Fesili v Leota [2001] WSSC 37 (16 August 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963

AND

IN THE MATTER concerning the election of a member of Parliament for the territorial constituency of Siumu

BETWEEN

MASIASOMUA POFITU FESILI
of Motootua, candidate for election
Petitioner

AND

TU'U'U ANASII LEOTA
of Siumu, a candidate for election
Respondent

Coram: Vaai J,
Nelson J

Counsel: KM Sapolu for petitioner
TRS Toailoa for respondent

Hearing: 03, 04, 05, 06 & 10 July 2001
Judgment: 16 August 2001

JUDGMENT OF THE COURT

Following the general elections held on Friday, 02 March 2001, the Chief Returning Officer declared the following to be the official result for the territorial constituency of Siumu:

Masiasomua Pofitu Fesili - 464

Tapusalaia Faatonu - 95

Tupuola Sola Siaosi - 428

Tuuu Anasii Leota - 642

No. of formal votes - 1,629

Votes rejected as informal - 11

The respondent Tuuu Anasii Leota was accordingly declared the elected representative for the territorial constituency of Siumu.

The petitioner who polled the second highest number of votes has filed a petition seeking to invalidate the respondent's election pursuant to section 112 of the Electoral Act 1963 (hereinafter referred to as "the Act"). That section provides as follows:

112. Avoidance of election of candidate guilty of corrupt practice - Where a candidate who has been elected at any election is proved at the trial of an election petition to have been guilty of any corrupt practice at the election, his election shall be void.

The corrupt practices alleged by the petitioner to have been committed by the respondent are that:

(a) on the 10th February 2001, at about 10.00pm at Siumu, the respondent's wife Ata Leota, gave $60 cash to Falanita Togia, an elector, in the presence of the respondent, such conduct amounting to the corrupt practice of bribery under section 96(3)(a) of the Act in that the giving of the $60 was for the purpose of inducing Falanita Togia to vote for the respondent; and

(b) on the 10th February 2001, at about 10.00pm at Siumu, the respondent's wife, Ata Leota, gave $30 cash to Losa Leifi, an elector, in the presence of the respondent, such conduct also amounting to the corrupt practice of bribery under section 96(3)(a) of the Act in that the giving of the $30 was for the purpose of inducing Losa Leifi to vote for the respondent.

Initially, there was a third corrupt practice allegation made but during the course of the hearing, this was withdrawn by counsel for the petitioner and it is therefore no longer relevant to these proceedings.

The onus and burden of proving these allegations of corrupt practices is of course on the petitioner for it is he who brings the petition and the standard of proof is the criminal standard of proof beyond a reasonable doubt. This is well established law but if authority is needed, see Re election petition for Safata territorial constituency, Pule Lameko v Muliagatele Vena [1970-1979] WSLR at the bottom of page 241 as recently reaffirmed in an unreported judgment of the Electoral Court dated 10 May 2001 in Re election petition for the territorial constituency of Sagaga-le-Usoga, Muagututagata Peter Ah Him v. Maulolo Tavita Amosa at page 4 of the judgment. We have borne these principles in mind, when evaluating the evidence of the witnesses in this matter, which evidence was given partly by way of sworn affidavit and partly by way of oral testimony.

In support of the first allegation of bribery of Falanita Togia, the petitioner called Falanita and her husband Iosefa Togia. Falanita's evidence is that at about l0pm on the evening of Saturday 10^th February 2001, a silver coloured van visited their house at Siumu. A female voice called out her husband's name but he was at that time taking a shower. Not surprisingly, Falanita walked to the main road where the van was parked to identify the female voice calling out her husband's name at l0pm at night. The van was parked in front of their house and was facing the Apia direction. Inside the van was the respondent who was driving and his wife Mrs. Ata Leota. Mrs Leota was seated on the passengers side which was the side nearest their house. She was able to see the respondent and his wife because a light was on in the front of the van. But she could not see who was in the back because the back of the vehicle was in darkness. She knows Mrs Leota because she is a member of the Siumu Womens Committee of which Mrs Leota has been president for a number of years.

When she got to the van, Ata asked if she was Falanita and after she replied yes, Ata gave her some money and said "avatu le tupe lena ae tautuana ma oulua le palota" (take this money and both of you, remember the elections). Her husband then arrived on the scene and when they returned to their house, the van was still parked on the road and they heard Ata call out to Losa Leifi who lives across the road from them to come. They continued to their house where they counted the money Ata gave them and found it totalled $60.

