Ulakai v Piukala [2023] TOSC 10; CV 82 of 2022 (28 February 2023)

IN THE SUPREME COURT OF TONGA
ELECTORAL JURISDICTION
NUKU’ALOFA REGISTRY

CV 82/2022

IN THE MATTER OF :

THE ELECTORAL ACT (“the Act”)

BETWEEN :

Feleti ULAKAI
Petitioner

- and –

Paula Pivani PIUKALA
Respondent

Judgement

BEFORE : THE HONOURABLE COOPER J
Counsel : Miss Kafoa & Mrs Ebrahim for the Petitioner
The Respondent in person
Date of : 13^th February 2023

1. On 9^th August 2022 the Court of Appeal upheld the findings of Lord Chief Justice Whitten KC of 2^nd May 2022, in declaring void the election of Sione Sangster Saulala to the seat of Tongatapu 7 at the General Election of 18^th November 2021, having found him guilty of two counts of bribery contrary to section 21 (1) (a) of the Electoral Act (the Act).That Electoral Petition was brought by Mr. Paula Pivani Piukala.
2. That then resulted in the by-election held 3rd November 2022 which in turn was won by Mr. Paula Pivani Piukala.
3. That result was then challenged by Mr. Feleti Ulakai, in a petition served on the Respondent on 6^th December 2022. The trial of which was heard, commencing on 13^th February 2023, evidence called up to and including 15^th February 2023. Further oral submissions were made on 27^th February 2023.

The trial

4. On behalf of the Petitioner the case was opened by Miss Kafoa of Counsel. The allegation being that there were five instances of bribery contrary to section 21 (1) (a) of the Act, committed by Mr. Piukala which, if proved, would void his election to that seat. These were the giving of cash prizes for poetry competitions at Mr. Piukala’s campaign events, the giving of cash prizes at an event at the Golf Club and, lastly, the giving of groceries to Mamata Kohinoa.
5. It is to be noted that each of these occasions complained of is alleged to have taken place within 3 months of the election.
6. The witnesses to be called by subpoena and those attending as part of the Petitioner’s case, along with the general nature of the exhibits to be tendered were all identified. The evidence was then called.

Semisi Hopoi

7. He is 46 years old and lives in Ha’ateo. He is a registered voter for Tongatapu 7.
8. He referred to his affidavit of 17^th January 2023, identifying it as his document. He made three changes to it, removing the word “final” that was stated twice in paragraph 8, and changed the reference in paragraph 15 from Joan Ngahe of Ha’ateiho instead stating that she was a resident of Pea.
9. His affidavit then stood as his evidence and became exhibit P1.
10. He produced 4 video files he had caused to be downloaded from Facebook; video exhibits B, C, D & E.
11. He produced Exhibit P 2 which is a bundle of images and text taken from Facebook, divided into 5 sections marked “A” to “E”.
12. Alongside that document, on behalf of the Petitioner was produced as an agreed document between the parties, “Petitioner’s transcribed versions of annexure “A” and annexure “B” with its English translations” as Transcript 2.
13. In Exhibit P2, at tab “A” he identified the people in the images who were receiving envelopes from Joyan Ngahe.
14. In exhibit P2, tab “B” he identified the three men in the images of the same group at the event at the golf club.
15. Exhibit P2, tab “C” he identified a number of the people reading poems at the event in Ha’ateiho.
16. In exhibit P2, tab “D” he identified a number of people reading poems at the event at Itilei Fevaleaki’s residence, Ha’ateiho.
17. In exhibit P2, tab “E” he identified the people, all posted onto the Facebook page of Joyan Ngahe, on 3^rd November 2022, holding envelopes. He also noted the text that was from the same Facebook page, the translation of which has been provided in Transcript 2 pages 11-12, and was of a Facebook page from Joyan Ngahe he had also downloaded.
18. In the videos, video files B, C & D, he noted that Mr. Piukala had been present at each event.
19. I should note that whilst on occasions in sections “C”, “D” and “E” of Exhibit P2 there are noted voter registration numbers, this information never put into evidence by this (or any) witness and the document P2 was an not agreed document for that purpose. So, there never was before the court any evidence of voter registration numbers, whatever else is stated in Exhibit P2.

