Sione v Ponifasio [2017] WSDC 30 (31 August 2017)

DISTRICT COURT OF SAMOA
Sione v Ponifasio [2017] WSDC 30

Case name:	Sione v Ponifasio
Citation:	[2017] WSDC 30
Decision date:	31 August 2017
Parties:	TAULAMAGO SIONE, ITUAU ENELE, FAATAUUU MALAUTEA, TEVAGA SAMILOLO, VA VEA v TUALA IOSEFO PONIFASIO, male of Malifa
Hearing date(s):	9 March – 4 April 2017
File number(s):	D861/16, D862/16, D863/16, D864/16, D865/16, D866/16, D867/16, D868/16, D869/16, D1520/16, D1521/16.
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:	In respect of Information 861/16, I am satisfied beyond reasonable doubt that the Defendant did commit the offence of bribery. In respect of Information 869/16, I am satisfied beyond reasonable doubt that the Defendant did commit the offence of bribery. In respect of Information 862/16, I am satisfied beyond reasonable doubt that the Defendant did commit the offence of bribery. In respect of Information 1521/16, I am satisfied beyond reasonable doubt that the Defendant did commit the offence of bribery. In respect of Information 863/16 I am not satisfied beyond that the Defendant committed the offence of bribery in respect of He would provide school resources to improve all schools. He would ensure that compensation will be paid to landowners whose lands would be taken for the construction of a bridge in the village; He would pay for the airfare of twenty (20) people listed to go to New Zealand for apple picking. He would arrange for a lawn moving contractor to be established in Samalaeulu and thereby provide employment for the young people in the village. This charge is hereby dismissed. In respect of Information D864/16 I am satisfied beyond reasonable doubt that the Defendant by and through his agent committed the offence of bribery. In respect of Information D865/16, I am satisfied beyond reasonable doubt that the Defendant by and through his agent committed the offence of bribery.
Representation:	R Drake for informants T R Faaiuaso for defendant
Catchwords:	bribery
Words and phrases:
Legislation cited:	Electoral Act 1963 s.96 (2), (3), & (4)
Cases cited:	Tautoloitua Farani Posala v Paepae Kapeli Sua [2006] WSSC 29, Mulitalo Sealiimalietoa Siafausa Vui v Sua Rimoni Ah Chong [2006] 1, Petaia v Pau [2007] WSSC 1, Moefaauo Lufilufi v Alaiasa Filipo Schwartz Hunt [2011] WSSC 1
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TAULAMAGO SIONE of Leauvaa
ITUAU ENELE of Leauvaa
FAATAUUU MALAUTEA of Leauvaa
TEVAGA SAMILOLO of Samalaeulu
VA VEA of Samalaeulu
Informant

A N D

TUALA IOSEFO PONIFASIO, male of Malifa
Defendant

Counsel:
R Drake for informants
T R Faaiuaso for the defendant

Decision 31 August 2017

DECISION OF JUDGE ATOA SAAGA

BACKGROUND

1. The official results for the 2016 general elections for Gagaemauga No 1.was publically notified by the Acting Electoral Commissioner on 11^th March 2016. The Defendant was an unsuccessful candidate.
2. These proceedings were filed by way of a private prosecution on the 18^th March 2016 by six named Informants against the Defendant pursuant to Section 96(2), (3) and 4 of the Electoral Act 1963. The Informants are Taulamago Sione,Ituau Enele, Faatauu Malautea, Tevaga Samilolo, Va Vea and Felagolagomai Tino. There were nine (9) charges of bribery against the Defendant. Two informations were filed against the Defendant by Informants Taulamago Sione, VaVea and Felagolagomai Tino.
3. Two (2) of the charges filed by Felagolagomai Tino were withdrawn on the Informant’s Application during the proceedings. These charges were dismissed.
4. It has been the contention of the Defendant that the informations filed against the Defendant were filed on behalf of the successful candidate Sala Pinati and his Committee. The Court is only concerned with what is before the Court and that is whether the charges filed by the respective Informants can be proven against the Defendant.
5. The seven (7) remaining charges for bribery for the consideration of the court are:
   1. On the 25^th February 2016 at Malifa, the Defendant Tuala did give $200 to each of Taualiipago Nimo and Tauatama, Seu Vasega and Taulamago Sione and $100 to each of Pesa, Malino, Simone, Falanisisi, Savelio, Amato and Kalolo for the purpose of inducing them to vote for the Defendant and thereby committed the offence of bribery.
   2. On the 2^nd March 2016 at Vaitele, the Defendant in the presence of eighty (80) electors handed to his committee members Tevaga Junior and TevagaTafa money from which various amounts of $100.00, $50.00, $40.00 and $30.00 were handed to the electors for the purpose of inducing them to vote for the Defendant and thereby committed the offence of bribery.
   100. On 22^nd February 2016 at Leauvaa, the Defendant did give $100 for the purpose of inducing ItuauEnele to vote for him and thereby committed the offence of bribery.
   4. On the 2^nd week of February 2016, the Defendant offered and promised to arrange a loan to complete our Seventh Day Adventist Church building at Leauvaa as well as arrange for a group of fruit pickers from our aforesaid Church to travel to New Zealand for the purpose of inducing members of our Church present to vote for the Defendant and thereby committed the offence of bribery.
   5. On or about 2 March 2016, the Defendant at a gathering of the village called by him, the Defendant announced and promised:
      1. He would provide school resources to improve all schools.
      2. He would ensure that compensation will be paid to landowners whose lands would be taken for the construction of a bridge in the village;
      3. He would pay for the airfare of twenty (20) people listed to go to New Zealand for apple picking.
      4. He would arrange for a lawn moving contractor to be established in Samalaeulu and thereby provide employment for the young people in the village
      5. For the purpose of inducing electors present to vote for the Defendant thereby committing the offence of bribery.
6. On 24^th February 2016, the Defendant by and through his agent Vaifale Motoi did give VaVea $50.00 for the purpose of inducing her to vote for the Defendant and thereby committed the offence of bribery.
7. On or around the last week of January 2016, the Defendant by and through his agent Vaifale Faasalafa gave VaVea $50.00 for the purpose of inducing her to vote for the Defendant and thereby committed the offence of bribery.
8. Twenty-four (24) witnesses were called by both the Prosecution and the Defence in respect of the seven remaining Informations
9. The burden of proving each of the allegations lies on the petitioner and the required standard of proof is beyond reasonable doubt. I need to be satisfied beyond reasonable doubt not only that a corrupt act was committed but also that the Defendant had a corrupt intention in committing the act.
10. I remind myself also that this is a private prosecution against the Defendant for charges laid of bribery and corruption and not an election petition. Election petition matters however do provide assistance in the interpretation of Section 96(2)(3) and (4).