The evidence of Falanita's husband losefa Togia is that at about l0pm on the night of Saturday 10th February 2001, a blue almost light silver coloured van came to their house while he was taking a shower. He followed his wife to the vehicle and found her talking to Mrs Leota who was seated on the passengers side of the vehicle. The respondent was sitting at the steering wheel side of the van. He heard Mrs Leota say to his wife take this money to buy some food and for both of them to remember the elections. He saw Mrs Leota pass the money to his wife and they then returned to their house. He saw their neighbour who lives opposite them Losa Leifi on the main road and he heard Mrs Leota call out to her to come and get the money. When they got to their house, his wife counted the money and found it to be $60. The following day, Losa confirmed to him that she had received a bribe ("tupe faatosina") of $30.

Losa Leifi was also called by the petitioner because the second allegation of bribery relates specifically to her. Her evidence is that she was leaving her house to go to tafao at the house of her friends Falanita and losefa when she saw the respondent's van parked across the road infront of Falanita and losefa's house. She says Mrs Leota called out to her from the van. She went over and Mrs Leota gave her some money and said "tautuana ma a'u le paloka" (for me to remember the elections). She says she too knows Ata Leota because like Falanita, she is a member of the Siumu Womens Committee which has been presided over by Mrs Leota for many years. Her evidence is that the respondent was the driver of the van and that when she went home and counted the money, found that it was $30. She describes the vans colour as silver.

Various matters were put to these witnesses by counsel for the respondent in carrying out his usual searching and probing cross-examination. It was put to the witnesses that because Falanita's husband Iosefa Togia and the husband of Losa Leifi at the material times both worked for a member of the petitioner's election committee, that therefore Falanita, Iosefa and Losa were fabricating this whole story and that the respondent and his wife never visited them on the night of Saturday 10th February 2001. It was also put to the witnesses that they were biased in favour of the petitioner who they were supporting and who was related to at least one witness viz., Iosefa Togia. The evidence proposed to be called by the respondent contradicting the evidence of these three witnesses was also quite properly put to the witnesses and apart from one instance during the cross-examination of the witness Falanita, the three witnesses consistently denied they were fabricating evidence and continued to maintain that what they were telling the Court was the truth.

In reply to the evidence adduced by the petitioner, the respondent called as his first witness his wife Mrs Laulu Tuigaiata (or "Ata" as she appears to be more commonly called) Leota to testify. Her evidence is that on the night of Saturday 10th February 2001, the respondent and her were at Siumu attending a meeting of the respondent's election committee being held at her mothers residence situated in the aai of the village of Siumu. She says they arrived at her mothers at about 6pm that evening in a maroon 4-door Suzuki jeep registration number R015 rented from Apia Rentals Company Limited in Apia. Travelling with her and the respondent was one Tupuola Puni of Vaimea, a member of her husband's election committee. The meeting was scheduled to begin at 7.45pm but only started at 8.30pm. A number of committee members were in attendance and minutes of the meeting were kept by the committee secretary, Salevao Felisese. The meeting did not finish until round about 10.30pm. After the meeting and as per the usual custom of their committee, the members engaged in a social get together over light refreshments of Samoan cocoa and biscuits. It was after 11pm when the respondent, Tupuola Puni and her left this gathering and returned to Apia in their jeep. They did not visit any other places and in particular they did not stop at the houses of Falanita and losefa Togia or Losa Leifi. Mrs Leota denies knowing Falanita Togia and says that since she became president of the Siumu Womens Committee in March 1997, no one by that name has served on her 110-member committee. As for Losa Leifi, she participated in only two committee asiasiga and has not been seen since. She says she has never spoken to either of these women and has no real acquaintance with them. Similarly, she does not know Iosefa Togia and has never seen him before.

Mrs Leota in her evidence went to great pains to point out that at the end of every meeting of the respondent's election committee, it is always stressed by the respondent and her to the membership that bribery or "faatosina" is absolutely prohibited. The reason for that is because of the harsh lesson she learnt from the 1996 general elections when her mother lost her seat on an election petition involving bribery. This message was repeatedly conveyed because as she said in her evidence, "sa faamamafa i le komiti e sa le faatosina ona ua ou o'o iai i le 1996" which loosely translated means - she had been there, done that in 1996 and did not want history repeating itself. To a large extent this part of her evidence however is self-serving and irrelevant because the allegations of bribery being made by the petitioner are directed not at actions taken by the respondent's committee members, but at actions taken by her.