Cross-examination

20. He explained that mentioned in one of the Electoral Petitions by Justice Niu in 2022 was the expression that “the giving of money is always likely to be misconstrued”.
21. In his view there had been an interference upon the influence Mr. Piukala had exerted and this had led him, Mr. Hopoi, to prepare the bundles and work on the election petition.
22. He insisted, through a series of answers to closely related questions, that the giving of money would almost always interfere with people’s behaviour, referring to that as their “cognitive domain”. And, if it did not actually have an influence, it was most likely to be thought to.
23. He accepted that he had not spoken to the Master of Ceremonies or the recipients to understand their states of mind.
24. He stuck by paragraph 11 of his affidavit, that he believed the giving of cash prizes at the poetry competition was to influence voters.
25. He had added to the material he had collected for the case, the videos, referred to above, as he believed they demonstrated that the appearance of money had occurred more and more frequently during the Respondent’s campaign.
26. He denied he had contributed to the case out of malice.
27. He was not sure if he had ever heard the Respondent at any of the events in question state words to the effect of “remember me or vote for me [at the by-election]”.
28. Asked if he was aware whether any prize winner felt bribed or induced to vote for the Respondent on account of prize money, he stated that those were questions to be answered by the lawyers for the Petitioner.
29. There was no other motive than a concern that there had been an offence of bribery that had led him to lend his weight to the case.

Re-examination

30. There was none.

Feleti Ulakai

31. He is 49 years old and lives in Pea and he identified his affidavit it became his evidence and was exhibited as P3. He is a registered voter for Tongatapu 7.
32. His affidavit referred to the videos and still images, as above.
33. The Respondent agreed these exhibits and there was no need for the witness to be shown them.

Cross-examination

34. He accepted that he understood the magnitude of the allegations and defined what bribery meant to him and what he understood a political campaign to mean. He had campaigned for another candidate, Feleti Fa’otusia.
35. Asked about paragraph 4.2 of his affidavit, the alleged giving of $100 to “...a few people whom (sic) are voters of Tongatapu 7...”, he accepted he had not enquired from whom that money had come.
36. He had seen money given and so believed there had been acts of bribery.
37. It was not a question of being “an imbecile” or of “unsound mind”, as had been suggested, he was simply collecting evidence through the technology available and bringing the case to court.
38. He had not checked and asked whether a prize winner felt bribed or induced by prize money, but he believed that was the effect of what had taken place because Mr. Puikala was present while those distributions were made.
39. It was readily accepted the videos and still images did not show that Mr. Piukala had caused his supporters to hand out cash awards, but he believed the Respondent was behind it. Because the Master of Ceremonies had mentioned sponsors would donate prizes and Mr Piukala was there with his supporters he equated the giving of the gifts with the Respondent.
40. He had not spoken to the Master of Ceremonies nor anyone who had received a prize.
41. It seemed perfectly logical to him to bring this case to court on that basis of what he had seen of the broadcast. Accordingly, he stood by paragraph 5 of his affidavit; the poetry competition and the prizes were just to induce votes for the Respondent. People were not going to write poems in praise of Mr. Piukala just out of the blue. The prizes were awarded by his supporters; so by the giving of the money he coerced the recipients to vote in his favour. No one was forced to take part but with money awards they were induced to.
42. Of the event at the Golf Club, he had watched the broadcast and those people in the image were not golfers yet had won a prize. He did not know how much but the envelope handed over had a dollar sign on it, so he assumed that was a bribe.
43. He had not heard the Respondent ask the winners to remember him at election day, but the giving of these prizes was made within 3 months of the by-election.
44. At the event at the golf course the Respondent gave away prizes and gave out free beer.
45. It was not a question of whether they were friends of Mr. Puikala, since this was not something he made a habit of.
46. As far as he was concerned this did not happen regularly, as was suggested, if it had he would have expected to see more live-stream broadcasts of him giving away prizes, which he hadn’t.
47. There having been many questions put by the Respondent to both this witness and the last that were predicated on his having given money prizes at the events in question, the Court asked if he accepted that this was what he had done. Unreservedly he accepted that Tevita Eli, at the Golf Course event was an example of someone who had received a prize from himself.
48. He had spoken to Tevita Eli and knew that Tevita Eli had supported another candidate at the General Election and concluded that the change in support to the Respondent at the By-Election was on account of beer and money he was given at the Golf Course event.
49. He believed he was given beer because he saw him on the live-stream holding a beer bottle. Tevita Eli is his cousin and he was shocked by the change in support.
50. Turning to the final allegation at paragraphs 12 to 19 of his affidavit, the groceries given to Mamata Kohinoa, he accepted they had been given without it said they had come from Mr. Piukala directly or indirectly.
51. Mr. Puikala accepted that there had been the gift of groceries given to Mamata Kohinoa by Mele Folaumoeloa and Kili Silini.
52. Mr. Ulakai had been present on this occasion, but he conceded that he had not heard anything said that amounted to campaigning for Mr. Piukala at that time.
53. He knew both Mele Folaumoeloa and Kili Silini, they belonged to a group called Vincent De Paul, part of a Church group.
54. Mele Folaumoeloa had told him the groceries were from Vincent De Paul, but he had not spoken to Kili Silini.
55. They would hand out donations of food, but that was only once a year on 27^th September, and the gift complained of had taken place 8^th October, so it was not connected to the Church.
56. He did not know where Mamata Kohinoa was at the time of the trial, but thought it was sufficient that he himself gave sworn evidence of what had taken place.
57. Neither told him that the groceries were given on behalf of Mr. Piukala, but this is what he deduced. Even though Mele Folaumoeloa had told him the groceries were from Vincent De Paul, he believed they were from the Respondent.

