ahio, who was on the far left of the group photo, but in front of the Tamale brothers, on the right.
137. If the contents of ‘Ahio’s March affidavit were to be believed, then they and ‘Ahio’s evidence during cross-examination contradicted Mr Saulala’s evidence in material respects. For example:
     • (a) Mr Saulala referred to ‘Ahio as ‘family’. The March affidavit referred to the family reunion in 2017 where ‘Ahio and Mr Saulala ‘fellowshipped warmly’. In his via voce evidence, ‘Ahio denied being involved in the reunion or even meeting Mr Saulala during it.
     • (b) Mr Saulala was unable to describe how ‘Ahio was related to him and ‘Ahio was not asked about it.
     • (c) The March affidavit referred to Mr Saulala seeing ‘Ahio on the day and greeting him saying that he was happy to see that ‘Ahio was ‘still strong’ and able to go to his farm. In his evidence, Mr Saulala did not mention that and in fact he described ‘Ahio as ‘looking tired’.
     • (d) The March affidavit referred to ‘Ahio then responding that ‘it was the grace of God’ that he was still alive. Again, Mr Saulala did not mention that in his evidence.
     • (e) According to the March affidavit, Mr Saulala told ‘Ahio ‘I will come to the house with some assistance, but here is $20 to help out’. Mr Saulala did not give that evidence and nor did ‘Ahio in his January affidavit.
     • (f) According to the March affidavit, as Mr Saulala was about to leave, he called to his driver to see if there was anything in the car and the driver said that there was a box of chicken. Mr Saulala then told the boys who were there to get the box of chicken and to take it to help feed ‘Ahio’s family. In his evidence, Mr Saulala eventually testified that he told his driver to give ‘Ahio a box of chicken, that the chicken was put in front of ‘Ahio and that the boys might have got it from the back of his car.
138. The above references to ‘Ahio’s March affidavit, when compared to his January affidavit, which he was prepared to affirm in Court, and his evidence in court, lead me to conclude that it is more than likely that the contents of the March affidavit were either not provided by ‘Ahio or were not an accurate representation of any instructions he did give. While he may have seemed unclear about some other aspects of his evidence, he was adamant that he did not ‘consent’ to the March affidavit. When that likelihood is combined with unresolved questions about how the document came to bear ‘Ahio’s signature alongside the signature and seal of Ms Tonga, as having read the affidavit to ‘Ahio and administered the statutory oath before he signed it, then insofar as that document was filed in court with the appearance of being an affidavit sworn by him, it was, at the very least, irregular, and at worst, a fabrication.
139. Further, in circumstances where Mr Saulala was admittedly involved in the preparation of that affidavit and his counsel, Mr Edwards, did not seek to have ‘Ahio affirm its contents in court (after he had already disavowed it), and in the absence of any other rational explanation from the Saulala camp, it is reasonable to infer that Mr Saulala knew or ought to have known that the March affidavit was not a genuine statement of ‘Ahio’s evidence. That conduct also casts serious doubt over Mr Saulala’s veracity as a witness of truth in relation to this claim.
140. As with the issues surrounding ‘Ahio’s March affidavit, I share Mr Piukala’s concerns in relation to Mr Saulala’s evidence of the cropped photo of he and ‘Ahio. When asked why exhibit E to his supplementary affidavit had been cropped and why the original photos had not been discovered in the proceedings, neither Mr Saulala nor Mr Edwards proffered any, or any satisfactory, explanation. When Mr Piukala put to Mr Saulala that the three Tamale brothers and Samupeni Kiteau were there, as shown in the photograph, Mr Saulala first said that he couldn’t recall them, then he said that he didn’t really know them, before finally agreeing that the four men were there as shown in the full photos.
141. In my view, it is reasonable to infer that Mr Saulala’s statement above about telling his driver to give the chicken to ‘Ahio and the cropped photo showing primarily only he and ‘Ahio, were attempts by Mr Saulala to draw attention away from the fact that he gave the chicken to the four other men as well. Further, it may be inferred that Mr Saulala did so because he knew that if there was evidence that he gave the chicken to all of them, and that the Tamale brothers and Samupeni Kiteau were not his kin, and he had not previously given such gifts to them, he would have difficulty proving that the gift was not a bribe in the relevant sense. By attempting to confine the money and the chicken to only ‘Ahio, who was ‘family’, Mr Saulala hoped to rebut the presumption of bribery by demonstrating that the gifts were part of his normal ‘assistance’ to ‘Ahio and his family.
142. The regular assistance for ‘Ahio as family ‘defence’ was not supported by the evidence and, for the following reasons, must too be rejected.
143. It is relatively easy for a Respondent to aver, in very general terms, that he has been assisting a family member for years and that a gift shortly before an election was just part of that regular assistance. It is also something which may be very difficult for a Petitioner to disprove. Often, the only evidence of the fact will be the mere assertion by the Respondent, albeit under oath. As illustrated above, the extent to which witnesses observe the legal requirement of their oath to tell the truth, the whole truth and nothing but the truth, can sometimes vary, and quite dramatically.
144. Here, Mr Saulala sought to draw the family connection with ‘Ahio from the 2017 reunion. But, as noted, ‘Ahio testified that he did not meet Mr Saulala at the reunion.
145. Further, Mr Saulala’s ‘evidence’ about previous assistance did not descend to any particularity. There was, for instance, no evidence of the nature of any previous assistance, whether it was money, food or some other kind; or how often or with what regularity it had been given; or whether any other assistance had been given within the three months before the election. In his January affidavit, and in court, ‘Ahio said nothing of any previous assistance from Mr Saulala. For the reasons stated above, I have rejected the March affidavit as unreliable. But even if it were an accurate account of ‘Ahio’s evidence, there is in fact no mention in it of any previous assistance from Mr Saulala to ‘Ahio, only that Mr Saulala ‘helps people in need of assistance’ and that Mr Saulala ‘really helped’ ‘Ahio’s son, Tevita and his family.
146. Even though he was not required for cross-examination, and therefore his affidavit evidence was not challenged by Mr Piukala, I view Tevita’s affidavit with some scepticism simply because it is overtly and subjectively supportive of Mr Saulala^[29] with little reference to the actual issue in this case.^[30] But even at face value, Tevita’s only reference to Mr Saulala assisting ‘Ahio prior to the $20 was where he stated “Sangster has helped my fathers” [sic],^[31] which was of little assistance in answering the questions posed above.
147. I also take into account the unchallenged evidence of ‘Ahio and ‘Asaloni Tamale that ‘Ahio tried to return the $20 to Mr Saulala. That, in my view, was clearly inconsistent with Mr Saulala’s evidence of having assisted ‘Ahio and his family ‘from time to time’ and with Tevita’s evidence that they had all ‘worked together’ since the family reunion in 2017.
148. For those reasons, I found, in respect of this claim also, that Mr Saulala was an unimpressive witness and that his evidence on the pivotal issue of the purpose of his gifts was inconsistent, contradicted by other evidence filed on his behalf and unreliable. Therefore, where their evidence conflicted, I preferred the evidence of the witnesses called by Mr Piukala over that of Mr Saulala and his.
149. Further, I am satisfied, on the balance of probabilities, that in respect of this claim, Mr Saulala engaged in conduct which was designed, or had the tendency, to mislead the Court, thereby further undermining his reliability as a witness of truth.
150. I do not regard any differences in the evidence as to the date or precise location to be of any great significance. Assuming the date stamp on Mr Saulala’s Facebook post showing that the gifts were given on 8 November 2021 was accurate, I am satisfied that that was probably the day in question. Even though evidence as to secondary or surrounding circumstances such as time and place may often be relevant to reliability, s 35 requires the Court to be guided by the substantial merits and justice of the case. That, in my view, requires the Court’s focus to be directed to the transaction or conduct sought to be impugned. Where, as here, there is no debate that Mr Saulala gave the money and chicken, the focus can be honed on the real issue which is whether he has demonstrated that he gave them for an innocent purpose.
151. To that point then, I am satisfied that the following facts have been firmly established, namely, that on or about 8 November 2021:
     • (a) Mr Saulala gave chicken to Fe’ofa’aki Tu’i’onetoa and the Community Police at Tokomololo;
     • (b) afterwards, he stopped at the Tamale residence, where ‘Ahio, the three Tamale brothers and Samupeni Kiteau were talking;
     • (c) ‘Ahio did not invite Mr Saulala to visit him there;
     • (d) neither ‘Ahio or the other men asked Mr Saulala for any money or other gifts;
     • (e) Mr Saulala gave ‘Ahio $20;
     • (f) ‘Ahio tried to return the $20 to Mr Saulala;
     • (g) Mr Saulala also gave ‘Ahio and the other four men a box of chicken to be distributed amongst them;
     • (h) ‘Ahio did not take any of the chicken;
     • (i) the Tamale brothers took the chicken;
     • (j) there was no specific evidence of Mr Saulala having given ‘Ahio any similar gifts before that day;
     • (k) there was no evidence and no suggestion that the Tamale family or Samupeni Kiteau are related to Mr Saulala; and
     • (l) Mr Saulala had never directly given the Tamale family any similar gifts before that day.
152. The last point introduces Mema Latu into this analysis. It will be recalled that ‘Asaloni Tamale gave evidence that in the week before the above, Mema gave ‘Asaloni bags of chicken and said that they were from Mr Saulala.
153. In his affidavit filed in the proceeding on behalf of Mr Saulala, Mema Latu only gave evidence in relation to the fourth claim. During his cross-examination, Mr Piukala asked Mema about his relationship with Mr Saulala. Mema said that he first became aware of Mr Saulala’s campaign through Mr Saulala’s television programs, which he liked. He called Mr Saulala and asked if he could help him. He described himself affectively as a ‘spokesman’ for Mr Saulala during his campaign.
154. It will also be recalled that during his cross-examination in relation to this claim, Mr Saulala sought to distance himself from Mema by describing him as ‘not part of his campaign team’, that Mema was ‘just a supporter’, and that Mr Saulala ‘did not instruct Mema to do anything’ during or for his campaign.
155. Mr Piukala then took the opportunity to ask Mema about a series of 14 photographs (which had been discovered in the proceeding by Mr Piukala and were included in the documents for trial) from his Facebook account showing him giving bags of chicken to 19 different people, all on 8 November 2021. Above those photographs was Mema’s message, in which he stated (English translation):