Preliminary Matters

11. Defence has raised that except for Information D 1521/16, all Information were not served on 18^th March 2016 except for the Summons. Similarly, no witness statements were made available until August 2016 five months later. The Defendant submits that the Defendant was not properly informed of the actual allegations against him and it undermines the entire credibility of the case for the prosecution.
12. Section 15 of the Criminal Procedure Act 2016 stipulates that when an information is laid, a summons may be issued by either a Judge, Faamasino Fesoasoani or the Registrar. This summons should require the person to appear, the time and place of the Court proceeding and the particulars of the person and the offence.
13. Further, section 46 of the Criminal Procedure Act 2016 requires the Prosecution to disclose to the Court and to the Defendant within a reasonable time before the trial copies of all statements made by the witnesses proposed to be called and by the Defendant whether given orally or in writing and to the defendants a list of any of the Defendants previous convictions that are known to the prosecutor.
14. The summons did contain sufficient particulars for the Defendant to enter a plea. This matter has also been adjourned several times before a hearing date was set for the 12^th September 2016. The adjournments prior to 12^th September 2016 allowed the Defendant to leave the jurisdiction and subsequently to file a motion to quash the charges. The Defendant did not file a motion to quash the charges.
15. The hearing also did not proceed on 12^th September on an application by the Defendant for a further adjournment until 12^th December 2016. On the 12^th December 2016, Senior District Court Judge Roma declared a conflict of interest and the hearing was further adjourned to February 2017. The matter did not proceed in February 2017 either on an application filed by the Defendant. A final adjournment was set down by the Court in March 2017. In February 2017, Mr Teo was engaged as Counsel for the Defendant.
16. In my view, the Defendant had a reasonable opportunity from September 2016 to March 2017 to consider and prepare his defence. The Defendant also is a qualified lawyer by profession and therefore has the knowledge and experience to answer these charges filed against him.

RELEVANT LAW

Bribery, Corruption, Intention and Burden of Proof

17. The relevant parts of Section 96 are as follows:
    1. Every person is guilty of a corrupt practice who commits the offence of bribery.
    2. A person commits the offence of bribery who, directly or indirectly by himself or herself of by another person on his or her behalf:
       6. gives any money or procures an office to or for a voter, or to or for any other person on behalf of a voter, or to or for any other person, in order to induce a voter to vote or refrain from voting or
       7. corruptly does any such act as aforesaid on account of a voter having voted or refrained from voting
       8. makes any such gift or procurement as aforesaid to or for a person in order to induce that person to procure or endeavour to procure the return of a person at an election or the vote of a voter-,
       9. or who, upon or in consequences of any such gift or procurement as aforesaid, procures or engages, promises, or endeavours to procure, the return of a person at an election or the vote of a voter.
18. For the purposes of this section
    1. References to giving money shall include references to giving, lending, agreeing to give or lend, offering, promising or promising to procure or endeavor to procure, any money or valuable consideration.
19. Pursuant to Section 103 of the Electoral Act 1963, a prosecution against a person for a corrupt practice shall be commenced within 7 days after the day on which the Commissioner has publicly notified the result of the poll. The Official results were made available on the 11^th March 2017 and the informations were filed on 18^th March 2016 which was within the time frame set out under Section 103 of the Electoral Act 1963.
20. Both parties rely solely on the case of Re Territorial Constituency of AleipataItupa I Lalo Election Petition, TautoloituaFaraniPosala v PaepaeKapeliSua [2006] WSSC 29. I wish to refer to relevant parts of this decision to the current proceedings stipulated at page 6-7,

“In Rogers on Election (20^th Ed) at page 265, the author wrote: -

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

21. And shortly afterwards he wrote: -

“There can be no corrupt practice without a corrupt intention.”