In relation to the evidence of Falanita and her husband and Losa Leifi, Mrs Leota was adamant that they were "made up stories" and were "lies". She says they never went near the houses of these witnesses and that after the committee meeting, their vehicle took the road straight back to Apia and did not turn right and travel two miles east towards Falealili where these witnesses reside. Neither counsel in these proceedings seems to attach any importance to who accompanied the respondent and his wife to the meeting at Siumu on 10th February 2001. His evidence is that on Saturday 10th February 2001, he travelled with the respondent and Ata Leota to their committee meeting at Siumu. They arrived at about 6pm but the meeting only commenced at 8.30pm. It concluded at about 10.30pm and he confirms that minutes of their committee meetings are kept by the committee secretary and that those minutes would show the start and finish times of each meeting. He confirms Mrs Leota's evidence that towards the end of the meeting, the couple asked committee members to avoid any form of bribery including giving gifts in any form whatsoever. He also confirms that after the meeting there was a social gathering of the committee and that this broke up about 11pm and he left with the respondent and his wife. He says they drove non-stop straight back to Apia and dropped him off at his home at Vaimea at about 11.30pm.

He says he does not know Losa Leifi but he knows Falanita and losefa because Falanita used to live together with one of his relations. He appears to know where Falanita and Iosefa reside because of his evidence that their house "is quite a long way away heading towards the Falealili direction" from the place where the committee were meeting. He says their vehicle never visited the couples house and that it never stopped for anyone or for any reason after leaving the committee meeting. Crucial to the respondent's case is this witness's evidence that the vehicle he travelled in with the respondent and his wife was a 4-door maroon Suzuki jeep.

Initially, Tupuola Puni filed an affidavit in these proceedings stating something quite different at paragraph 6 thereof. There he says the vehicle being used on the night in question was "the respondent's van". Subsequently, he filed a further affidavit changing that evidence and stating that the vehicle involved was not a van but a maroon 4-door Suzuki jeep. This evidence he confirmed to the Court in his evidence-in-chief. Quite naturally, petitioner's counsel vigorously cross-examined the witness on this change in his evidence. The witness's explanation was that he did not tell the lawyer who prepared his initial affidavit what type of vehicle was used, but only told him that they were travelling "in a vehicle". He also says when his initial affidavit was read to him not only by the lawyer that prepared it, but also by the Deputy Registrar of the Court before being sworn, he did not correct this mistake. Subsequently however, he swore and filed a further affidavit dated 04th April 2001 making the change.

We note that this is not the only so called "mistake" made by this witness in relation to his affidavit evidence because the witness's subsequent affidavit of 04th April 2001 in paragraph 2 thereof initially stated that their vehicle never stopped at Falanita and losefa's house and that the "petitioner's wife" never gave out any money. This too is a rather obvious error as the petitioner's wife is not at all involved in the alleged giving out of money, yet this witness swore and filed his affidavit of 04th April 2001 in that form. Only when the witness gave his evidence-in-chief did he correct this mistake and change it from "petitioner's wife" to "respondent's wife". The error in relation to the van is therefore not the only mistake made by this witness in his affidavit evidence.

The other witness called by the respondent in support of Mrs Leota's testimony was Salevao Faleolo Felisese, the secretary of the respondent's election committee. His evidence is much the same as Tupupola Puni's, viz. that he attended the committee meeting of Saturday 10th February 2001, that the respondent, his wife and Tupuola Puni arrived from Apia at about 6.30pm, that the meeting did not begin until 8.30pm and that it lasted till 10.30pm. As secretary, he keeps minutes of all committee meetings and he produced for inspection by the Court the committee minute book. He also produced the minutes of the Saturday 10th February 2001 meeting and this confirms the evidence of the respondent's witnesses that the meeting began at 8.30pm and concluded at around 10.30pm. He also confirms the post meeting socialising by the committee which broke up about past 11 pm.

Like Tupuola Puni, this witness's original affidavit states at paragraph 9 that the vehicle used by the respondent and his party was a van. This witness also filed a subsequent affidavit dated 04th April 2001 changing this from van to a maroon 4-door Suzuki jeep. The 04^th April 2001 affidavit also says that the respondent and his wife were previously using a rental van but this had been returned to the rental company because of mechanical problems. He confirmed his change of evidence in his evidence-in-chief and explained that the change was brought about after counsel for the respondent suggested he reconsider the question of what vehicle was used by the respondent and his party on the night in question. He says he gave the matter further thought and this resulted in the change of his affidavit evidence. He says that probably the word "van" was read out to him before he swore and signed his original affidavit but he cannot recall paying any particular attention to this aspect. But following reconsideration of the matter, he concluded his original affidavit was wrong and hence his supplementary affidavit dated 04^th April 2001.