Re-examination

58. Mr. Ulakai explained that he believed both Mele Folaumoeloa and Kili Silini were strong supporters of the Respondent, having seen them at many of his campaign events.
59. He reiterated that the Vincent De Paul sponsored gifts took place only once a year.
    

Sunia Halaholo

60. He is 55 years old, and a Primary School teacher. He identified his affidavit, it became exhibit P4 and was adopted as his evidence. He is a registered voter for Tongatapu 7.
61. He had watched a broadcast of the event at Itilei Fevaleaki’s residence. It was a poetry competition and the Respondent had been present and made speeches. There had been music and dancing.

Cross-examination

62. The filming of the events was not done in a secretive way. He had not spoken to any prize winner to see if they felt bribed or induced to vote for the Respondent.

Owen Vea

63. He is 49 years old and lives in Ha’ateiho. He is a registered voter for Tongatapu 7.
64. He identified his affidavit, the only correction being to paragraph 8 and the penultimate word, 2^nd line changed from “he” to “they”. Otherwise it was exhibited as P5 and stands as his evidence in the case.
65. He confirmed that he had seen the broadcast of the event at Itilei Fevaleaki’s residence and the event at the Golf Course.
66. The video footage of it was played from 1 minute 3 seconds until the end, the video file being 2 minutes and 1 second in length.
67. There was a reference to him in the sound track albeit he was not present at the event.
68. It was said that the recording was made by Hola ‘Otuafi, though that appears to have been an assumption, the witness not being present, based on the former’s voice being one of those off-camera.
69. He referred to the envelope that Tevita Eli was given and named Pita Poleva as the other man present along with the Respondent.
70. Of the event at the Itilei Fevaleaki’s residence, he had watched the broadcast , he saw the poems read out and the Master of Ceremonies call out who had won prizes.

Cross-examination

71. The film of the broadcast of those events was not made in secret.
72. He had been drinking kava with Hola ‘Otuafi later, the evening of the Golf Club event and Hola ‘Otuafi had told him Tevita Eli and Pita Poleva had got rich at that event, that they had received beer, but that was just a joke.
73. He never actually asked Tevita Eli or Pita Poleva whether they were bribed. Though both were by then supporting Mr. Piukala, having changed their support from a different candidate in the General Election.

Re-examination

74. There was none
75. That concluded the case for the Petitioner.
76. It should be noted that in reference to Exhibit P 2, tab C, page 18 had a line put through it and was deleted on behalf of the Petitioner.
77. Further, Transcript 1 became superseded by Transcript 2, the former being dispensed with entirely.

The Respondent

78. Mr. Piukala called no evidence.
79. That being so, that was the close of the evidence in the trial.

The law

80. Following R v Tui’onetoa v Kiu AC 8 of 2022, it is for the Petitioner to prove the elements of the allegation of bribery and that must be done to the criminal standard, beyond reasonable doubt.

Statutory framework

81. Section 21 (1) (a) of the Act sets out the following :

(1) Every person commits the offence of bribery who, directly or indirectly, by
himself or by any other person on his behalf —

(a) 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...

(2) In this section, a reference to giving money or valuable gift includes a reference to giving, lending, agreeing to give or lend, offering, promising or promising to procure or try to procure, any money or valuable gift.

(3) For the purposes of this section, any money or valuable gift given or offered or

agreed to be given (in the absence of good consideration) to any person (except a person named in section 24(3)) 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.