“Bribery can be committed in many ways as is apparent from Section 96 subsections 3.4.5.7 and 8 where these matters are set out. The most important and essential element in the offence of bribery is proof of the corrupt intention of the person charged with committing the offence.We do not propose to set out here the lengthy list of circumstances and ways in which a person commits the offence of bribery (see ss 96(3)(4)(5)(7) and 8.”

“For a bribery prosecution to succeed, the prosecution must be able to prove beyond reasonable doubt that the act of the accused person or the act of any person on his behalf was done with a corrupt intention. If the prosecutor fails to prove this beyond reasonable doubt the accused person will be found not guilty. An intention can never prove as a fact; it can only be inferred from the facts proven beyond reasonable doubt. In each of the charges of bribery, which we are considering it is the prosecution who bears the burden of proof and who, if it is to prove the respondent guilty, has to prove beyond reasonable doubt that the accused person had a corrupt intention at the time he allegedly bribed the person named in the particular charge. In the Hereford Case (1869) 20 L.T 405, it was held that, “corruptly” means given with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting.”

22. Similarly at page 7-8 of the decision,

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

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

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

23. Further down at page 8,

“We note also the Heresford Case (1869) 21 LT 117 which decided that “ corruptly’ means given with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting. Where the act is accompanied by more than one intention, it will be for the Court to decide whether or not the prosecution has proven beyond reasonable doubt that the intention of the person allegedly bribery or treating (as the case may be) was to influence the result of the election or to influence the votes of the individual voters.”

24. Similarly Sapolu CJ stipulated Mulitalo Sealiimalietoa Siafausa Vui v Sua Rimoni Ah Chong [2006] 1 at page 3,

‘I accept that in order to ascertain a person intention one has to look at what he said and what he did in the circumstances of what took place. It is not physically possible to look into a person’s mind to see what he was thinking at the time when he gave out money or valuable consideration to an elector or voter. So one looks at what he said and what he did and infer from that as a fact what his intention was at the time of the giving. Sometimes the impression given by what a person said may be inconsistent with what he did. It will be for the Court to decide which of the two conveys the person’s true intention. Often in this context, actions speak louder than words.”

EVIDENCE

Information D861/16

25. The particulars of the Information is that on the 25^th February 2016 at Malifa, the Defendant Tuala did give $200 to Taualiipago Nimo and Tauatama, Seu Vasega and Taulamago Sione and $100 to each of Pesa, Malino, Simone, Falanisisi, Savelio, Amato and Kalolo for the purpose of inducing them to vote for the Defendant and thereby committed the offence of bribery.
26. The Prosecution called 4 witnesses. The Informant, Malaka Faatauu, Malino Simone and Falanisisi Paoloa. The Defendant elected to give evidence and the Defence also called Faauma Ah Chong, Ituau Talavini, Lupematasila Paulo, Tevaga Kiuga, Taualiipano Nimo, Seu Vasega and Tauatama Poni.
27. All the witnesses testified that on the 25^th February 2016, a meeting was held at Malifa at the Defendant’s hotel. Whilst the Defendant stated that the meeting was held on the advice of Tauliipano Nimo for all the Committee members of Salago to meet to discuss the upcoming election, Prosecution witnesses denied that they were there as Committee Members. Suffice to say however that all of them that attended the meeting with the exception of the Defendant were all from Salago. The Informant attended the meeting on the request of the Defendant whilst the other Defendants came with Faauma Ah Chong and Taualiipano Nimo who are members of the Defendant’s committee.
28. The Informant was picked up by Tevaga Junior whilst the other Prosecution witnesses came in the same taxi. The meeting was held at around 3pm in the afternoon and Taulamago was the last person to arrive and he walked in when the meeting had already started and sat in front next to the Defendant.
29. At the meeting, the Defendant discussed proposed developments for the schools, employment opportunities for the youth and opportunities to take some youth to New Zealand on an apple picking contract. There is a dispute as to the number of people that the Defendant proposed to take to New Zealand on an apple picking contract. At least, there was a consensus between two of the Prosecution and Defence witnesses that the Defendant had said that he will arrange for 40 people to travel to New Zealand on an apple picking contract in the month of July 2016. The Defendant strongly denied that he had specifically mentioned that he had taken people previously and would be making arrangements to take more youth on an apple picking contract.
30. After the meeting, the Defendant gave Taulamago and each of the matais Tauatama Poni, Seu Vasega and Taualiipano Nimo $200.00 each. The Defendant also gave money to Taualiipano Nimo of which Taualiipano distributed $100.00 to each of the taulealea present Pesa Sulu Talavini, Falanisisi Paola, Savelio Vasega, Amato Tauatama, Kalolo Faasele Usumagu, Malaka Faatauu, Faauma Amosa and Malino Sione, the Informant’s son.
31. The Defendant does not dispute the actus reus of giving money. The Defendant however disputes that he had a corrupt intention in giving the money to the Informant and to all the recipients as it was his belief that the Informant and all the people that were present were all working members of his Committee from Salago. His Committee included Taulamago, Malaka, Malino and Falanisisi Paola. The money was also given for his committee members’ expenses to assist with telephone credit, transport and for food to assist with their duties as Committee members. The Defendant could not recall how much money he had given for distribution except that it was money that he had budgeted for. Tauliipano denied that he knew how much money he had received from Tuala except that he distributed it according to how he saw fit and that he gave a higher sum of $200.00 to the matais and $100.00 for the taulealea.
32. Giving money to the Committee members has been discussed by the Electoral Court in Petaia v Pau [2007] WSSC 1 and Moefauuo Lufilufi v Alaiasa Filipo Schwartz Hunt [2011] WSSC 1. In Petaia v Pau (Supra) at page 12 the Court stated that,