In cross-examination, this witness conceded that his instructions to the lawyer that prepared his original affidavit was that the respondent and his wife drove back to Apia in a van. The affidavit however was not read to him by the lawyer after it was prepared but it was read to him by the Court Deputy Registrar before execution. At that time, he genuinely believed the couple were in a van because the respondent and his wife had on previous occasions used a van to attend committee meetings. That van was light blue almost silvery in colour and was used by the couple during their campaign in the months of December and January. He steadfastly denies that the change in his evidence was influenced and/or suggested by either Mrs Leota or counsel for the respondent. He also denies knowing or being told that the affidavits of the witnesses for the petitioner indicated the respondent and his wife were travelling by van on the night in question. Under rigorous questioning by counsel for the petitioner, he maintained his change of mind was bought about only because he re-read the whole of his original affidavit and after giving it some deep thought, he realised his mistake.

In an attempt to clarify the issue of whether or not the respondent and his wife were using rental van R023 on the Saturday night in question, the respondent called two further witnesses, being employees of Apia Rentals Company Limited the company from whom the respondent and his wife rented their vehicles during the period of the respondent's campaign. The first witness was Mrs Nicola Schmidt the reservations supervisor for the company. Her evidence is that during the periods 06th December 2000 to 05th January 2001 and 18th January 2001 to 24th January 2001, Mrs Ata Leota rented from them a right blue Toyota 15-seater van registration no. R023. The dates confirming these rental periods were originally contained on an Apia Rentals invoice headed "Rental Agreement" and numbered no.3679. On invoice 3679 however are many other notations and references to what appears to be other rental vehicles of the company.

It took much time to comprehensively elicit but Mrs Schmidt eventually makes it clear in her evidence that these other notations were made by her and they referred to various other dates upon which Mrs Leota hired other company vehicles, these being R038 (a white 2-door Suzuki jeep), R015 (the maroon 4-door Suzuki jeep) and R001 (a Suzuki samurai described by the witness as the company's service car - i.e. a car that is temporarily used by a customer while the customers hired vehicle undergoes routine mechanical servicing). She says she recorded all Ata Leota's transactions on invoice 3679 but ultimately it became, as it was inevitably bound to become, too much of an illegible "scribble" and "too messy" so she cancelled this invoice and issued replacement invoices for each of Mrs Leota's vehicles. For the van R023 the replacement invoice was invoice 3815 covering both the 06th December 2000 to 05th January 2001 and 18th January 2001 to 24th January 2001 hire periods; and for the Suzuki jeep R015, the replacement invoice was invoice 3820 covering the whole of the 29th January 2001 to 21st February 2001 hire period. No replacement invoices were produced to the Court for R038 and R001 but those rental vehicles are for present purposes largely irrelevant. She says she issued the replacement invoices sometime in February 2001, probably on or about 21st February 2001 when Mrs Leota paid off the balance owing under invoice 3815, this being the date noted on the bottom right hand corner of invoice 3815.

It is clear from this evidence that Mrs Schmidt's testimony is van R023 is not recorded as being hired out to either the respondent or his wife as at Saturday 10th February 2001. What is recorded is the hire by Mrs Leota of the maroon 4-door jeep R015 for the whole of the 29th January 2001 to 21st February 2001 period, which period includes the night of Saturday 10th February 2001. The witness's further evidence is that the van was returned on 05th January 2001 and released again on hire to Mrs Leota from 18th January 2001 until 24th January 2001. The next time the van was hired by the respondent and his wife was from 25th February 2001 until the 03rd March 2001 as evidenced by invoice no. 3852. Her evidence is that it was impossible for the respondent and his wife to have had the van on 10th February 2001 because the van was at that time in the company's garage undergoing repairs and painting. She says everyone in the rental company knew of the "bad condition" of the van. She was however unable to produce any documents to support this part of her evidence.