“People of Tokomololo, hope you had a good Sunday, sabbath during this very difficult time. Thanking you all sisters, mothers, brothers. Glad to know you are all healthy. All thanks to love of God. Also thanks to Sangster Saulala for continuing to love the elderly people and the widows. Love is given back with love. You are entitled to vote for whoever you want for someone responsible to build up the way we live, our community, our country. Much love. Inbox if anything very much needed. It is by grace. Representative No. 3.”

156. Mema denied that the gifts of chicken came from Mr Saulala. He said that he had provided them through the assistance of his family overseas, and that he had been distributing similar assistance ‘for years’, especially around Easter, Christmas and New Year. He did not provide any independent evidence to support his assertion such as shipping documents, or receipts for overseas funds transfers or any written communications with his family about the chicken. It was also unclear how distributing the chicken in or about the first week of November, and less than two weeks before the election, could be regarded as being ‘around Christmas’ which was then more than six weeks away. Mr Saulala made a similar generalised assertion about cash he gave out during his campaign when he said he ‘had no job’, as having come from family support overseas.
157. Mema said that the purpose of the photos was to show his family overseas that he was thanking them for their love. He explained the reference in his post to Mr Saulala as being an expression of ‘his responsibility to show thanks for someone who showed love’ to the elderly and widows, which was something in which he also believed. He denied that his distribution of chicken and his post were intended to influence people to vote for Mr Saulala. He pointed to the statement in his post that people were free to vote for whomever they wished, by which, he explained, he was trying to say that he was not distributing gifts for people to vote for Mr Saulala. He also said that he did not say anything to the recipients of the chicken about Mr Saulala.
158. In this context, Siofilisi ‘Akau deposed to being one of the persons in the photos with Mema receiving a bag of chicken. He also deposed (although I suspect it was part of Mr Piukala’s investigations) that the photos had since been removed from Mema’s Facebook account. The photo, he said, was taken in the week before the election. The chicken, he said, was a ‘gift from Sangster Saulala’, and that once Mema mentioned Mr Saulala’s name, he knew the purpose of the chicken was to get him to vote for Mr Saulala. He had not received any gifts from Mr Saulala before that day.
159. Mema denied expecting any benefits out of his work for Mr Saulala or in his distribution of assistance to the needy, and that his motives for doing so were ‘purely spiritual’. However, when asked about his current employment, Mema freely stated that after the election, in January 2022, Mr Saulala ‘got him a job’ in the district office for Tongatapu 7. In his evidence, Mr Saulala admitted he had done so.
160. Like Mema, Fe’ofa’aki Tu’i’onetoa was a witness called by Mr Saulala, albeit in relation to a different claim (discussed further below). During his evidence in relation to this claim, Mr Saulala referred to Fe’ofa’aki as being a person who asked him for chicken, and that when, on 8 November 2021, Mr Saulala took two boxes to him, Fe’ofa’aki told him that one was enough and that he should give the other to someone else. On one version of Mr Saulala’s account, that other box was given to ‘Ahio and the four other men, referred to above, on 8 November 2021.
161. Further during his cross-examination, Fe’ofa’aki explained his relationship with Mr Saulala. Suffice to say, insofar as it is relevant to this claim, Fe’ofa’aki was a self-described poor man who is dedicated, through his faith, to helping those in need with anything he has. He described Mr Saulala as having a similar ‘mission’ and that Mr Saulala often gave Fe’ofa’aki assistance for himself and his family (as per the chicken referred to above) as well as bags of goods which Fe’ofa’aki gave to the needy as part of his own charitable ‘program’. Fe’ofa’aki said that Mr Saulala started helping with his program about two months before the election.
162. The Facebook posts and photos referred to in evidence included a number from Fe’ofa’aki’s page. They included photos of him and Mr Saulala with others taken about a month before the election. Fe’ofa’aki said Mr Saulala was with him then because he “needed Mr Saulala to come in person to see what he saw and felt about the people and how they were living”. In a post on 6 November 2021, which was accompanied by numerous photos of people with bags of food and groceries, and some of which featured Fe’ofa’aki and Mr Saulala, Fe’ofa’aki wrote:

“If you take care of your community you are doing God’s work. [Smiley faces] Thanks from some families when we gifted them a bag of meat for their Sunday meals. I would like to thank Sangster Saulala for loving our community.”