“We disagree with suggestions by counsel for the petitioner that members of the campaign committee cannot be bribed or inducement of their votes is necessary, as they have already shown their support for the petitioner by voluntarily becoming members of the campaign committee. In fact, if we find that the payment of $20 or more at the conclusions of the committee meetings was partly for the purpose of securing or maintaining the support of the committee members, then a conclusion of a corrupt motive is appropriate.”

33. Similarly in Lufilufi v Hunt (Supra) at page 15, the Court stated,

“We are also of the view that the admitted payments made by the petitioner and his wife to committee members were neither justified, required or appropriate and cannot be construed as anything other than a means of bribing their committee members if not to give the petitioner their vote, then to stay the course and retain their support.”

34. In both these cases, the Court closely examined the evidence of the witnesses in determining whether the funds that were paid to Committee members were justified, appropriate and required.
35. I am convinced that Taulamago, Malaka, Malino, Falanisi Paola and Tauatama Poni are not part of the Working Committee for the Defendant. This was the first meeting in which all of them had attended with the exception of the Informant who had met the Defendant, Talavini and Faauma at his residence at Levi sometimes in December 2015 or January 2016. According to the Defendant, Talavini and Faauma Ah Chong, the Informant had assured Tuala of his support at this earlier meeting at Levi. Taulamago does not deny that he did say some words to that effect at the earlier meeting at his residence. He referred however to his comments as “tala sala kua” words to appease the Defendant and that he had said to the Defendant to leave the matter to him to decide whether his family will support him or not.
36. The Defendant testified after that meeting at Levi and following his presence at Malifa and subsequently at Vaitele, he was assured that Taulamago was part of his Committee. Taulamago’s brother Lupematasila Paulo also gave evidence that he had prepared a list of all their family members at the instruction of Taulamago after the meeting that Taulamago attended at Malifa.
37. I am convinced after hearing the Informant and all the evidence that Taulamago is not a Committee member and that whilst he may have given his assurance to the Defendant that he was supporting him, he had other ulterior motives which became apparent on the night before the election. The meeting of the 25^th February 2016 was the first meeting that Taulamago attended and whilst the Defendant refers to a secret alliance and direct communications between them, I am not persuaded that the Informant was a Committee member and that the Defendant whilst he might have believed that the Informant was supporting him was fully aware that he was not part of his Working Committee. Even the preparation of the list by Lupematasila is not proof that Taualamago was a Committee member. That list was prepared after Taulamago had attended the meeting at Malifa on 25^th February 2016 which was only a few days before the election. If he was to call a toonai, the toonai would have to be held on 29^th February 2017 the last Sunday before the election. There were more than 50 people of Taulamago’s family. The preparation of the list by Lupematasila which was by leaving his child’s exercise book with each of their family and asking them to list all of the people in the family who were eligible to vote is the most disorganized and unconvincing way of enlisting voters. Taulamago vehemently denies also that he had instructed the preparation of the list and also the calling of a toonai.
38. Similarly, it was the week before election. Tevaga Kiuga gave evidence that the Committee members were meeting often even prior to the meeting of 25^th February 2016 and that as it was getting closer to the election they were meeting every day. Tauliipano also gave evidence that even before the meeting he was already performing his duties as a Committee member given his close family relationship with the Defendant. At this meeting, the personal manifesto of the Defendant was made known to all present after which funds were distributed. There were no discussions nor presentations from each of the participants as to their work they have been doing for the election campaigns. The forum was more conducive for supporters rather than Committee members and none of the Prosecution witnesses including Tauatama Poni testified of any of the work of the Committee that they had been doing prior to the meeting.
39. I may also add that whilst the Prosecution witnesses were forthcoming with their evidence with the exception of Malino Sione who was very nervous, their evidence was consistent throughout. I found the evidence however of the Defence witnesses namely Faauma Ah Chong, SeuVaega and Tauatama Poni unconvincing and evasive. I might also add that whilst it was very hot in the room, Faauma Ah Chong was extremely nervous and was sweating profusely and barely coherent and audible when giving evidence. He had a tendency also of looking towards the row of chairs on his far right before he answers any of the questions put to him.
40. Similarly, the participants at the meeting who gave evidence for both the Prosecution and the Defence had different interpretations of the purpose of the funds given to them. Taulamago said the funds was for transport costs (pasese), Malaka and Falanisisi said it was for sugar and food, Faauma Ah Chong, Tauliipano and Tauatama Poni said it was for credit, food, cigarettes and transports costs.
41. In my assessment, the money that was paid by the Defendant to both non Committee members and the Committee members was not justified nor required. The main purpose was to induce the non Committee members to support and vote for the Defendant and for the Committee members it was for the purpose of maintaining their support.
42. I am satisfied beyond reasonable doubt that the Defendant had a corrupt motive and that he is guilty for giving money to Taulamago Sione, TauatamaPoni, Seu Vasega and Taualiipano Nimo of $200.00 each and $100.00 to Pesa Sulu Talavini, Falanisisi Paola, SavelioVasega, Amato Tauatama, Kalolo Faasele Usumagu, Malaka Faatauu, Faauma Amosa and Malino Sione.