82. In this case the Petitioner had to prove beyond a reasonable doubt that :
    1. there was an offer by Mr. Piukala, or someone on his behalf;
    2. of money or a valuable thing;
    100. to an elector or electors or any other person on behalf of an elector or any other person.
83. If the essential elements of the offence were proved to the criminal standard; money or valuable gift was made within three months of the election, it is then for the Petitioner to rebut the statutory assumption on the balance of probabilities.
84. I remind myself that from the outset, in his response dated 21^st December 2022 and at the preliminary hearings, Mr. Piukala has set out that he disputes all the allegations in every respect and that the respondent must prove the whole of their case. Effectively he has agreed nothing.
85. Further, I remind myself that none of the alleged recipients of money or gifts were called to give evidence.
86. The second limb of section 21 (1) (a) requires proof of actual or inferred knowledge and assent on the part of the Respondent to the money or gift being given by that other person on his behalf, for the reasons set out by Lord Chief Justice Whitten KC at paragraph 146 to 147 Sika v Fasi paragraph 67 TOSC 17.
87. The recipient of the money or gift must be to a registered voter, for the reasons set out by Lord Chief Justice Whitten KC at paragraphs 146 to 147 Sika v Fasi (ibid).
88. In turning to the detail of the allegations and the submissions and consideration in arriving at a decision, each and everyone has been reviewed both in the light of the evidence, as summarised as well as, where relevant, the video, still images and transcripts, detailed hereafter and all submissions.

The event at the Itilei Fevaleaki residence

Submissions

89. On behalf of the Petitioner amongst other points the following were submitted, the essence being effectively the same for each of the poetry events:
    1. Participants in the poetry competition were voters registered in Tongatapu 7.
    2. Prizes were awarded for those poems.
    100. The competitions took place at Mr. Piukala’s campaign events.
    4. The poems were in praise of Mr. Puikala.
    5. Joyan Tauelangi Ngahe is a “strong supporter” of the Respondent.
    6. Her Facebook account had information on it concerning the award of prizes, equated those to money and named the winners.
    7. Those winners, as listed on Miss Ngahe’s Facebook page, were registered voters of Tongatapu 7.
    8. Mr. Piukala never actually disassociated himself from the poetry competitions with their associated prizes.
    9. The giving of the prizes was on behalf of Mr. Piukala.
    10. It was within three months of the election
    11. He had offered no evidence to rebut the statutory assumption pursuant to section 21 (3) of the Act.
    50. The Petitioner therefore had proved his case, the elements of section 21 (1) being proved beyond a reasonable doubt, and in the absence of any evidence from the Respondent.
90. Mr. Piukala made a single submission to cover each of these events. These points included what he submitted to be three essential arguments:
    1. None of the poetry competitions had been demonstrated to be organised by him.
    2. The prizes had not been proved to have been given by him or on his behalf.
    100. It was not with the aim to induce people to vote for him.
    4. What other people post on their social media pages is out of his control.
       

Discussion

91. This was an event where a poetry competition took place. It was held at a campaign event for Mr. Piukala and he was present throughout.
92. Between the video footage (Video File D) and the transcript, Transcript 2, pages 7-9, it is clear that during the course of that event poems were read and prizes announced.
93. The allegation in the Petition (page 1 paragraph 1 of the Petition, served on a date in December 2022 (though which exact date has not been stated)) is that money was given at this event and was a bribe, it being within 3 months of the by-election.
94. The Transcript records at , 5^th portion, that the first prize was $100 and was sponsored by Fatafehi Lola.
95. The 6^th portion, page 9, refers to prizes of money though it is not clear who was the sponsor or who were winners from the extract.
96. The 7^th and final portion, again page 9 of the transcript, notes that a person called “Asiata” has told the person making the announcement that $100 for each “Fehi, Kili and Ngia are different from prizes”. Whether that was an announcement of a prize or not, I simply do not understand given it was said “...are different from prizes...”.

In any event, there are three aspects to this allegation that need to be analysed (i) were these offers to give prize money for poems made on behalf of Mr. Piukala ? and (ii) was prize money given ? If prize money was given on behalf of Mr. Piukala (iii) was it to a registered elector ?