163. Fe’ofa’aki confirmed that the food and groceries depicted in the photos came from Mr Saulala.
164. There was also another Facebook post and series of photos from Fe’ofa’aki’s page. Although they were not referred to directly during the trial, it was among the bundle included by Mr Piukala for trial, to which Mr Edwards did not object. As, for reasons which will be explained shortly, those documents were relevant to the relationship between Mr Saulala and Mema Latu, in accordance with ss 31(4) and 35 of the Act, I have had regard to them.
165. Fe’ofa’aki shared a post by Mr Saulala dated 29 November 2021. The photos were of Mr Saulala, his wife and Mema. Mr Saulala is seen shaking hands with Mema and holding or presenting what appeared to be some sort of certificate or award. In the text of his post, Mr Saulala praised the Lord and then thanked Mema for representing him during a recount of the vote.
166. Mr Piukala did not seek to rely on the evidence of Mema Latu and Fe’ofa’aki Tu’i’onetoa as any additional claims of bribery against Mr Saulala for having indirectly provided the food and groceries. However, I consider them to be relevant to the matters raised by the Petition and especially this claim.
167. After carefully reviewing and considering all the above evidence in relation to this claim, and the applicable legal principles and authorities referred to in the Law section above, I am satisfied, and to a high degree of likelihood, that the evidence supports the following inferences:
     • (a) Mema Latu was, at all material times, one of Mr Saulala’s agents in his election campaign.
     • (b) The giving by Mr Saulala, Mema and Fe’ofa’aki, of similar gifts, on or about 8 November 2021, was no coincidence,
     • (c) The gifts came directly or indirectly from Mr Saulala.
     • (d) The ubiquitous photographs of, and posts about, Mr Saulala, praising his largesse, were intended to publicise and promote him in social media, at a time when it was public knowledge that he was running for election in the Tongatapu 7 constituency.
     • (e) That publicity was intended and/or was likely to gain Mr Saulala the admiration and gratitude of not only the electors who received the gifts but also others who viewed them through social media.
     • (f) The generation of that admiration and gratitude was intended and/or was likely to induce those electors to vote for Mr Saulala at the election.^[32]
     • (g) The gifts were not confined to only persons in need (e.g. there was no evidence that the Tokomololo Community Police, ‘Ahio or the Tamale family were persons in need).
     • (h) It follows that, if it was not the sole or dominant purpose, at the very least, a significant purpose in Mr Saulala giving the gifts was to influence the vote.
     • (i) Mr Saulala’s modus operandi for his election campaign, by enlisting supporters directly such as Mema Latu, and indirectly such as Fe’ofa’aki Tu’i’onetoa, to distribute gifts of chicken and other groceries to electors, and them thanking him publicly through social media, was a thinly veiled (and rather sophomoric) attempt to disguise as charitable works, what was in truth, electioneering.
     • (j) Further, statements in those posts such as by Mema Latu, on the back of praising Mr Saulala, that people were nonetheless entitled to vote for whomever they wished, was a cynical attempt at sanitising the gifts in circumstances where Mr Saulala and Mema well knew, or ought reasonably to have known, that by trying to portray Mr Saulala as not giving the gifts for votes, the recipients who were genuinely in need were likely to have nothing with which to reciprocate Mr Saulala’s seeming generosity, over than their vote. It was also highly likely that those recipients and others viewing the posts would be induced to believe that if Mr Saulala was voted in, they could continue to expect further gifts from him in the future.
168. While, at any other time, Mr Saulala could legitimately expect to receive praise for any genuine charitable works, as Paulsen LCJ stated in Latu v Lavulavu:^[33]

“...this was no ordinary time and his were not common acts of generosity. It was an election time where what passes for charity is often really electioneering ‘following in the steps of charity, wearing the dress of charity and mimicking her gait’.”

169. In circumstances where Mr Saulala did not seek to rebut the presumption of bribery against him on this claim by characterising the gifts to ‘Ahio, the Tamale brothers and Samupeni Kiteau as part of any usual charitable works, it is even more likely that they were, in fact, part of Mr Saulala’s electioneering.
170. I conclude the analysis of this claim by addressing the residue of Mr Edwards’ submissions.
171. The submission that the $20 to ‘Ahio was ‘insignificant for the purpose of bribing anyone’ is a very relative proposition. What a person say in Mr Edwards’ position might consider to be an insignificant amount of money may be quite significant to a 78-year-old widower who is still working his farm: cf Haomae v Bartlett [1988-1989] SILR 35. It will be recalled, that in his affidavit (about which I have expressed reservations), Tevita Tauelangi deposed that ‘Ahio was quite excited about the $20 (even though ‘Ahio himself deposed to having tried to return it to Mr Saulala).
172. To measure bribery in elections by the subjective value of a gift to each individual recipient, and whether it was sufficient to actually influence the recipient’s vote, would be to open up electoral corruption to some sort of free economy or market where votes could be bought by the highest bidder and only those candidates who paid enough could be convicted. Apart from the obvious absurdity of such an approach, the submission is contrary to authority. As noted in the Law section above, in determining whether bribery has occurred:
     • (a) it is not necessary to prove that the money or valuable gift did in fact produce any effect on the election;^[34] and
     • (b) the Court will not be concerned to weigh the relative importance of the conduct or allow any excuse. ^[35]
173. Mr Edwards’ final submission was that the $20 and box of chicken should be treated as part of Mr Saulala’s election expenses. It is not clear whether that submission, if accepted, was intended to provide a defence to this claim of bribery, but if it was, for the reasons which follow, it too must be rejected:
     • (a) Section 24(1) of the Act limits the amount any candidate can spend on an election campaign to $20,000.
     • (b) Subsection (2) deems donations and entertainment expenses within six months of an election and costs of transporting people to a polling station to be spending on an election campaign unless they are bribes contrary to s 21. Therefore, if the subject money and gifts here were to be considered, say, as donations, then unless they were bribes, they would be deemed to be part of Mr Saulala’s capped election expenses. However, in that event, subsection (4) required Mr Saulala to include them in his signed statement of his election expenses. There was no evidence here that he did.
     • (c) Further, subsection (3) then provides:

(3) For the purposes of this section any sum expended by a candidate for his personal expenses, or those relating to his 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; shall be disregarded.

(d) As explained recently in Sika v Fasi [2022] TOSC 17:

“[135] ... As the opening words of ss (3) – ‘For the purposes of this section’ – make clear, the primary purpose of [s 24] 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.
[136] 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 or 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 ... and, secondly, that it was given for the purpose of influencing their vote.”

(e) There was no evidence here that ‘Ahio (and certainly not the other men) was, vis-à-vis Mr Saulala, any of the relations specified in subsection (3). Mr Saulala did not claim the gifts to be expenses for charitable purposes. Accordingly, subsection (3) does not apply.

174. For all the above reasons, I find that the second claim of bribery against Mr Saulala has been proved.

THIRD CLAIM - groceries

Evidence

175. The only evidence adduced by Mr Piukala on this claim was from ‘Ahio Tauelangi. In his January 2022 affidavit, ‘Ahio deposed^[36] that at around 7 p.m. on 10 November 2021, his grandchildren ‘alarmed him’ that Mr Saulala’s wife was visiting with plastic bags of groceries.