Information 869/16

43. That on 2^nd March 2016 at Vaitele, the Defendant in the presence of about 80 electors handed to committee members Tevaga Junior and TevagaTafa money from which various amounts of $100, $50, $40 and $30 were handed to the electors for the purpose of inducing them to vote for the Defendant.
44. The Prosecution called 3 witnesses Taulamago Sione the informant, his son Malino Simone and Falanisisi Paola. The Defendant elected to give evidence and the Defence also called Tevaga Junior, Lefano Fereti and Vaifale Faasalafa.
45. At Vaitele at around 2 to 2.30pm the Informant attended a meeting at Vaitele. At this meeting, he saw his son Malino Simone and also Falanisisi Paola. The meeting started at 4pm when the Defendant arrived from Savaii. It was conducted in a large warehouse where there were about 65 people. The Defendant sat in front of the meeting with his some of his Committee members. The Defendant gave a speech which was more along the lines of what he spoke of at Malifa. At the end of his speech, the Defendant gave money to Tevaga Junior for distribution. The Defendant testified that he had no intention of giving out any funds that day until Tevaga Junior requested that he provide the Committee members with funds for credit in which case he obliged by giving Vaifale remaining funds that was in his briefcase from his trip to Savaii. He was not sure as to how much money was in his briefcase nor was he aware of how much was distributed to the participants of the meeting. Suffice to say that 65 people who attended the meeting which included the Informant, his son Malino and Falanisisi all received money. The Informant, his son and Falanisis are not committee members.
46. There is a dispute as to how much Taulamago received. Taulamago claims that he received $100.00 whilst both Tevaga Kiuga and Lefono Fereti testified that Taulamago was a matai of lower ranking than the other matais so he only received o $50.00. From my hearing of the evidence of both of these witnesses, there is obviously discontentment and resentment towards Taulamago which was conveyed through their continuous emphasis on the lower ranking of Taulamago. There is no denial however that Taulamago received funds and that the 65 people who recorded their names in the red book which was tendered as evidence for the Defence, all received funds in varied amounts depending on whether they are matais or non matais.
47. I do not accept that the Defendant had no idea of how much money was distributed neither do I believe that Tevaga Kiuga distributed the funds without having some idea of how the funds were to be distributed. Tevaga Kiuga had petitioned the Defendant the day before which would have allowed the Defendant to calculate how much funds to be distributed and to communicate also and discuss with Tevaga Kiuga how much was to be distributed. It would have been different if Tevaga Kiuga in the presence of all the people during the meeting, petitioned the Defendant then in which case, it would be plausible to find that the distribution of funds was a genuine attempt to provide the people present with funds for their credit.
48. The meeting also was held on 2^nd March 2016 which was two days away from the election. I wish to refer to Sapolu CJ decision in Re Election Petition Aleipata (Itupa I Lalo) Territorial Constiuency, TafuaKalolo v LetiuTamatoa [1970-1979] WSLR 247 where he referred to what Nicholson CJ said at page 249,

“I refer to Parker’s Power Duties and Liabilities of an Election Agent and Returning Officer and Parliamentary Elections in England and Wales, 6^thEdn at page 288. Now, it is obvious that in England and Wales there would be no parallel situation with that pertaining to elections in Western Samoa when the question of compliance with the Faa-Samoa arises. But the learned author comments in relation to the question of charitable gifts made by a sitting member as follows: -

“The imminence of the election may have a considerable effect upon the decision whether or not a particular act of charity amounts to bribery. Thus it was said that a charitable design may be objectionable so long as no election is in prospect yet, if circumstances alter and an election becomes imminent the candidate if he then goes on with that design will do so at the risk of being guilty of bribery.”

49. In 4^th Edition Halsbury Volume 15 para 744,

“The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bribery. A charitable design may be unobjectionable so long as no election is in prospect but if an election becomes imminent the danger of the gift being regarded as a bribery is increased.”