97. (i) Was the prize offered to be given on behalf of Mr. Piukala ? The giving of the prizes for poems could have been a spontaneous event, for all I know. Fatafehi Lola was said to have been a sponsor, and has not been called to give evidence. What that person did and why is therefore unclear. Just as the arrangements made by other sponsors of the prize money.
98. There is no evidence how this event was organised, for example whether there was a program of activities or not.
99. Without a more careful and detailed presentation of available evidence that shows, for example, positive links between the sponsors of the prize money and Mr. Piukala as well as a plan between them for this to have taken place, the only evidence being his attendance at the event where it happened, I conclude it is impossible for me to be sure that Mr. Piukala knew and assented to the prize money being given and it was on his behalf.
100. If I am wrong about that, I turn to the second limb (ii) was prize money given ? At Exhibit P 2, page 6, Fatafehi Manu Tala’aho Vea was identified as a person who read a poem.
101. Transcript 2, portion 7 at page 9 refers to “Fehi” in connection with $100, though what that connection is, is not clear.
102. Exhibit P 2 at Tab E, page 2, has at the bottom a small image of an envelope addressed to “Fehi Vea” and with “$200, written underneath.
103. Other than this one example that I have found, there is no connection between the people who read poems and those that seemingly got given money.
104. I say “seemingly” as an image of a person holding an envelope with, for example their name and “$100” written on it, whilst it is evidence that tends to suggest the envelope contained cash, it is not the same as it being evidence of cash being given.
105. In the frenzied world of election campaigning and social media posts (not to mention when both collide), what is real and what is sham with a view to induce goodwill and so votes through advertising needs to be carefully considered.
106. I am quite firmly of the view that on a Facebook post (or any other social media posting) something can be stated and made to look as true, but unless there was clear evidence of money passing over, the images at Exhibit P2, Tab E have not made me sure that has happened.
107. A better analysis of the available evidence would have led to an allegation that money was promised (as opposed to given), contrary to section 21 (1) (1) (a) of the Act. But, that was not done, so can not be said to have been part of the allegation.
108. In any event, we shall look at the third limb momentarily and see why that would have failed too.
109. Exhibit P2, tab E is said to be a Facebook page of one Joyan Yauelangi Ngahe.
110. While she was summonsed by subpoena and a witness for the Petitioner as she was said to be a strong supporter of Mr. Piukala and behind a number of posting and the handing out of cash, she was ultimately never called.
111. That decision not to call the summonsed witnesses has seemingly left a significant hole in the evidence . In this example it means that all the posts said to belong to Joyan Yauelangi Ngahe, have not been established as such.
112. By simply producing, as part of a case, an internet web page, does in no way prove the truth of its contents and certainly not when the burden is beyond a reasonable doubt.
113. Aside from the images, the text at page 2 of tab E and pages 10 - 13 is simply hearsay. I cannot see how that truth of the contents of those passages can have been said to be proved beyond a reasonable doubt in the absence of the author.
114. If I am wrong about that and the first two limbs were in fact both proved beyond a reasonable doubt, turning to the third (iii) that the recipient was a registered voter, after carefully reviewing all the evidence I have no hesitation in saying that has not been proved.
115. None of the people associated with the poems or said to be recipients of the cash prizes were called. There then is no evidence from them as to whether they were registered voters. No document has been provided in respect of those registered to vote. In short, this issue has been entirely neglected.
116. Thus it seems to me that every aspect of the first three elements that need to have been proved have failed.
117. For these reasons this part of the allegation has not been proved.

The Silapeluua Rugby Ground event

Submissions

118. On behalf of the Petitioner amongst other points the following were submitted:
     1. Participants in the poetry competition were voters registered in Tongatapu 7.
     2. Prizes were awarded for those poems.
     100. The competitions took place at Mr. Piukala’s campaign events.
     4. The poems were in praise of Mr. Piukala.
     5. Joyan Tauelangi Ngahe is a “strong supporter” of the Respondent.
     6. Her Facebook account had information on it concerning the award of prizes, equated those to money and named the winners.
     7. Those winners, as listed on Miss Ngahe’s Facebook page, were registered voters of Tongatapu 7.
     8. Mr. Piukala never actually disassociated himself from the poetry competitions with their associated prizes.
     9. The giving of the prizes was on behalf of Mr. Piukala.
     10. It was within three months of the election
     11. He had offered no evidence to rebut the statutory assumption pursuant to section 21 (3) of the Act.
     50. The Petitioner therefore had proved his case, the elements of section 21 (1) being proved beyond a reasonable doubt, and in the absence of any evidence from the Respondent.
119. The Respondent’s submissions have been summarised above.