Kilisitina Saulala

176. Kilistina Saulala deposed as follows.
177. It is common in their home to donate to and assist organisations for the care of the elderly and those in need, as well as distributing gifts to children in hospital at Christmas and food for workers. Their assistance is not limited to Tofoa but also other villages and districts. During the lockdown in November 2021, her husband told her that Semisi Vea called to ask for people to help him distribute chicken and other shopping from the Mo’ua pe ke fai ha ‘Ofa group. The objective of that group was to help the elderly, widows and others that were in dire need of assistance during the lockdown. Semisi Vea distributed in Tofoa and told her that she could take any leftover groceries to family and any other people who needed assistance. Her husband told her to take assistance to her family member in Pea, Rev. Viliami Fa, a retired minister of the free Wesleyan church. He also reminded her to take shopping to his family member, ‘Ahio Tauelangi, his relation from the Takai and Fa’e kin. Mr Saulala also told her to go with Fe’ofa’aki Tui’onetoa because he would know other homes in Pea in need of assistance. When she gave the donations to those in need, some of them cried and were very happy for being remembered. When she reached ‘Ahio’s residence, he was happy and thanked her for remembering him and asked after her husband and conveyed his love to him.
178. During cross-examination, Kilistina said she was not sure whether she was first contacted by Semisi Vea or her husband. When distributing the shopping, she informed recipients that she was from the Mo’ua pe ke fai ha ‘Ofa group. She had participated in similar distributions in previous years such as to the Alonga Centre, the hospital, relatives from other villages, Church Ministers, the elderly and people in need.
179. She was not sure of the exact date of the distribution or whether it was before or during the lockdown. She recalled it being before the full lockdown when there was a trial period allowing educational programs to continue. Nonetheless, the reason for the distribution was to assist the elderly and those in need during that time.
180. She was also asked about Fe’ofa’aki Tui’onetoa and whether he was part of her husband’s election campaign team. Kilistona remembered that Fe’ofa‘aki was on one or two of her husband’s 12 TV programs, which she hosted during his campaign. Insofar as there was a campaign team, she said it was only her husband who went into the villages to talk with people.

Semisi Tau’ataina Vea

181. Semisi Vea is the Town Officer of Tofoa. He deposed to the following.
182. He has been a member of the Tonga kava club in Tofoa for many years. The club was involved in assisting young students who could not afford tuition fees and other people experiencing hardship. He was also a member of the Fotu E Longo Club. In 2017, he changed the name of that Club to Mo’ua pe ke fai ha ‘Ofa (“the group”) so that others could join besides just members of the Tonga kava club. In 2017, a number of church ministers supported and donated to the work of the group. During 2012 and 2014, when he was Minister of Agriculture, Mr Saulala “really helped” the people of Tofoa and the Tongatapu 7 electorate.
183. In November 2021, the group distributed some assistance to those in need in Tofoa, Pea and Ha’ateiho. Semisi asked Mr Saulala to send some rugby boys from Lavengamalie to assist with the distribution. However, Mr Saulala informed him that most of the boys had travelled overseas for the seasonal working program. Semisi then asked Kilistina to help with distributing the assistance in Pea and Ha’ateiho because she knew the people in need in those villages well. The assistance distributed by Kilistina was not from her husband but was from the Mo’ua pe ke fai ha ‘Ofa group. The group is not registered as a charity but is a non-profit group which has provided assistance for many years. It did not need to be registered to be able to help those in need.
184. During cross-examination, Semisi gave the following further evidence.
185. In its current form, as the Mo’ua pe ke fai ha ‘Ofa, the group or club members include himself, church ministers, people who drink kava and anyone who wants to lend a hand. Mr Saulala is also a member. The purpose of the club is to help those in need. It does not have a formal committee or organisational structure. Its members come from different religions and kava clubs and it operates as an informal group. It does not collect money. When there is a need, the members contribute their own money. The scope of their work extends to persons who might travel to Tongatapu from the outer islands who need help. In Tofoa, all the members are acquainted, so if there is a family in need, they all know about it.
186. The November 2021 distribution was not the group’s first. They had previously distributed from their own crops to those in need. Usually, the group would decide what they were going to do during kava sessions, where everyone in the group has a chance to suggest where they distribute, including Mr Saulala. Around the time of the lockdown, food was needed. Semisi made the decision to do the November 2021 distribution, just before lockdown. He did not record the exact date of the distribution and could not recall whether it was 10 November 2021, but he did recall that it took about two or three days of that week to distribute the goods. Some members of the group had donated some of the goods while others donated money. As it was approaching Christmas time, some members had boxes of goods sent from overseas. When Mr Saulala was previously a Minister, he provided assistance to the group. However, for the November 2021 distribution, Mr Saulala did not donate anything.
187. Semisi confirmed that Kilistina Saulala had helped the group with distributions before November 2021. Kilistina knew of his conversation with Mr Saulala. She asked if she could help with the distribution. When he was challenged on that last answer compared to his affidavit,^[37] where he stated that Kilistina came because he asked her to, Semisi said that Kilistina was there and they talked about the distribution. He described that passage of his affidavit and his oral evidence as “kind of the same”.
188. Semisi denied being “part of Mr Saulala’s campaign” and said he was “part of everyone’s campaign”.

Mr Saulala

189. In his first affidavit,^[38] Mr Saulala denied that the groceries his wife gave to ‘Ahio were from him or on his behalf. He deposed that his wife was one of the distributors of the groceries on the date in question on behalf of Semisi Vea’s organisation and that the groceries fall into the same category as the assistance he and his wife had been giving ‘Ahio over the years.
190. During cross-examination, Mr Saulala confirmed that he is a member of the Mo’ua pe ke fai ha ‘Ofa club and that it has “dozens of members”. He also confirmed that in the three months prior to the election, he did not contribute any goods or money to the club. On previous occasions, Semisi Vea had asked Mr Saulala for assistance with distributions, but not in November 2021. Mr Saulala denied using the club for his campaign. He did not know how the groceries for the November 2021 distribution were funded. He denied that Semisi Vea was involved in his campaign and said that Semisi “helped all the candidates”.

Fe’ofa’aki ‘A Kakau Tu’i’onetoa

191. Fe’ofa’aki Tu’i’onetoa described himself as a farmer who also mowed lawns and did painting work. In relation to this claim, he gave the following evidence.
192. Since 2005, Fe’ofa’aki has been working to help the villagers of Pea and Tokomololo by mowing the lawns of widows, the elderly and around the cemeteries there. He also gives away food crops from his farm and shopping to the elderly and widows. His altruism is part of a ministry within the church to which he belongs. Fe’ofa’aki is not related to Mr Saulala, but when he heard of Mr Saulala's mission of helping the less fortunate, widows, elderly and physically challenged, he wanted to support Mr Saulala because he wanted someone like that to represent him in Parliament as they shared the same mission. He often supported Mr Saulala's mission and he often invited Mr Saulala to take part in his ministry work.
193. Fe’ofa’aki also often posted on Facebook around this time about his pastoral care work and to promote Mr Saulala because he believed he was the best candidate for their constituency. He did not ask Mr Saulala’s permission to include him in his posts, but he wanted people to know of Mr Saulala’s ‘kind and helpful spirit’.
194. Fe’ofa’aki described himself as ‘not rich, but actually poor’. However, whatever he has, he shares with the needy. Conversely, when he is in need, he asks others for help. He recalled a time when the Mo’ua pe ke fai ha ‘Ofa group from Tofoa contacted him to help give to the widows and elderly when Tonga was in lockdown. He was happy to help. He went with Mr Saulala’s wife to distribute that assistance in Pea.
195. On Monday, 8 November 2021, Fe’ofa’aki was "a bit short supply" and so he rang Mr Saulala and asked him to buy his family a box of chicken. Mr Saulala came with two boxes, but Fe’ofa’aki told him that was one was enough and that he should give the other box to someone else in need.
196. During cross-examination, Fe’ofa’aki gave the following further evidence, in summary:
     • (a) Mr Saulala or his wife gave him plastic bags of goods which he distributed to the needy.
     • (b) There were other times when he asked Mr Saulala for help for him personally and his family.
     • (c) The Facebook photos of him with Mr Saulala and others were taken about a month before the election and because he “needed Mr Saulala to come in person to see what he saw and felt about the people and how they were living”.
     • (d) In a post on 6 November 2021, which was accompanied by numerous photos of people with bags of groceries, and some of which featured Fe’ofa’aki and Mr Saulala, Fe’ofa’aki wrote:

“If you take care of your community you are doing God’s work. [Smiley faces] Thanks from some families when we gifted them a bag of meat for their Sunday meals. I would like to thank Sangster Saulala for loving our community.”