50. I am satisfied beyond reasonable doubt that the Defendant in the presence of about 80 electors handed to committee members Tevaga Junior and TevagaTafa money from which various amounts of $100, $50, $40 and $30 were handed to the electors for the purpose of inducing them to vote for the Defendant.

Information D862/16

51. I, ItuauEnele, of Leauvaa says on oath that I have reasonable cause to suspect and do suspect that on 22^nd February 2016 at Leauvaa, the Defendant did give $100 for the purpose of inducing me to vote for him and thereby committed the offence of bribery.
52. The prosecution called the Informant as the Prosecution’s sole witness. The Defence elected to give evidence. The Defence also called Vaifale Loua.
53. The Defendant and Vaifale Loua had visited the Informant at his home in February 2016. Vaifale Loua had explained the purpose of their visit. The Informant in response advised both the Defendant and Vaifale Loua that he was a supporter of Sala Pinati. The Defendant then continued an informal conversation with the Informant. I am inclined to accept the Defendant’s version of what was discussed. The Informant had advised the Defendant and Vaifale that he worked at Silva Transport but that he also had a pawpaw plantation and that he supplied the Amanaki hotel. That information could only be known to the Defendant if the Informant had shared that information openly. I do not accept that that the Defendant simply offered to buy a basket of pawpaw that was lying there. I am inclined to accept also that the Informant had called out to his son to bring out a basket of pawpaw and to put it in a bin and that this Bin of pawpaw was carried out by the Informant’s son and was put at the back of the Defendant’s car which was witnessed by Vaifale Loua. I do not accept however that the Defendant only gave $50.00. I am convinced that the Informant was correct in the denominations that he received of five notes of $20.00 which is a total of $100.00. The Defendant also said to the Informant, that the money was for the pawpaw and not a campaign. The value of the pawpaw was $70.00.
54. Before departing, the Defendant asked the Informant to deliver some more pawpaw to his hotel. The Informant delivered a basket of pawpaw to the Defendant the Saturday after. There were 17 pawpaw in the basket. The Informant testified that he received $100.00. This amount was denied by the Defendant. He testified he only gave the Defendant $50.00.
55. Corroboration of the evidence of an accomplice is required and that although the court can convict on the basis of an uncorroborated evidence of an accomplice, it would be dangerous to do so. Davies v DPP [1954] 1 All ER 507. The Court however in Vaili v Salesa [1996] 1 stated at page 6,

“Latai Tomasi on her own evidence must be considered as an accomplice. In considering her evidence, which was not corroborated by the testimony of any other witness, I bear in mind the warning that it can be dangerous to act on the uncorroborated testimony of an accomplice. However, there is nothing to prevent the Court from acting on such testimony if it is satisfied of the truth of the testimony and provided it bears in mind the warning I have just referred to.”

56. The buying of the pawpaw could be inferred as a business transaction between the Defendant and the Informant. The Defendant however was at the Informant’ place to seek his support for the upcoming election. Whilst he could have been joking or making a point when he said to him that the money that he was giving him was for the price of the pawpaw and not for the elections, the money was given for goods that he did count nor examine so the exchange could not be considered as a normal business transaction. Similarly, the Defendant did not ask the Informant as to the price of the pawpaw which is decided not only on the quantity but the quality or the size of the pawpaw. Rather he just gave the money to the Informant. I am satisfied that the Defendant gave $100 to the Defendant on both occasions and it was for the purpose of inducing him to vote for him.