In cross-examination, various discrepancies between her evidence and her documentation were put to the witness. For example, invoice 3679 shows under "date out" the 06th December 2000 and under "date in", the 21st February 2001 but does not show to which of the three vehicles covered by invoice 3679 those dates refer. The dates could refer to the van R023 or to either of the Suzuki jeeps R015 and R038 hired by the respondent's wife. The witness's explanation was that "date out" referred to the van and "date in" referred to the maroon Suzuki R015.This certainly is not apparent from just looking at the "date out" and "date in" notations. There are also clear inconsistencies on the face of invoice 3679 itself: thus, in respect of the van, the hire periods of 06th December 2000 to 05th January 2001 and 18th January 2001 to 24th January 2001 which amount to a total hire period of approximately five weeks do not correlate to the six weeks rent charged by the company and noted on the right side of invoice 3679. This "mis-calculation" was admitted to by the witness in her testimony. Such mis-calculations are not surprising given that the witness was using one invoice to keep track of at least three separate vehicles rented out on different dates and at different rates of hire to the same person. The witness makes the understatement of the year when she describes her invoice 3679 as messy. She maintains that for this reason she cancelled invoice 3679 and issued replacement invoices. She says that she originally included R023, R038 and R015 on another replacement invoice, viz. invoice no. 3815, but that Mrs Leota complained that she could not understand the invoice and so her rental company manager Mrs Leilani Tanya Ott who was present at the time suggested she issue separate replacement invoices for each vehicle. She denies that these changes were done at the specific request of her regular customer Mrs Leota. She also explains for reasons however that are not made clear in her evidence that there is no cross reference or indeed any reference at all from the cancelled invoice to the replacement invoices so that no-one looking at the cancelled invoice would know that there were subsequent replacement invoices issued.

When questioned as to the insurance implications of having a number of different vehicles rented out on different dates under the one rental agreement, the witness appears to think there are no potentially adverse consequences and that she can rely on an invoice such as invoice 3679 if any of the vehicles thereon are involved in an accident. It is clear to us however from her evidence that the documentary system she used was very confusing and had potentially hazardous consequences for the rental company to say the least. The witness steadfastly denies doctoring or tampering with the company's documents in order to assist Mrs Leota in this case. She says she has co-operated with requests by both Mrs Leota and the petitioners wife to provide copies of these documents thereby suggesting she is impartial and that she is telling the truth. She admits she is related by marriage to Mrs Leota but says she did not realise this until the day before her testimony in these proceedings. She says this notwithstanding her concession in cross-examination that invoice 3679, which was not attached to her original affidavit filed in this matter, was only produced by her the day before she testified. Her explanation is that she "honestly forgot" about the document. If that is so, the witness's system was so confusing that it even confused her. She paints for the Court a picture that lies somewhere between incompetence and falsehood without being either.

The second rental company witness called by the respondent was Mrs Tanya Ott, who took over as manager for the company in January 2001. Her evidence is that she is quite familiar with the van R023 and that early in 2001, the van was panelbeated and painted. She does not recall exactly when this work was carried out but surmises from certain company records that the work was carried out during early to mid-February 2001. These records were produced to the Court and they consist of the following:

the petty cash record for 1st to 12th February 2001 showing a purchase on 3rd February 2001 of sandpaper from Gold Star Co. Ltd. The record is marked as being "sandpaper for R023". The receipt from Gold Star evidencing a cash payment for this purchase was also produced.

a payment voucher dated 10th February 2001 for paints and other materials ,purchased from Goldstar Co. Ltd. The voucher is marked "paints etc. for R023". The accompanying receipt for payment from Gold Star was also produced. This shows payment was made by cheque and was for paint and other associated materials. A copy of the relevant rental company cheque butt was also produced.

the maintenance record card for R023 kept by the rental company office detailing materials purchased for R023 during January and February 2001. The record is headed "Toyota Hiace van blue R023" and according to Mrs Ott, the details thereon are compiled from their purchase orders, petty cash receipts and payment vouchers. It is clear from the document itself that originally, the card was a maintenance record card for R023 as it records during the year 2000 the various mechanical works by way of maintenance undertaken in respect of the vehicle. However, as from January 2001 and as confirmed by Mrs Ott in her evidence, this record was changed to reflect only the parts and materials used in respect of R023 and their cost, as opposed to the mechanical and maintenance works carried out on the vehicle.

the card reflects two matters of note: firstly it suggests a set of brake pads was purchased on 26 January 2001 and the accompanying purchase order marked "brake pads for R023" was produced; and secondly, it purportedly records purchases over the 3rd February 2001 to 14th February 2001 period of materials used in panelbeating and painting work. The accompanying purchase orders for almost all of these purchases were also produced and these were all marked as being purchases from various suppliers "for R023".

The remainder of Mrs Ott's evidence-in-chief deals with the production of a number of rental invoices all numbered around invoice 3814 and 3815 as well as those dated around the same time as those invoices. Mrs Ott also confirms Mrs Schmidt's evidence that she instructed Mrs. Schmidt to cancel the "messy" invoice and issue replacement invoices for each vehicle. In cross-examination, Mrs Ott also confirms that the proper procedure where a customer hires different cars on different dates is for there to be separate invoices for each vehicle. Especially for insurance purposes.