Those groceries were from Mr Saulala.

(e) There were others besides Mr Saulala who helped his program since 2005.
(f) Mr Saulala started helping with his program about two months before the election.
(g) He denied that the distributions were part of Mr Saulala’s campaign.
(h) In relation to the November 2021 distribution by the Mo’ua pe ke fai ha ‘Ofa group, it was actually Mr Saulala who contacted him and asked him to help.
(i) When Kilistina saw her family members on a list of people in the area who were suffering, she wanted to help.

Viliami Uasike Latu

197. At the subject election, Viliami Latu was elected as the representative of Vava’u 16. He deposed to the following.
198. He knows Semisi Vea well as the Town Officer of Tofoa and described him as “hardworking and trustworthy” and that they are “very close friends”.
199. Mr Latu is also one of the founding members of the Fotu E Longo Club, a Tongan Kava Club which was established by the youth of Tofoa in 1994 with the aim of helping the youth and people of the village and its work extended to other friends and villages through mutual working relationships. The club offered assistance in the form of scholarships for those who cannot afford to pay school fees, goods and money for the disabled and poor and other financial assistance for sports, including the Tofoa rugby team. The club conducted fundraising for those visiting from the outer islands and to assist church activities as well as providing assistance to individuals and families in need.
200. Semisi Vea has been the secretary of the club since 1999 and has been key to its survival. In 2017, Semisi established the Mo’ua pe ke fai ha ‘Ofa Club with the same purpose as the Fotu E Longo Kava Club. He combined all the Tongan kava clubs of the village including the members of the Fotu E Longo Kava Club. Even though the Mo’ua pe ke fai ha ‘Ofa Club is not registered, like most Tongan kava clubs, it still carries out charitable works and community development activities. Semisi was elected Town Officer of Tofoa in 2019 which empowered him to conduct more charitable works through the Mo’ua pe ke fai ha ‘Ofa Club.

Submissions

201. Mr Piukala submitted, in summary:
     • (a) Mr Saulala had admitted that his wife gave valuable gifts in the form of bags of groceries and shopping to people in Pea, including ‘Ahio Tauelangi’s family, within three months of the election.
     • (b) The question of whether Mrs Saulala gave valuable gifts on behalf of her husband “has been answered” by LCJ Paulsen in Latu v Lavulavu at [87] (as noted in the Law section above) where his Honour observed that:

“... In an election context ... [p]ersonal intimacy is evidence of agency. In the case of a candidate's wife, where she concerns herself in her husband's election she is ipso facto regarded as his agent and is taken to have acted on his behalf ....”

(c) Therefore, it is already established that Mr Saulala’s wife was acting on his behalf which therefore only leaves the burden of proof on Mr Saulala to prove that this action on his behalf was not, on the balance of probabilities, done to influence the voters of TT7.
(d) In his Response filed on 5 January 2022, Mr Saulala stated^[39] that his wife was asked by Semisi Vea during the Covid-19 lockdown in November 2021 to assist in the distribution of food from charitable organizations. There was no mention of any name of the organization. It was only in response to an order for further particulars that Mr Saulala disclosed the name of the charitable organisation as Mo’ua pe ke fai ha ‘Ofa. In his first affidavit, Mr Saulala did not use the term ‘charitable organization’ but instead referred to it as “Semisi Vea’s organization”. In her affidavit, Kilistina Saulala referred to the charity organization as “Mo’ua pe ke fai ha ‘Ofa group”. In his opening submissions, Mr Saulala referred to the charity organization as “the Mo’ua pe ke fai ha ‘Ofa charity”. In Mr Edwards’ closing submissions, the ‘charitable organization’ was referred to as a “group” again then later referred to as a “charitable organization”.
(e) The different references by Mr Saulala to the charitable organisation shows inconsistencies and questionable differences because Semisi Vea’s organization, the Mo’ua pe ke fai ha ‘Ofa group and the Mo’ua pe ke fai ha ‘Ofa charity are not the same thing and cannot be used interchangeably.
(f) Further, in his closing submissions, Mr Saulala contradicted his own claim that the Mo’ua pe ke fai ha ‘Ofa group was a charitable organization when he admitted that it is not registered as a charitable organization. The group is merely a collection of people under that name who engage in activities together including distributing food. But that is not the same as a charitable organization, which according to law, “must be registered and established”. Therefore, the “defence of charity” cannot be used.
(g) The evidence of Fe’ofa’aki Tuionetoa made it clear that it was Mr Saulala who actually contacted him as the Mo’ua pe ke ‘Ofa group, all the shopping was provided by Mr Saulala and that his only contact when working with the group was with Mr Saulala and his wife
(h) Therefore, the Mo’ua pe ke fai ha ‘Ofa group is a “facade of a platform setting that was only designed by the Respondent with Semisi Vea after receiving notice of the Petition”.
(i) Mr Saulala has failed to prove that his intention in his wife giving the groceries on his behalf was innocent.
(j) Instead, Mr Saulala “tried to hide his true intentions and exposed himself for presenting a false ‘charitable organization’ in Court and providing tainted evidence and influencing the town officer Semisi Vea to intentionally lie under oath”.

202. Mr Edwards submitted, in summary:
     • (a) The groceries were not from Mr Saulala or distributed on his behalf. They were distributed by Semisi Vea of the Mo’ua pe ke fai ha ‘Ofa charitable organization.
     • (b) Even though the Mo’ua pe ke fai ha ‘Ofa group and other kava Tonga clubs which provide assistance to students, church offerings and people in need are not registered as charitable organizations, “they are the lifeline of the Tongan co-operative society in their struggle to survive in an economic environment where people are poor but by giving to others they are supported and helped to survive in that environment”.