Information D1521/16

57. I Faatauu Malauteea of Leauvaa say on oath that I have reasonable cause to suspect and do suspect that at Malifa in or about the 2^nd week of February 2016, the Defendant offered and promised to arrange a loan to complete the Seventh Day Adventist Church building at Leauvaa as well as arrange for a group of fruit pickers from our aforesaid Church to travel to New Zealand for the purpose of inducing members of our Church present to vote for the Defendant and thereby committed the offence of bribery.
58. The Prosecution only called the Informant Faatauu Malautea as its sole witness. Defendant elected to give evidence. Defendant also called Motoa Uesile, Samata Ioane and Vaifale Faasalafa.
59. On the second week of February 2016 on a Wednesday evening, the Defendant visited and inspected the Seventh Day Adventist Church building which remains incomplete to date. The only person that he met during that visit was the Informant who accompanied him during this inspection. There was also a subsequent meeting held at Malifa at the Defendant’s hotel between the Defendant and four members of the Seventh Day Adventist Church from Leauvaa who are leaders of the Church. The delegation included the Informant, Motoa Uesile, Samata Ioane and Muliaga Kopa.Defence also referred to a fifth person Misikei who was present at the meeting. Both Motoa and Samata Ioane gave evidence for the Defence.
60. The Prosecution alleges that the Defendant had informed the Informant after the church inspection that he was going to assist with the completion of the Church Building whether he is successful with the election or not. Secondly at the subsequent meeting, he promised the Church representatives that he will arrange for a loan which is to be paid by him and his wife and guaranteed by the Church members to assist with the completion of the Church Building. He also offered to arrange for 20 people from the Seventh Adventist Church to travel to New Zealand on an apple picking contract to assist with the payment of the loan.
61. Further, after elections and after the filing of the information, Faatuuu was approached by Motoa to sign a paper prepared by Motoa to withdraw the information that he had filed against the Defendant. Motoa is the Informant’s nephew. When Faatauuu insisted that the paper be referred to the Village Council or the Committee as alluded to by Motoa, Motoa left with the paper and did not pursue the matter further with the Informant. Motoa advised the Court that the reason why he had wanted the matter to be withdrawn is because it will adversely affect the reputation of the Church because of the way in which they had sought funds for the completion of the Church. The same concern was raised by the Defendant. He was concerned for his wife who was a member of the Seventh Day Adventist Church.
62. The Defendant not only denied that he had arranged for the meeting with the Church representatives but vehemently denied that he had offered to arrange and pay for a loan with his wife and guaranteed by the Church to complete the church building. The Defendant also insisted that he had only given the Church representatives ideas as to how they can apply for a loan with Bluebird so that they can obtain some building materials to complete their project. The loan however was to be paid by them and not by the Defendant and his wife. It was also an idea presented by the Defendant to send a team overseas on a fruit picking contract to assist with the repayment of the loan.
63. Motoa and Samata also corroborated the Defendant’s evidence that they had voluntarily sought an audience with the Defendant to seek his assistance for funds to complete their church building. The Defendant, Motoa and Samata said that the amount Motoa asked for was $160,000. Motoa, Samata and Vaifale testified that after Tuala was informed of the amount he became upset. Vaifale said that Tuala left the meeting and that he had to console him to return. According to Motoa, Samata and Vaifale the meeting ended immediately after this. The Church leaders were served with fish and chips. After eating, they left in a vehicle arranged by the Defendant.
64. In assessing what evidence I should accept, I had to consider with caution the acceptance of the uncorroborated evidence of the Informant. I also had to consider that the Defence witnesses Motoa and Samata were also present at the meeting and gave a different account of what had been discussed.
65. There were also some inconsistencies in the statement of the Informant in terms of the time in which the meeting was held and the food that they were served. The rest of the witnesses including the Defendant all testified that the meeting was held at around 6pm and after the meeting they were all served with fish and chips.
66. Notwithstanding the eloquent and articulate deliverance by the Defendant of his evidence, I was not convinced that it was not at the Defendant’s request that the meeting with the Church representatives was held. It is too much of a coincidence that the meeting between Tuala and the representatives of the Church was held a week after Tuala had inspected the church building.
67. The church building has been in construction for more than 2 years. According to Samata, it has probably been 4 years prior that they had started the project. Two weeks into February 2016 however, the Defendant appears for a brief inspection after he had dropped two members of the Seventh Day Adventist Church who he represents. The Defendant admitted that he knew that there were a large number of Seventh Day Adventist members on the electoral roll.
68. There is no any evidence produced by Defence of any earlier meetings or request from the Church for Tuala’s assistance prior to this visit. It only came after Tuala inspected the premises with Faatauuu. He was also seen leaving by Motoa and Samata. There was no reason for them to seek the assistance of the Defendant for help to complete their project just because he had inspected the church building and was seen leaving the site.
69. Whilst Motoa and Samata maintained that they were there to see Tuala on their own accord, I find their evidence unimpressive and unconvincing. Firstly, only Motoa mentioned a ballpark figure of $160,000. He was not able to justify how he came up with that amount including the costs of labor. Secondly, I do not accept that an earlier inspection by Tuala of the Church building or his candidacy prompted them to seek him for funds for a project that has been dormant for more than two years. Most of the matters that were also discussed were suggested by Tuala rather than presented to Tuala as they were supposedly the visitors who had requested the meeting. If the visit was initiated because of his candidacy, then there should have been a visit to the other candidates. If it is because of the Defendant’s wife membership with the church, there should have been a visit prior to the candidacy as she was a member of the Church even before he declared his candidacy. However, there is no such evidence before the Court.
70. Notwithstanding there was a discussion as to a loan and a suggestion was made by the Defendant for the Church to arrange and guarantee a loan at Bluebird. I do not accept that the Defendant would have offered to take up a loan that he will repay with his wife and guaranteed by the Church. The amount of $160,000 is a large sum and a huge undertaking. Rather, I accept that the Defendant offered to arrange for the Church to take up a loan with Bluebird but that he will arrange for 20 people to travel to New Zealand on a fruit picking contract to assist with the repayment of the loan.
71. I wish to refer to excerpts of Motoa and Samata’s testimony
72. At page 242

Pros - ma ilea aso lea na tou feiloai ai I malifa, e sa ona talanoa atu foi Tuala e ave le au piki lea e te taua I Niusila e fesoasoani mai I le totogiina o se loan, lea na e taua le au piki faatasi faapea e tasi lea auala e totogi ai se loan, pe a le au piki I Niu Sila, sao lena o lau mau na fai muamua.

Wit - ou te leiloa o le tali lea o le fesili, o le auala na fai e Tuala, e totogi a e le Ekalesia le latou loan.