The focus of the case at this juncture had shifted squarely on to whether or not the van R023, alleged to have been used by the respondent and his party on the night of Saturday 10th February 2001, was on the road on the night in question or was off the road being panelbeated and painted by its owner Apia Rentals Co. Ltd. Mrs Ott's evidence suggests the latter and accordingly, petitioner's counsel mounted a strong challenge in cross-examination of the witness's evidence. It was put to Mrs Ott that panelbeating and painting was not required because there was no evidence the vehicle was damaged to the extent that such work was necessary. The only evidence there was showed that the vehicles brakes required repair and that the vehicle had broken down and required towing. The witness admits she did not inspect the van and that she had only been told it had been damaged. She also concedes that nowhere in the documentation produced to the Court is there a statement as to the nature or extent of such damage. When asked why the respondent and his wife were not charged with the repair costs of such damage, Mrs Ott's reply was "I don't know". This is despite her admission that one of the conditions of hire of their company's vehicles is that the customer must pay for any damage he or she causes. What she does say in the course of her cross-examination is that before she issued the cheque for payment of the paints and other materials on 10th February 2001, she inquired of the company mechanic what the paints were for and she was advised it was for R023 "which needed painting".

In relation to the company records she produced, Mrs Ott accepts that there are a few unexplained alterations to the documents, which she says are "corrections", but denies the records were tampered with or have been orchestrated for the purposes of this petition or in order to assist the evidence of her co-worker Mrs Schmidt. She accepts the record card for R023 has anomalies in that the date for each supposed purchase is not recorded chronologically but says this is because the entries on the card are from a number of different sources. The witness also appears to accept the card is not kept up to date and that entries are sometimes only posted up to three weeks after the event. The witness also had difficulty explaining the necessity of some of the purchases recorded on the card such as why a new oil filter was required on 13th December 2000 when one had according to the card been installed two months earlier on 13th October 2000, and before that, six months earlier on 17th April 2000. It seems to us, the witness was not qualified or in a position to give evidence on the technical aspects of R023. But we note her insistence that these company records show that rental van R023 was on Saturday 10th February 2001 undergoing painting and/or other repairs.

We have found it necessary to examine the evidence adduced in this petition with great caution and care because there are a number of clear and irreconcilable differences between the evidence given by the petitioner's witnesses and the evidence given by the respondent's witnesses. This is so not only in relation to the issue of the use or non-use of the rental van R023, but applies also to many other aspects of the evidence. The perception that the van R023 is the pivotal issue is an illusion. The van is only one issue among many and is of no greater significance than the other facets of the case. We have observed the demeanour of the witnesses as they gave their evidence on the various issues and have assessed their honesty and reliability. The evidence of the witnesses for both sides to this petition we found far from convincing. In our view, the evidence of the petitioner's witnesses as well as the respondent's witnesses fails to address certain crucial and fundamental matters upon which hinged their very credit worthiness.

In relation to the petitioner's witnesses, first and foremost among these is the manner in which all three of the petitioner's witnesses unhesitatingly and without any measure of uncertainty recall the date and time of the respondent's visit to their places of residence. They are unanimous in recalling that this visit occurred on Saturday, 10th February 2001. There is no deviation by any of the three witnesses on this aspect and yet no reason is given or even hinted at why the date of Saturday 10th February 2001, occurring about three weeks prior to the general elections, would leave such a monumental imprint in their memories. It is of course important to the petitioner's case that the date of the alleged bribery be Saturday 10th February 2001 and not some other day of that week because Saturday 10th February 2001 is when the respondent attended the meeting of his election committee held at Siumu.

The witnesses are equally immovable on the time of the visit as occurring at about 10pm that Saturday night. In the case of Iosefa Togia, he is sure of the time because of his radio. On this aspect, his evidence says "ae faasalalau mai loa ua to tonu le sefulu ae o lo'o to le taavale i luma o lo'u fale" (my radio said it was exactly 10 o'clock and the vehicle was parked infront of my house). This in fact suggests the respondent's van arrived infront of Iosefa's house before l0 pm. We are mindful that this is the same Iosefa who worked together with the husband of the witness Losa Leifi for Faalogo Eti, a member of the petitioner's election committee, and is the same Iosefa who admitted being related to the petitioner through his mother, admitted to meetings with the petitioner where family matters were discussed, and who during a mid-afternoon adjournment while he was giving evidence admitted he sat beside the petitioner and was told by the petitioner "se'i manuia le mea lenei, matou feiloa'i" (when this matter is successful, we will meet).