Consideration

203. Mr Piukala’s submission, supported by authority, that by dent of marriage, Kilistina Saulala was ipso facto, Mr Saulala’s agent, and is therefore taken to have acted on his behalf when she distributed groceries to ‘Ahio and others, appears, at first blush, to be a ‘knockout blow’.
204. However, the submission overlooks two important matters. Firstly, the statement of principle referred to by Paulsen LCJ in Latu was premised on a wife concerning herself in her husband's election. The only evidence of Kilistina’s involvement in Mr Saulala’s election was that she hosted his TV programs. That and her evidence that only Mr Saulala went to the villages to speak with constituents went unchallenged. There was no evidence that Kilistina’s work distributing the groceries was part of Mr Saulala’s election campaign or that she was doing so on his behalf. Her evidence, which I accept, was that she told recipients of the groceries that they were from the Mo’ua pe ke fai ha ‘Ofa group. Which leads to the second point.
205. Mr Piukala’s submission that the groceries were in fact given by Mr Saulala requires acceptance of the evidence of Fe’ofa’aki Tuionetoa. While he presented as a gentle and earnest man endeavouring to give honest evidence, I found much of Fe’ofa’aki’s evidence about his dealings with Mr Saulala vague and confusing. It was seldom clear whether he was talking about Mr Saulala’s support for his own charitable program or mission; or whether he was talking about his and Mr Saulala’s involvement in the Mo’ua pe ke fai ha ‘Ofa group.
206. As noted above, Mr Piukala expressly did not seek to rely on Fe’ofa’aki’s evidence, during cross-examination, of the other gifts of food to people depicted in the Facebook photos of he and Mr Saulala posted on 6 November 2021 (or of any gifts to Fe’ofa’aki himself such as the box of chicken), as the basis for an additional unpleaded claim of bribery. Therefore, the only clear evidence I discerned from Fe’ofa’aki, which was relevant to this claim, was that he accompanied Kilistina during the November 2021 distribution of groceries on behalf of the Mo’ua pe ke fai ha ‘Ofa group.
207. By contrast, I found the evidence of Semisi Vea and Viliami Latu clear, consistent and credible. Neither were seriously challenged in cross-examination.
208. On that basis, I am satisfied, on the balance of probabilities, that the groceries came from, that is, were provided by, the Mo’ua pe ke fai ha ‘Ofa group and not Mr Saulala, or his wife, on his behalf. Further, the distribution by the group had nothing to do with Mr Saulala’s election campaign but was solely concerned with assisting those in need with food at a time when the country had gone, or was about to go into, a hard lockdown due to Covid-19.
209. Mr Piukala’s secondary attack was on the legitimacy of the Mo’ua pe ke fai ha ‘Ofa group as a charitable organization. His submissions were based on two propositions.
210. The first was that because Mr Saulala and his witnesses referred to the Mo’ua pe ke fai ha ‘Ofa group by different terms or names, such ‘inconsistencies and questionable differences’ supported a conclusion that the group was effectively a sham or ‘façade’ used by Mr Saulala to further his election purposes.
211. The submission is without merit.
212. Firstly, the evidence of Mr Saulala and other witnesses referring to the group by different (and in some cases, only very slightly different) names was inconsequential and could not be regarded as determinative of the existence of the group or of its charitable endeavours.
213. Secondly, the uncontradicted evidence of Semisi Vea and Viliami Latu painted a pellucid picture of the long history of the group having been formed by an amalgamation of, or association with, other clubs, the earliest of which had been operating since 1994, and was renamed in 2017 as the Mo’ua pe ke fai ha ‘Ofa group. I accept that evidence. I also accept the again unchallenged evidence that the continuous objects of the group through its various manifestations, has been the charitable support of persons in need.
214. The second involved a misapprehension as to any legal requirements for the existence of a charitable organization. Mr Piukala’s submission, that to be regarded as a charitable organization, the Mo’ua pe ke fai ha ‘Ofa group was required by law to be ‘registered’, is incorrect. While his opening submissions contained references to the Charitable Trusts Act 1993, the submission was not developed in his closing submissions beyond the mere assertion cited above.
215. In the absence of any express provisions stating its objects, the preamble to an Act may be referred to for assistance in explaining its scope and object: Interpretation Act, s 8(2). The preamble to the Charitable Trusts Act describes it as “an Act to provide for the incorporation and registration of religious, educational and other charitable trusts and societies”. That alone should be sufficient to answer this issue. But, in the event the answer is not already obvious, I will continue with an exposition of some relevant provisions of that Act.
216. Section 2 defines “Charitable purpose” an including every charitable purpose, whether it relates to relief of poverty, the advancement of education or religion, or any matter beneficial to the community. Section 3(1) provides that the trustees of any trust which is exclusively or principally for charitable purposes may apply to the Registrar in accordance with the Act for the incorporation of the trust as a Board under the Act. Section 4(1) provides that any society which exists exclusively or principally for charitable purposes may apply to the Registrar in accordance with the Act for the incorporation of the society as a Board under the Act.
217. In his opening submissions [28], Mr Piukala described section 7 as stating that:

“... an organisation may be deemed a charitable organisation if the Registrar is satisfied that the organisation is principally charitable and that the procedural requirements have been observed”.

218. In fact, s 7(1) provides that the Registrar shall, on being satisfied that the purposes of the trust or society (as the case may be) are exclusively or principally charitable, ...(a) enter the name of the Board in the register kept by him under this Act, together with particulars as to whether a trust or a society constitutes the Board, the place of its registered office, and such other particulars as he thinks fit; and (b) issue under his seal a certificate that the Board has been incorporated under the Act on the date mentioned in the certificate.
219. Section 9 provides that upon incorporation, every Board shall have perpetual succession and a common seal and ... shall be capable of holding real and personal property of whatsoever nature and whether situated in Tonga or elsewhere, and of suing and being sued, and of doing and suffering all such acts and things as bodies corporate may lawfully do and suffer.
220. The balance of the Act reflects what is indicated in the preamble by providing for the various rights and obligations of any incorporated body including its cessation or demise by way of winding up and distribution of any assets.
221. As has hopefully now been demonstrated, there is no provision in the Charitable Trusts Act which requires any organisation which operates for charitable purposes to be ‘registered’ under that Act in order to be recognised as a charitable organisation. The primary purpose of the Act is to provide for the incorporation of charitable trusts and societies so that they may, among other things, enjoy the benefits of perpetual succession and the status of a recognised legal entity separate to its members.
222. The only other significant reference to charitable purposes in the current Tongan legislation is s 18 of the Income Tax Act which provides that the income (other than business income) of a non-profit organisation shall be exempt from the imposition of tax. A “non-profit organisation” is defined as an institution, body, or trust of a public character that the Minister has certified as conducting activities exclusively for charitable purposes. “Charitable purposes” are defined there as including the relief of poverty, advancement of education or religion, or any other purpose beneficial to the community. In that context, certification by the Minister is required if a charitable non-profit organisation wishes to be tax exempt.
223. Mr Piukala’s argument (in his opening remarks) then segued to s 24 of the Electoral Act. As noted above in relation to the second claim:
     • (a) ss (1) prohibits a candidate from spending more than $20,000 on an election campaign;
     • (b) ss (2) deems certain payments to be spending on an election campaign, unless they are bribes contrary to s 21; and
     • (c) ss (3) provides that for the purposes of s 24, sums expended by a candidate for his personal expenses or those relating to persons related to him as specified therein or in relation to a church or for a charitable purpose, shall be disregarded.
224. That, according to Mr Piukala, provides a ‘defence of charity’, but only if the charitable purpose is a registered charitable organisation under the Charitable Trusts Act.
225. In fact, Mr Edwards did not, in his closing submissions, claim any ‘defence of charity’. That defence, if it was one, may have been assumed but was never explained by Mr Piukala in his closing submissions.
226. But, in any event, the first proposition propounded by Mr Piukala is incorrect. Subsection 24(3) does not provide a ‘defence of charity’ to a charge of bribery under s 21 for the reasons explained in Sika v Fasi, referred to in paragraph 173(d) above. The second proposition is also incorrect for the reasons stated immediately above. There is, in fact, no such thing as a ‘registered charitable organisation’ under the Charitable Trusts Act, only incorporated Boards of charitable trusts or societies.
227. For those reasons, the third claim fails.

FOURTH CLAIM – request for roadworks

Evidence

Vilisoni Tauelangi

228. Vilisoni Tauelangi gave evidence that on 8 November 2021, he drove by the road in front of his house at Pea where he met Mema Latu. Mema told him that the road repair work there was “a project done by Mr Saulala”. Mema explained to him that Mr Saulala had asked the then Prime Minister for help with the roadwork for his campaign. Vilisoni estimated that the works involved more than 10 (10- wheeler) truckloads. Vilisoni was not required for cross-examination.

Tevita Faletau

229. Tevita Faletau gave evidence of roadworks performed in the first half of November 2021 at the area of Pea up to the border with Tokomololo. He said that Mema Latu, whom he described as Mr Saulala’s “campaign agent in Tokomololo” told him that:
     • (a) the road work was done by the Government, including the Prime Minister and the leading hand of the Ministry’s roads department, as “a result of negotiations” with Mr Saulala and Mema;
     • (b) it had been agreed that once the road at Tofoa was completed, works would proceed at Pea and Tokomololo; and
     • (c) the road work was done by the Government “to render support” for Mr Saulala’s election campaign.
230. Tevita said that he supported Mr Saulala in the elections because of what Mema had told him.
231. During cross-examination, Tevita said he could not recall whether Mema told him that Mr Saulala had asked the Prime Minister to bring the roadworks forward.