Discussion

120. Again, this was an event where a poetry competition took place. It was held at a campaign event for Mr. Piukala and he was present throughout.
121. Video file C contains the relevant footage.
122. Transcript 2 at pages 1 to 7 set out the 6 portions of audio, reduced to text, that are relied on, on the Petitioner’s behalf.
123. In those portions of audio recordings the Respondent makes a plea for votes, there is an announcement addressed to the “sponsors” of the poetry competition. There was then an announcement that “a little girl” won a prize and that Joyce Taufa won $500. After that further speeches in support of the Respondent then an announcement that the poems would start.
124. Exhibit P 2 tab C, pages 1 to 16 are of a Facebook page with the name “Fatafehi Lola”. The author of that Facebook page was not called to give evidence.
125. There are references to certain people as having a stated “voter reg” number. Whilst that has been printed on some of those pages, there was no evidence of this adduced. I remind myself the Respondent made it clear, throughout, that all aspects of the Petitioner’s case had to be proved. This was not part of what has been proved, so was not established.
126. Firstly turning to the general nature of the allegation.
127. There was an announcement addressed to the sponsors of the poetry competition. That of itself does not prove that there were cash prizes at that event for a poetry competition. It lacks the necessary detail for me to find that proved.
128. As noted in portion 3 of that event (Transcript 2, page 2) a prize is mentioned for “the little girl” and for Joyce Taufa, but since that was before the poems were announced as going to be read, it is not clear to me what those prizes are for.
129. It follows that what is alleged, the giving cash prizes for a poetry competition, has not even itself been proved.
130. Say I am wrong in this, then I will consider the 3 elements in any event.
131. Cash was offered on Mr. Piukala’s behalf (i) For the same reasons as before, whilst the Respondent was present at the event, so would have heard and so and knew what was being announced, whether this was done with his prior knowledge, his acquiescence or any agreement is moot.
132. Who the sponsors of the prize money (if there was any) were, on the evidence before me has not been established. What the arrangement was for prize money to be given remains obscure as long as none of the parties to that arrangement have given evidence.
133. It follows that I am not persuaded to the requisite standard that if there was a prize of cash for a poetry competition that night, this was done on behalf of Mr. Piukala.
134. I turn to the evidence at Exhibit P2 tab A.
135. If I am incorrect in that assessment, I address the next element (ii) was prize money given ?
136. The dilemma faced by the Petitioner combines both the fact that no prize money for any poetry competition that evening has been adequately proved in this example, with there being no images of prize money being given !
137. It is safe to say that element has not been proved.
138. Lastly (iii) were cash prizes given to a registered voter ? There has been no evidence of this either; there appears to be a hole where the evidence was meant to be and nothing has been adduced to deal with this point. There is no equivalent evidence of tab A or Tab E (images of envelopes, supposedly of cash, given). With no giving of cash even alluded to, there were no recipients and no person’s identity pointed to as potential voters.
139. It maybe the lawyers for the Petitioner thought that Joyce Taufa was a recipient. But, without clear evidence that was in relation to the evening’s poetry competition, that suggestion falls aside.
140. I turn to the last limb (iii) was money given to a registered voter ? Again, not a single person said to have been given cash prizes for this event have been called to give evidence, or have the record of registered electors been adduced and put into evidence.
141. After carefully reviewing this allegation, I conclude every aspect of it has failed.
     

The Kelepi Tauelangi residence event

Submissions

142. On behalf of the Petitioner amongst other points the following were submitted, the essence being effectively the same for each of the poetry events:
     1. Participants in the poetry competition were voters registered in Tongatapu 7.
     2. Prizes were awarded for those poems.
     100. The competitions took place at Mr. Piukala’s campaign events.
     4. The poems were in praise of Mr. Piukala.
     5. Joyan Tauelangi Ngahe is a “strong supporter”of the Respondent
        6. Her Facebook account had information on it concerning the award of prize es, equated those to money and named the winners.
        7. Those winners, as listed on Miss Ngahe’s Facebook page, were registered voters of Tongatapu 7.
        8. Mr. Piukala never actually disassociated himself from the poetry competitions with their associated prizes.
        9. The giving of the prizes was on behalf of Mr. Piukala.
        10. It was within three months of the election
        11. He had offered no evidence to rebut the statutory assumption pursuant to section 21 (3) of the Act.
        50. The Petitioner therefore had proved his case, the elements of section 21 (1) being proved beyond a reasonable doubt, and in the absence of any evidence from the Respondent.
143. The Respondent’s submissions have been summarised above.