Iosefa's evidence is clearly that by 10pm on the night in question, the respondent's van was parked infront of his house. Equally clear however is the record of the meeting of the respondent's election committee that their meeting did not close until 10.30pm and that the committee members including the respondent did not disperse till 11pm after Samoan cocoa and other refreshments. There is no cogent evidence or for that matter, any evidence at all that this or any part of the committee's minutes were fabricated for the purposes of this petition and it obviously would be ridiculous to suggest that on the night of Saturday 10th February 2001, the closing time noted in the minutes was fabricated for the purposes of a petition arising from an election that had then not yet occurred.

Iosefa's wife Falanita also testifies that the respondent's van arrived at about 10pm that night but she does not go into detail as to why she believes it was that hour. The witness that did go into detail on the hour was the couple's neighbour Losa Leifi who says she knew it was 10pm because she was wearing a watch and when she heard Mrs Leota's voice calling to her, she looked at her watch. This witness however does not assist Iosefa's evidence because when asked a number of times in court by cross-examining counsel to tell the time on the court clock, she could not do so with any degree of accuracy.

There are other areas of the testimonies of the petitioner's witnesses that cause us concern. We propose to refer to only the following major ones:

(i) the counting of the alleged bribe money for Iosefa and Falanita - Falanita's evidence is clear. She says "ma o lea o maua i le ma fale sa ma tatala le tupe ma faapea ona ma faitaua le tupe e $60, e fa ta'i $10 ma le $20 e tasi" (we went to our house we opened the money and we counted it and it was $60, four $10 notes and one $20 note). In other words, the counting of the money was carried out jointly by Falanita and her husband Iosefa. If that is indeed what occurred, then the evidence of both the husband and the wife should be similar if not exactly the same. However, this is not the case. Iosefa says his wife and not the two of them counted the money. Furthermore, he says originally that the money was all in $20 denominations and then subsequently he says there were two $20 notes and two $10 notes.

(ii) the husband and wife's evidence also differ on another significant issue, viz. the statements allegedly made by Mrs Leota when handing out the bribe. Falanita's evidence is Ata said to her "avatu le tupe lena ae tautuana ma oulua le palota" (take this money and both of you remember the elections). She went on to say she took the money and then her husband arrived on the scene. Contrast this with Iosefa's evidence which is that Ata told his wife "avatu le tupe lea e faatau ai sa tou meaai ae tautuana ma oulua le palota" (take this money to buy some food and both of you remember the elections). His evidence is clearly that he heard the words being spoken by Ata Leota to his wife. Yet what he heard is different to what his wife says she heard. It is also the wife's evidence that Iosefa was not even present when Ata made the statement and handed over the bribe.

(iii) all three of the petitioner's witnesses testify as to the "silver/blue almost light silver" colour of the respondent's van. But it is clear from the witness's evidence that there are no street lights in the vicinity of the front of Iosefa and Falanita's house where the van was parked and that the only light in the immediate area was coming from the front of the van itself. There was no clarification whether these were from the vans exterior or interior lights. Neither did the witnesses say that these lights were the vans headlights. If these were in fact the vans headlights, one would reasonably expect that the witnesses would have said so but they did not. It seems therefore more likely the light in question was an interior front light which is consistent with the witness's evidence of identification of the front seat van occupants as Mr and Mrs Leota. However, if this is correct, then we have difficulty accepting that given such limited lighting, the witnesses can definitively testify as to the colour of the van. We are more inclined to the view that the best the witnesses could see was whether or not the van was light or dark in colour. We do not believe their identification can extend to the "silver/blue almost light silver" category, given also that silver is a most difficult shade to discern at night, especially outside of direct lighting. The inference we are more drawn to is that the witnesses saw the respondent and his wife actively campaigning in the district in their rental van R023 and they regarded that as a safe choice of vehicle to place the respondent and his wife inside.