Mema Latu

232. Further to the references in the preceding claim in relation to Mema Latu and his evidence, in his affidavit filed in respect of this claim, Mema deposed to the following.
233. He is a former Chief Police Inspector. The roadworks in question were already on the repair program of the Ministry of Infrastructure although the timing of the repairs was uncertain. On 8 November 2021, Vilisoni Tauelangi came to his house. They talked about the road repair project and Mema told Vilisoni that Mr Saulala had asked the Prime Minister to bring the work forward which the Government agreed to do. His affidavit did not address the evidence of Tevita Faletau.
234. During his cross-examination, Mema explained that it was he who asked Mr Saulala to ask the Prime Minister to bring the roadworks forward because he knew the works had been scheduled from the then Prime Minister’s news programs, but had been delayed. He also considered that, as Deputy Chairman of the Tokomololo Community Council, a position he has held since 2016 when he retired, it was his responsibility to make the request. He informed his council that he would ask Mr Saulala to speak to the Prime Minister. However, before he approached Mr Saulala, Mema asked ‘a number of other people’ for funds for the works.
235. Mema denied that the works were done to support Mr Saulala’s campaign.
236. Mema’s evidence in relation to his relationship with Mr Saulala and his explanation for his Facebook posts in relation to the distributions of chicken to people on 8 November 2021, have been recited in the analysis of the second claim at paragraphs 152 to 165 above, and may be taken as having repeated herein in the consideration of this claim.

Mr Saulala

237. In his first affidavit, Mr Saulala confirmed that, as a candidate, he asked the Prime Minister to bring forward the scheduled road works at Tokomololo. The Ministry of Infrastructure carried out the roadworks as part of their maintenance program.
238. Mr Saulala explained that the purpose of his request to the then Prime Minister was because ‘the people’ in the village had asked him for help as the road had been in poor condition for many years. He was also asked to assist during his earlier term as a Member of Parliament between 2010 and 2014. The people did not know how many years they might have to wait, and they needed a better road. He also said that he approached ‘a few different people’ about the works as well as the Prime Minister. The works had been scheduled for earlier that year but the workers ‘skipped’ the area between Pea and Tokolomolo and went onto work in Tongatapu 10. He described the works as ‘not a big job’ involving ‘just a few coral rocks’. However, he estimated the length of road involved as equivalent to the distance from the Tanoa Hotel to the court house, or 200 to 300 metres, although it was more just filling potholes.
239. Mr Saulala denied making the request in order to ‘court the favour of the voters’ in that area. He also denied having any political connection with the former Prime Minister, who was a member of the PTOA party. He said that he did not receive a response to his request and that the works ‘were just done’. He suggested that his request may have been granted because he ‘was respected as a previous Minister’.
240. Mr Piukala put to Mr Saulala that his request amounted to a bribe because Mema Latu had ‘advertised’ that the project ‘had been done by Mr Saulala’. Mr Saulala denied ever instructing Mema to say anything of that kind.
241. Mr Saulala’s evidence in relation to his relationship with Mema Latu is set out in paragraphs 154, 159 and 165 above, and again, may be taken as repeated here for the purposes of considering this claim.

Submissions

242. Mr Piukala’s submissions on this claim may be summarised as follows:
     • (a) The roadworks were brought forward by the Government of the day because of Mr Saulala’s ‘influence on the Prime Minister’.
     • (b) That submission was preceded by the following statement in relation to agency in the context of elections from the Western Samoan decision in Avauli v Atiifale [2021] WSSC 34 at [18]:

“A candidate however innocent would be liable and responsible for any illegal acts done by or under the authority of his agent in the sense that the election will be avoided. It makes no difference whether the candidate did not authorise, did not know, or had not consented to the doing of the illegal act. In fact even if the agent acted illegally in defiance of express instructions to the contrary from the candidate, the election of the candidate will be avoided. This approach is consistent with the spirit of the legislation that elections should be conducted by honest and proper means and untainted by under hand influences.
Further that –
It is settled law that the entrusting to an agent by a candidate of the acts to be done to promote the election of the candidate may either be in express terms or arise from implication. It is not necessary in order to prove agency to show that the person was actually appointed. Recognition and acceptance of service is also sufficient to prove agency.”

The significance of that reference was not revealed in the balance of Mr Piukala’s submissions. I apprehend it was intended to support a submission that Mema Latu acted as Mr Saulala’s agent in relation to this claim. I did not understand Mr Piukala to submit that the former Prime Minister was also Mr Saulala’s agent.

(c) As the roadworks were performed within three months of the election, they are deemed by s 21(3) to have been a bribe.
(d) Although the ‘gift’ of the road works was ‘given to voters of TT7 generally’, so that ‘it can be argued that it was not given to an identifiable voter or was not given by an identifiable candidate’, Mema Latu ‘took active steps to ensure’ that the witnesses he spoke to ‘and others in the town council’ were made aware that the works were ‘only possible’ because Mr Saulala had asked the Prime Minister. Therefore, the possible defence referred to in Pohiva v Fasi, where Martin CJ stated that “a gift cannot operate as a bribe if no one knows about it” was not available to Mr Saulala because Mema Latu made sure that relevant people knew about it.
(e) Even though Mr Saulala did not finance the road works himself and the Government had already committed to them, ‘it is reasonable to assume that in taking credit for its early execution’, they became Mr Saulala’s ‘indirect valuable gift to the voters in TT7’.
(f) Mema Latu was ‘dishonest and willingly lied under oath as to the funding of the distribution of chickens and shopping in Tokomolo. He also denied under oath that he had anything to do with [Mr Saulala’s] election campaign when he openly and publicly promoted [Mr Saulala] during his campaign’.
(g) For those reasons, Mr Saulala failed to prove that his intention was innocent.
(h) Mema Latu may also have committed crimes of perjury and making a false statement in breach of ss 63 and 64 of the Criminal Offences Act.

243. Mr Edwards submitted, in summary, that:
     • (a) If there was a roading program, as in the case here, a candidate can ask for the repair program to be brought forward. Requesting an earlier date for the repairs to be done does not constitute bribery.
     • (b) The road was going to be repaired.
     • (c) The Government had committed itself to carry out the repair work.
     • (d) The repair was asked to be brought forward by constituents.
     • (e) The request for the program to be brought forward was made by the candidate.
     • (f) Mema Latu’s explanations about the road program did not involve any ‘political propaganda or publicity conducted by’ Mr Saulala.
     • (g) The basis of this allegation does not constitute the offence of bribery.

