Office of the Electoral Commissioner v Tuitui [2016] WSDC 43 (30 August 2016)

DISTRICT COURT OF SAMOA
Office of the Electoral Commissioner v Tuitui [2016] WSDC 43

Case name:	Office of the Electoral Commissioner v Tuitui
Citation:	[2016] WSDC 43
Decision date:	30 August 2016
Parties:	OFFICE OF THE ELECTORAL COMMISSIONER v TUULA KILIRI LAFI TUITUI male of Saleapaga
Hearing date(s):	1 August 2016
File number(s):
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai A. Roma
On appeal from:
Order:	- Charge dismissed.
Representation:	F M. Lemisio for prosecution
	I. Sapolu for defendant
Catchwords:	Falsity of the declaration
Words and phrases:
Legislation cited:	Electoral Act 1963 s5(4B), s5(3A)&(b)
Cases cited:	Malielegaoi v Tuitui [2016] WSSC 5, ( 24 February 2016) Electoral Commissioner v Le Tagaloa Pita (unreported, 17 July 2016)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

OFFICE OF THE ELECTORAL COMMISSIONER
Informant

AND:
TUULA KILIRI LAFI TUITUI, male of Saleapaga
Defendant

Counsel:
Mr. Faimalomatumua M. Lemisio for Prosecution
Ms. I. Sapolu for defendant

Hearing: 1 August 2016
Decision: 30 August 2016

DECISION OF JUDGE ROMA

Charge

1. The defendant is charged under section 5(4B) of the Electoral Act 1963.
1. The charge alleges that on the 8^th February 2016, he wilfully made a false declaration that he had satisfied section 5(3A) of the Electoral Act 1963 by having performed a monotaga for at least 3 years from the date his nomination paper was lodged.
2. On 29 August 2016 before I was to hand down my decision, I raised with Counsel the wording of the charge, whether there was any ambiguity in the use of the word ‘from’ in relation to when the 3 year period should end.
3. Having heard both counsel, I find that there is no such ambiguity, and the 3 years that the candidate must satisfy refers to the period prior to his nomination being lodged. In fact, the defence made no issue of the wording during trial, and the evidence is that the 3 year period requirement must precede the candidate’s nomination date.

Evidence by the Prosecution

4. The prosecution called 4 witnesses. Afualo Daryl Mapu is the Senior Returning Officer for the Office of the Electoral Commissioner. The other 3 witnesses, Sogimaletavai Neuili Lopai, Falanaipupu Emau Faapito and Puletiuatoa Pouvalu Faavalea are matais of the defendant’s village of Saleapaga.
5. The prosecution evidence is that in the lead up to the General Elections in March 2016, the defendant filed for the Electoral Commissioner’s (“Commissioner”) approval his nomination as a candidate for the Lepa Territorial Constituency. As with all candidates, he was required to make a declaration in the standard Form 1A declaring that:
   • (i) He had been living in Samoa for a period over 3 years in accordance with s5(3)(b) of the Electoral Act 1963; and
   • (ii) He has rendered ‘tautua’ (service) to his village pursuant to the customs of his village and therefore satisfied s5(3A) of the Electoral Act 1963.
6. The onus was on the candidate to satisfy the Commissioner that he met the above requirements. According to Mr Mapu, a declaration in the Form 1A, produced and signed by a candidate, and witnessed by a private legal practitioner, was sufficient to then grant approval before the candidate’s name was published in the Gazette.
7. On 8 February 2016, the defendant made the required declaration. It was signed by him and witnessed by Mr. Papalii Li’o Masipau, a private legal practitioner. The document was filed with the Commissioner’s Office. A copy was produced as Exhibit P1 for the prosecution.
8. The declaration is a single page document. It makes no mention of ‘monotaga’. It does not state the contents of section 5(3A) nor does it attach copies of the provision. Mr Mapu says that it is for the candidate to look up the contents of the relevant sections of the Act.
9. The evidence of the other 3 witnesses is that the accused had not rendered service (tautua) or performed a ‘monotaga’ in accordance with the normal village practices.
10. These witnesses were amongst signatories of a letter dated 21 December 2015 (Exhibit P3) by the Alii and Faipule of Saleapaga to the President of the Land and Titles Court stating that since the defendant became a matai of Saleapaga, he had not performed a ‘monotaga’ in the village and does not also live in the village. The purpose of the letter was to make known the Alii and Faipule’s stance, that they did not support the defendant running in the General Elections.

Evidence by the Defence

11. The defendant does not dispute making and signing the declaration. He says that he read the Form 1A; he knew that he had rendered ‘tautua’ (service) to his family and village and he did not think twice about signing the declaration.
12. His evidence is that since becoming a matai in 2006, he has done everything he was asked to contribute to his family and the village of Saleapaga. Following the 2009 tsunami, he helped out with the electrical wiring of some of the village homes, the church minister’s home and the village school building. Even after the 2011 General Elections, he went back and completed works on that project.
13. His ‘tautua’ also included monetary contributions to his family faalavelave and a Church fundraising raffle. He concedes however that the last time he went to the village was in 2011.
14. The second defence witness is Luafitu Alesana. He supports the defendant’s evidence of services rendered to his family and village.

Supreme Court Decision

15. On essentially the same evidence, the Supreme Court on 24 February 2016, in Malielegaoi v Tuitui [ 2016] WSSC 5, a challenge against the defendant’s eligibility to run in the March 2016 General Elections, found that the defendant had not carried out any ‘monotaga’ to his village of Saleapaga pursuant to the customs of the village, at least for the 3 years prior to lodging his nomination paper with the Electoral Commissioner.
16. The Defendant was thus disqualified from being a candidate for the Lepa Territorial constituency in the March General Elections.