Pros - Faapea e ave pe 20 ni tagata laa ave I Niusila mo lea faamoemoe.

Wit - Ia e sao.

73. Also at page 249

DC - O lea na taua e Faatauu e faapea, sa saunoa Tuala na te faia se loan, ae guarantee e le Ekalesia,

Wit - o auala ae lei saunoa mai Tuala na te faia se loan.

DC - Ia sei le a tonu le auala lea na e taua, sei faamanino mai le auala.

Wit - O auala na faailoa mai, o mea tau loan I kamupani ae o a le ekalesia e fai le latou loan ma guarantee e latou ao auala na sa fesoasoani mai ai.

DC - Na taua se igoao se Kamupani

Wit - O le bluepeti.

DC - Na iai ma seisi auala na talanoaaiTuala

Wit - Ia na talanoa mai foiTuala I le aupiki.

DC - O lea sana tala I lea tulaga

Wi - e mafai na sailia auala ai le Ekalesia I se aupiki I se seleni e fesoasoaniai le galuega.

74. At page 255

Pros - Sa saunoa maiTuala e mafai on ave se tou au piki I Niusila e galulue ma fesoasoani mai I le totogiina o le tou loan

Wit - Sa saunoa maiTuala I auala foi ia e mafai na saili tupe ai le Ekalesia, e uiga I au piki e mafai na o e piki e sailiag aiiai le Ekalesia o le sailiga o le seleni.

Pros - E faafefea na o tagata o le Ekalesia I le aupiki

Wit - E leai e sailiaga i I o, aua e le natia, o Tuala e faauluuluiai le au piki.

Pros - ia o le uiga o laufesili, na faapea mai tuala e mafai naia saili ni avanoa e o ai se tou aupiki e galulue I Niusila e fesoasoanimai I le totogiina o le loan.

Wit - Ia

75. The Defendant was part of the RSE scheme prior to the declaration of his candidacy. He is the local counterpart of the overseas companies who were in Samoa to arrange for seasonal workers to work in New Zealand. The Defendant painstakingly took the court through the whole process to show that he does not make the decision. However, it is the Prosecution submission that his public role entails that he has the authority and the influence to arrange for groups of people to travel to New Zealand on an apple picking contract and that the Defendant has used his involvement to induce people to vote for him.
76. I am satisfied that the Defendant offered to take people of the Seventh Day Church to New Zealand on a seasonal contract to assist in the payment of the loan and that the sole purpose why he proposed that was to induce the people to vote for him. Whilst I am not satisfied that he offered to take up a loan himself to be repaid by him and his wife, I am convinced that he had offered to arrange for a loan to be repaid and guaranteed by the Church members with Bluebird.
77. I, Tevaga Samilolo of Samalaeulu, Savaii on oath that I have reasonable cause to suspect and do suspect that at Samalaeulu, Savaii on or about 2^nd March 2016 the Defendant at a gathering of the village called by him announced and promised:
    1. He would provide school resources to improve all the schools.
    2. He would ensure that the compensation will be paid to landowners whose lands would be taken for the construction of the bridge in the village
    100. He would pay for the airfares of the twenty (20) people listed to go to New Zealand for apple picking
    4. He would arrange a lawn mowing contract to be established at Samalaeulu and thereby provide employment for the young people in the village
    5. For the purpose of inducing electors present to vote for the Defendant thereby commiting the offence of bribery.
78. The Prosecution called 3 witnesses. The Informant, Aleki Vaiutu and VaVea. The Defendant elected to give evidence. The Defence also called Vaifale Motoi and Vaifale Faasalafa. Vaifale Motoi was disqualified as a witness when it was discovered that he had been in the court house throughout the Defendant’s evidence and only left a few minutes before he finished his testimony.
79. The Informant and the Prosecution witnesses gave evidence that the Defendant had announced and promised that he would provide school resources to improve all the schools. He would also ensure that compensation will be paid to landowners whose lands would be taken for the construction of the bridge in the village. Further, he would arrange to take twenty people to New Zealand whether he was successful or not. He would also establish a lawn mowing contract within Samalaeulu to provide employment for the youth of Samalaeulu.
80. Va Vea said that the Defendant had offered to be the Head of the School Committee and had offered to buy computers for the schools. It was her view that the reason why he had offered to establish a lawn mowing contract was to entice the youth of Samalaeulu to vote for him. After listening and hearing her evidence, I found this part of her evidence as her own personal view of what she had heard rather than what the Defendant had said.
81. Aleki Vaiuta gave evidence that he was a staunch supporter of Sala Pinati until his son was selected as a seasonal worker. His son left for New Zealand two weeks after election. He said around the second week of February 2016, Vaifale Motoi came to his house with the list and told him that his son’s application was successful. He also told him the full list of everyone who was successful. Vaifale Motoi was allowed to give evidence but only in respect of his visit to the witness’ house. He denied that he had read the list of everyone who was eligible. He also denied that the list was read out at a meeting. Vaifale and the Defendant confirmed that Vaifale had picked up the list from the Defendant from Malifa.