Consideration

244. After considering the above evidence and submissions, I am not satisfied, on the balance of probabilities, that this claim constitutes a bribe for the purposes of s 21(1) of the Act, for the following reasons.
245. There was no evidence that Mr Saulala directly or indirectly gave any money or valuable gift to anyone.
246. The roadworks were not a valuable gift to any elector in Pea or Tokomololo. They were performed as part of the then Government’s statutory responsibilities for the maintenance of its infrastructure. They were then, and they remain, part of the Government’s infrastructure asset base.
247. On the evidence, the only act by Mr Saulala was to ask the former Government to perform the works. Any constituent was entitled to make the same request at any time.
248. If the works had been scheduled for earlier in 2021, but had been ‘skipped’ in favour of works being conducted in Tongatapu 10, then they were not ‘brought forward’ or accelerated ahead of other scheduled works, in November 2021, because they were already in delay.
249. There was no evidence that Mr Saulala had, or exerted, any influence over the former Prime Minister as part of the Ministry of Infrastructure’s decision to perform the works when it did.
250. There was no evidence that the works were ‘only possible’ because Mr Saulala had asked the Prime Minister to bring them forward. They had already been scheduled for some time and well before the election.
251. There was no evidence, either direct, or from which it could be inferred, that the Government performed the works because of Mr Saulala’s request or that they were performed for or on his behalf or to promote his election campaign. Neither the former Prime Minister nor anyone else from or connected with the previous Government were called to explain why the works were performed just before the election in November 2021.
252. Even if the works were a gift from Mr Saulala (which, for the reasons stated above, they were not), they were not given to or for any elector, or to or for any other person on behalf of any elector, as required by s 21(1). The words "any elector" mean some identifiable elector or electors but not voters generally: Latu v Lavulavu, ibid, at [115]; Sika v Fasi [2022] TOSC 17 at [123] to [126]. Moreover, the works were not solely for the benefit of the constituents of Pea and Tokomololo. They were available to, and for the benefit of, any motorist or other road user in Tongatapu who might travel on that road: Latu v Lavulavu, ibid, [116].
253. Although, for the reasons stated in relation to the second claim, I consider it more than likely that Mema Latu was Mr Saulala’s agent for the purposes of his election campaign, for the foregoing reasons, there is no need to consider his evidence in relation to this claim any further. What he told others about the roadworks was not seriously disputed. Nor was it to the point. Mema’s statements about Mr Saulala’s involvement in requesting the works does not alter the above analysis nor, for the reasons stated, does Mema’s talking about Mr Saulala’s request to others somehow convert Mr Saulala’s request into a bribe directed to those persons.
254. As Mr Piukala disavowed any attempt to rely on Mema’s evidence about his chicken distribution on 8 November 2021 as the potential basis for yet another unpleaded claim of bribery on the part of Mr Saulala, it is also unnecessary to consider further Mr Piukala’s allegations against Mema of perjury and making a false statement.
255. I conclude the analysis of this claim with the following observation, for possible future reference.
256. Had it been pleaded, and had there been credible and reliable evidence adduced, that Mr Saulala had colluded with the former Prime Minister to intervene on the Ministry of Infrastructure’s works program in order to benefit Mr Saulala’s election campaign in return, say, for agreeing that if he were elected, Mr Saulala would support the Prime Minister on future votes or some other alleged corrupt arrangement, then arguably such conduct could attract s 33(1) of the Act, which provides:

33 Avoidance of election for general corruption
(1) Where it is reported by the Supreme Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidate thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election, if he has been elected, shall be void and if he has already taken his seat in the Legislative Assembly he shall be unseated by the Assembly.

257. Otherwise, and for the reasons stated, the fourth claim fails.

RESULT

258. As a result of the first and second claims herein having been proved, Mr Saulala is found guilty of bribery at the election, contrary to s 21 of the Act.
259. Accordingly, pursuant to s 32(1) of the Act it is hereby declared that the election of Sione Sangster Saulala, on 18 November 2021, as the representative of the Tongatapu 7 constituency, is void.
260. Having regard to ss 38 and 39 of the Act, and the fact that parts of the evidence and submissions in relation to the third and fourth claims were relevant to the successful first and second claims, it is ordered that, subject to any application for any different order being filed within 14 days of the issuing of this judgment, the Respondent is to pay the Petitioner’s costs of and incidental to the proceedings, if any, to be taxed in default of agreement.
     

NUKU’ALOFA	M. H. Whitten QC
2 May 2022	LORD CHIEF JUSTICE

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^[1] The proceeding was initially case managed by Afeaki ACJ.
^[2] E.g. see Kaufusi v Tukui'aulahi [2021] TOCA 6.
^[3] See Practice Direction No. 1 of 2021.
^[4] Compare Latu v Lavulavu [2016] TOSC 5 at [5] to [7] where Paulsen LCJ allowed an application to amend during trial in the form of withdrawal of an admission. However, Mr Edwards, who acted for the Respondent did not seek an adjournment or to call further evidence.
^[5] Ibid, fn 4.
^[6] Latu v Lavulavu at [27], citing Scott v Martin (1988) 14 NSWLR 663, 670 and Henslow v Fawcett (1835) 3 Ad & El 51, 58.
^[7] 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.
^[8] Latu v Lavulavu at [27], citing Fasi v Pohiva [1990] Tonga LR 79, 81 per Martin CJ.
^[9] From the decision of the Solomon Islands High Court in Ha'apio v Keniasina [2011] SBHC 177.
^[10] Lavulavu v Latu [2015] TOCA 13 at [10].
^[11] Miller v Minister of Pensions [1947] 2 All ER 372, per Denning J.
^[12] At [29].
^[13] Citing Fasi v Pohiva, supra.
^[14] 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.
^[15] Latu v Lavulavu at [31], citing Fusitu'a v Ta'ofi & 'Aho [1996] Tonga LR 102 at 105.
^[16] 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.
^[17] Citing Kingston-upon-Hull, Central Division, Case (1911) 6 O'M & H 372 referred to in Halsbury's (supra) at paragraph 774 fn5.
^[18] Latu v Lavulavu at [28], citing Director of Public Prosecutions v Luft [1976] UKHL 4; [1977] AC 962, 983, Scott v Martin at 672 and Wigmore v Matapo [2005] CKCA 1 at [37]. See also Donne CJ in the High Court of Cook Islands in Re Mitiaro Election Petition [1979] 1 NZLR S1 at s12.
^[19] Latu v Lavulavu, ibid at [87], citing Bay of Islands Election Petition [1915] NZGazLawRp 60; [1915] 34 NZLR 578, Petaia v Pa'u [2007] WSSC 15 January 2007 referred to in Faitua v Vaelupe [2011] WSSC 50; Halsbury's 3rd Ed, Vol 15 at paragraph 703, Faitua v Vaelupe [2011] WSSC 50 and Hastings Election (1869) 1 O'M & H 217.
^[20] Latu v Lavulavu, ibid, at [26], citing Halsbury's, paragraph 780.
^[21] Referred to in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [15].
^[22] In his closing submissions, Mr Edwards said that the Tongan word used by Hengihengi meant “create enmity”.
^[23] [6]
^[24] [20]
^[25] Latu v Lavulavu, ibid, at [42] citing Ha'apio v Keniasina [2011] SBHC 177 and Haomae v. Bartlett [1988-1989] SILR 35.
^[26] Rev. Nesiasi was not called to give evidence nor was an affidavit from him filed in the proceeding. During the trial, Mr Saulala said the Reverend has recently passed away.
^[27] When ‘Ahio first gave evidence, a chair was placed in front of the witness box for him to sit. All the subsequent witnesses gave evidence from that chair which provided a better vantage point from the Bench to observe their demeanour.
^[28] The English translation stated “a day within the week the election was held” but both parties agreed that the original Tongan version sated as above.
^[29] E.g. “he is very loving and helpful”.
^[30] Only paragraph 14 in relation to the $20.
^[31] At [6].
^[32] Latu v Lavulavu, ibid, [108], referring to Ha'apio v Keniasina [2011] SBHC 177 at [29].
^[33] ibid at [109], citing Wigan Case; Spencer & Presst v Powell (1881) 4 O'M & H 1 at 14 referred to in Scott v Martin at 673.
^[34] Latu v Lavulavu at [27], citing Scott v Martin (1988) 14 NSWLR 663, 670 and Henslow v Fawcett (1835) 3 Ad & El 51, 58.
^[35] Latu v Lavulavu, ibid, at [26], citing Halsbury's, paragraph 780.
^[36] [6]
^[37] [9]
^[38] [22]
^[39] [13]