Law

17. For the prosecution to succeed on this charge, it must prove that (1) the defendant made a false declaration and (2) he knew when he made the declaration that what he declared to was false. In a nutshell, the issue is about falsity and knowledge of such falsity. (see Electoral Commissioner v Le Tagaloa Pita (unreported, 17 July 2016)

Discussion

(i) Falsity of the declaration

18. It is not disputed that in a declaration dated 8 February 2016 (Exhibit P1), the defendant declared that “he had rendered ‘tautua’ (service) to his village pursuant to the customs of his village and therefore satisfied the requirements of ‘tautua’ as defined under s5(3A) of the Electoral Act 1963.”
19. The Supreme Court subsequently determined on the same evidence that the defendant had not carried out any ‘monotaga’ to his village of Saleapaga pursuant to the customs of the village, at least for the 3 years prior to lodging his nomination paper with the Commissioner.
20. The issue of the falsity of the declaration relating to the defendant satisfying s5(3A) has therefore been decided in the Supreme Court. Adopting the same finding, I am satisfied that where the defendant declares in his declaration “‘having satisfied s5(3A)”, that part of his declaration is false.
21. But the charge also alleges that the defendant further declared to “having performed the ‘monotaga’ for at least 3 years from the date on which his nomination paper was lodged.”
22. Looking at Exhibit P1, the defendant did not make any such declaration. In fact, the 3 years referred to in the declaration clearly relates to the period for which he must have resided in Samoa pursuant to s5(3)(b) of the Act, not for how long he has performed a ‘monotaga’ as alleged in the charge.
23. I accept that under s5(3A) which the declaration refers to, the candidate must have performed the ‘monotaga’ for at least 3 years prior to his nomination. But in my view, that is not what is stated in the declaration that the candidates were required to sign. It is also not stated on the defendant’s declaration (Exhibit P1).
24. The onus is on the prosecution to prove each and every allegation in the charge. The evidence does not support a declaration by the defendant in relation to the 3 years for the monotaga as alleged in the charge. The charge must therefore fail on this first element.
25. Even if I am wrong, and I found this element proven, I must consider the second element relating to the defendant’s knowledge of the falsity of his declaration.

(ii) Knowledge of the falsity of the declaration

26. The prosecution submitted that when the defendant made the declaration, he knew that he had not performed a ‘monotaga’ in accordance with his village customs, as defined under s5(3A) of the Act.
27. They rely on the evidence of the 3 matais of Saleapaga that the defendant has never performed a monotaga since becoming a matai, and on the defendant’s own evidence that the last time he came to the village was in 2011. They say that whatever contribution the defendant might have made were to his own family and not village service in accordance with the village customs.
28. The prosecution suggests that the defendant was given a copy of the legislation. The onus was on him to familiarize with the relevant provisions relating to requirements of candidacy, and whatever his interpretation of ‘tautua’ was when he made the declaration, he knew that it had to be in accordance with the meaning under s5(3A) of the Act.
29. The defence on the other hand argues that if the defendant’s declaration was false, he did not know of the falsity when he made the declaration. They submit that Form 1A makes no reference to ‘monotaga’ but ‘tautua’. As far as he was aware, he was rendering ‘tautua’ through the contributions he made to his family commitments and at one stage a church fundraising raffle.
30. As to the reference in the declaration to ‘tautua’ being of the meaning as defined in s5(3A) of the Act, the defence says that the declaration does not state or explain in detail the contents of s5(3A). It does not attach copies of the section for the deponent’s reference, and the defendant was not aware of the contents of s5(3A) when he made the declaration.
31. I have carefully considered the evidence and I have decided to accept the submission by the defence.
32. Firstly, the charge alleges that the defendant declared that he had satisfied s5(3A) by having performed a ‘monotaga’ for at least 3 years prior to lodging his nomination paper. The declaration signed by the defendant on the other hand, makes no reference to ‘monotaga’ but ‘tautua’, though it goes on to say that it is ‘tautua’ in accordance with custom and usage of the village, as defined under s5(3A) of the Act.
33. Even if ‘monotaga’ and ‘tautua’ were the same thing as submitted by the prosecution, the defendant’s evidence which I accept is that when he signed the declaration, he had in mind ‘tautua’ in its general and wider meaning, that of being ‘service’.
34. Secondly, the declaration does not state or incorporate the contents of s5(3A), nor does it attach copies of that legislative provision for reference by the deponent. The prosecution submitted that by signing a false declaration, the defendant is presumed to have fully known its contents and the falsity thereof.
35. There is merit in that argument if there was evidence to support it. But there is no such evidence. There is no evidence that the defendant was familiar with the provision of s5(3A). There is no evidence that the contents of s5(3A) was explained to him by anyone or Mr Masipau, the private practitioner who witnessed his signing of the declaration. There is also no evidence that when he signed the declaration, he knew that the ‘tautua’ he was declaring has been defined as ‘compulsory service, assistance or contribution.... pursuant to the customs of the village.’
36. Accordingly, even if the declaration was false in its entirety, I am not satisfied on the evidence that when the defendant made his declaration on 8 February 2016, he knew that what he was declaring to was false.

Conclusion

37. For the foregoing reasons, I find that the prosecution has not proven the charge against the defendant to the required standard. It is accordingly dismissed.

JUDGE FEPULEAI A ROMA