Discussion

144. Once more, this was an event where a poetry competition took place. It was held at a campaign event for Mr. Piukala and he was present throughout.
145. Video file E is a recording of the footage.
146. Transcript 3, albeit without it containing any notes as to the relevant timings, relates to that event.
147. The images at Exhibit P 2, tab A as well as the text at page 2 are all said to relate to this event.
148. The text at Exhibit P2, Tab A has been translated and is set out at Transcript 2, page 11, labelled “Annexure Marked “B” from AOR of Semisi Hopoi.”
149. I address my mind to the three elements the Petitioner must prove; (i) were there offers to give prize money for poems made on behalf of Mr. Piukala ? and (ii) was prize money given ? If prize money was given on behalf of Mr. Piukala (iii) was it to a registered elector ?
150. Going by the video footage and the transcript, the event started with a number of speeches made in support of Mr. Piukala as set out pages 1 to 6.
151. At the bottom of page 6 it is stated that the Master of Ceremonies announced the poetry competition.
152. He stated “I just received a sponsor for this activity.” The prize money was then announced.
153. Piveni Kiti, Mele and Siokalafi are all said to be sponsors of the competition; which appears to suggest they are the people who gave the money for the prizes.
154. Pages 7 to 12 of Transcript 3 set out the poems. Suffice it to say each is in praise of Mr. Piukala.
155. On page 12 the transcript concludes with the announcement of the cash prizes and to whom they were given, as well as an announcement that each participant was to receive $100.
156. In analysing the question as to whether these offers were on behalf of the Respondent, the same issues arise as in the last two examples. None of the people involved have given evidence. What the arrangements for this event were are unknown. What was discussed or planned is entirely a matter of conjecture.
157. But, above and beyond those points it appears highly relevant that in this case, as noted at Transcript page 6, line 31, the Master of Ceremonies refers to the prizes as having “just” been received from a sponsor.
158. This suggests that there was an ad hoc arrangement. That would tend to suggest no arrangement with Mr. Piukala.
159. The reference at page 12, line 15 to the funds for other prizes coming from America and Suave may also suggest those monies were remote of what Mr. Piukala knew of.
160. Yet the fact remains with no evidence from any of the people involved in the campaign event, the organising of the festivities that night and, most relevantly, from those named as sponsors, it is quite impossible for me to know what the arrangements were and what Mr. Piukala knew; so whether this was done on his behalf or not.
161. If for any reason I am wrong in that assessment, I go on to consider (ii) whether money was given ? The same issues arise as above. The evidence that is pointed to of money actually being handed over comes from the images at Exhibit 2, tab A.
162. Those are images from a Facebook page said to be in the name of Joyan Tauelangi Ngahe. She was not called to give evidence. Whether that page is hers, or the text typed by her is unproved. As has been observed above, to produce images from the internet for the truth of their contents can never be proved to the Criminal Standard without there being more.
163. Further, images of envelopes produced with amounts of money written on the front, is not the same as proving that money was really given.
164. I am not persuaded beyond a reasonable doubt that money was actually given, as opposed to offered, to any person at all.
165. For the sake of argument I turn to the last limb (iii) was money given to a registered voter ? Again, not a single person said to have been given cash prizes for this event have been called to give evidence, or have the record of registered electors been adduced and put into evidence.
166. This limb has not been established either; again, this allegation fails for the reasons I have stated.

The Golf Club event

Submissions

167. Inter alia, the following points were made on behalf of the Petitioner :
     1. The Respondent had accepted during the course of the trial he had given a gift at that event.
     2. That gift was money.
     100. This event was within three months of the Election.
     4. Gifts of money had gone both to Tevita Eli and Pita Poleva.
     5. Both were registered voted.
     6. Mr. Piukala had not given evidence so had not shifted the statutory assumption pursuant to section 21 (3) of the Act.
168. Mr. Piukala made a number of submissions including these points :
     1. The recipients were people he knew well and friends, his actions were based only on friendship.
     2. What he did was not bribery.
     100. It was not done to induce anyone to vote for him.
     4. Not calling Mr. Eli meant there was a hole in the Petitioner’s case.
     5. Everything he had done he was quite open about.

Discussion

169. This is said to be a campaign event, where prizes of money were handed out and the Respondent was present.
170. The evidence is in the form of video file B, alongside Transcript 2 page 1, the first entry in the table entitled Recording 1.
171. Exhibit P2, Tab B are the still images from that video.
172. Working through the elements to be proved by the petitioner (i) was this an offer by the Respondent ?
173. Because of the way that Mr. Piukala formulated his questions in cross-examination it was clear they were predicated on the fact that he had given a prize at the Golf Club event.
174. The Court sought this necessary clarification and Mr. Piukala in the clearest terms stated that he had given away a prize at that event and was content for that to be an agreed fact.
175. That meant that (i) it was proved there had been an offer. (ii) was money given ? The nature of the prize being in an envelope that, on Mr. Ulakai’s evidence had a dollar sign marked on it and Mr. Piuhala accepted was a prize, I conclude so that I am sure, it did indeed contain money which was given to the person identified as Tevita ‘Eli (and also one to Pita Poleva) directly by Mr. Piukala.
176. (iii) to a registered voter ? That part remains unknown. Whilst Tevita ‘Eli had been the subject of summons and subpoena, he was not called. It might well be assumed he was a registered voter given his attendance at campaign events, yet since he did not give evidence nor was any register put into evidence, that side of the allegation remains unproved. The same applies to Pita Poleva.
177. For those reasons this allegation also has failed to be proved.

The gift of groceries to Mamata Kohinoa

Submissions

178. Amongst the points made, essentially the following was submitted on behalf of the Petitioner :
     1. The Gift of groceries went to a number of people including Mamata Kohinoa.
     2. All the recipients were registered to vote in the election.
     100. Mr. Piukala admitted in court that those gifts were made.
     4. The evidence pointed to their not having been given by the church group Vincent De Paul as those gifts were only made on 27^th September and these gifts had been given on 8^th October.
     5. The gifts, were valuable gifts within the meaning of section 21 (1) (a).
     6. The gifts were given by Mele Folaumoeloa and Kili Silini He’akau, who were strong supporters of Mr. Piukala.
     7. They were made within three months of the election.
     8. Mr. Piukala had not given evidence so not rebutted the statutory presumption.
179. Mr. Piukala’s submissions included these points :
     1. It was not demonstrated to the required standard the gifts did not come from the church as claimed but on his behalf.
     2. It was not proved or could it be inferred he had a hand in giving those gifts.
     100. There was a gap in the evidence the Petitioner need to prove because the recipient of the gifts had not been called.

Discussion

180. Unlike all the preceding allegations there is no video evidence, Facebook or other social media posts, still images or transcripts that relate to this allegation.
181. Evidence came from, inter alia, Mr. Ulakai, who stated that he was present at the home of Mamata Kohinoa when the groceries were given to her.
182. It was accepted by Mr. Piukala that the groceries were given and that was done by Mele Folaumoeloa and Kili Silini He’akau.
183. Mr. Ulakai did not hear any mention of Mr. Piukala or any entreaty to vote for him.
184. He disputed that the groceries were from the church given by Vincent De Paul group, stating his family were involved in that organisation and their donations were made on 27^th September and this had been 8^th October.
185. But, nether Mele Folaumoeloa, nor Kili Silini He’akau nor Mamata Kohinoa were called.
186. There was no evidence that Mele Folaumoeloa, nor Kili Silini He’akau were in fact supporters of the Respondent, other than the word of Mr. Ulakai, which was, on its own, insufficient in my view; being a lone voice and not independent evidence to establish that as a fact.
187. (i) without evidence from Mele Folaumoeloa, or Kili Silini He’akau, it is impossible for me to know what the arrangement was that led to groceries given to these people or what their relationship, if any, to Mr. Piukala was at that time.
188. (ii) It was accepted that groceries, so a valuable gift was given. So I am quite sure that aspect has been proved.
189. (iii) Once again there was never any evidence that Mamata Kohinoa was a registered voter, her having not been called to give evidence and no documentary evidence of that fact adduced.
190. From that analysis of the evidence it follows that allegation has also failed to be proved.
191. As a foot note I should add this. It might be thought that because section 21 (1) includes within the giving of money or valuable gift the promise of doing the same, so that it could be argued that the Petitioner in not proving money was given in respect of the poetry competitions events, could still rely on the promise when a person was told they had won.
192. The difficulty with that is that was never how the case was actually put by the Petitioner’s lawyers.
193. Conceivably that argument would be obviated by section 35 of the Act :

On the trial of any election petition —

(a) the Court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities;

(b) the Court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the Supreme Court.

194. Yet, the need to prove all aspects of a case, where a Respondent has clearly stated that he disputes all matters and puts the other side to strict proof, means a failure to prove a necessary element, such as the people allegedly given groceries or money were registered electors can not be overlooked and section 35, in my judgement, does not empower me to do so or allow me to have such evidence produced to fill a gap in a party’s case.

Result

195. None of the allegations as set out in the Petition, on the evidence called, was proved beyond a reasonable doubt, so to the required standard. So the case for the Petitioner has not been proved.

Costs

196. The petitioner is to pay the costs of, and incidental to, the proceedings, to be taxed in default of an agreement.
     

Cooper J
Supreme Court, Nuku’alofa
28^th February 2023