(iv) we referred earlier in our judgment to neither counsel attaching much weight to the uncontested evidence that the homes of the witnesses for the petitioner are located two miles east of the Siumu - Tiavi intersection, and that in order for the respondent's party to reach these houses, the van needed to take a rather substantial detour before it could return to Apia. The point goes further than this because the petitioner's witnesses all say the van was parked on the inland side of the main road infront of Iosefa and Falanita's house and was facing the Apia direction. If that is so then in addition to the four mile round-trip detour, the van would have had to travel eastwards towards Falealili, go past the houses of the petitioners witnesses, do a U-turn and head back in a westerly direction towards Siumu and Apia, before pulling over and parking infront of Iosefa and Falanita's house, in order for it to end up facing westwards towards Apia. Such a journey would require a very specific aim and purpose, namely the targeting of the petitioner's witnesses. We fail to see any reason or motivation for such targeting anywhere in the evidence either for the petitioner or the respondent. The petitioner's witnesses were given an opportunity by cross-examining counsel to address this question, albeit not in the terms we outline above. Their failure to do so is a matter we have not overlooked.

(iv) the other important issue we have considered is one that also escaped counsel. It concerns the alleged positioning of the van. The witnesses for the petitioner all consistently state the van was in front of Iosefa and Falanita's house on the inland side and that the respondent's wife Ata Leota was seated on the side of the vehicle nearest to Iosefa and Falanita's house, i.e. she was seated on the inland side of the van. It is also common ground that Losa Leifi's house is on the opposite side of the road, i.e. the seaward side. The person nearest Losa's house would therefore have to be the respondent who was driving the van. Losa Leifi's, evidence is that it was Ata Leota who gave her the money and not the respondent. If that is true then either Losa walked across the front of the van and went to its inland side in order to receive the money from the respondent's wife, or alternatively the money was passed by the respondent's wife across the front of the respondent's body to Losa standing on the seaward side or drivers side of the van. Any such evidence is conspicuously absent from Losa's testimony. These are not mental gymnastics and there is no question in our minds that in order for the respondent's wife to have passed the bribe money to Losa, one of these two scenarios had to occur. There is no suggestion anywhere in Losa's evidence that this is how it happened, but these are the only ways it could have happened. The irresistible inference to be drawn is that Losa Leifi was less than truthful in her evidence.

The witnesses called by the respondent in this matter fare no better than the petitioner's witnesses. The respondent's case revolves around the testimony of his wife that after the committee meeting on the night of Saturday 10th February 2001 and following socialising refreshments, the respondent and his party departed Siumu about 11pm and returned in a non-stop journey to Apia. The vehicle they used was not the rental van R023 because this was in the rental company's garage being panelbeated and painted. Instead they were travelling in another Apia Rentals vehicle, the maroon 4-door Suzuki jeep R015. Mrs Leota's evidence is supported by testimony from Salevao Felisese the secretary of the committee, by the evidence of Tupuola Puni a supposed passenger in R015 and the testimony of Mrs Nicola Schmidt and Mrs Leilani Ott of Apia Rentals. We do not propose to deal with the evidence of these witnesses in any further depth other than to say:

(i) the respondent's wife by her continual insistence more than once in her evidence that she signed the original rental agreement for R023, on 06th December 2000 has perjured herself. It is crystal clear from Nicola Schmidt's evidence that the original agreement of 06th December 2000 for R023 is the cancelled invoice 3679 issued on 06th December 2000 and that invoice was signed by the respondent. The evidence of any witness who lies on oath must be regarded with great circumspection to say the least and Mrs Leota's intransigence in her testimony did nothing to enhance her demeanour.

(ii) the credibility of the witnesses Salevao Felisese and Tupuola Puni is severely undermined by their own original affidavits filed in these proceedings which say the respondent and his wife were using a van on 10th February 2001. Neither witness struck us as illiterate or uneducated given their respective backgrounds and we are amazed they could make such a basic mistake; more so in the case of Salevao Felisese who admitted he owned a Suzuki jeep and who can therefore be presumed to be readily familiar with the difference between a jeep and a 15-seater van. We also note the witnesses are even in conflict in their respective evidences concerning the rear seat of the jeep. Tupuola says it has two single seats like the front while Salevao says it was one long rear seat. As it turns out from the evidence of the rental company employees, Salevao is correct and Tupuola is not.

(iii) the evidence of the rental company employees show the records of the rental car company to be a shambles. The evidence by no means establishes to our satisfaction that the van R023 was indeed being panelbeated and/or painted as at Saturday 10th February 2001. Although we do accept that it would be a silly company indeed which expended funds on purchase of panelbeating and painting materials unless these were intended for such use. To this extent, the documentary evidence adduced did strongly suggest R023 was at some stage in early February 2001 the subject of a panel and paint job.

We have carefully reviewed and sifted through the morass of evidence produced in this petition. As can be seen from our Comments, we have found the evidence from both sides to be most unsatisfactory and inconclusive. But the onus is not on the respondent to prove that he was at a meeting of his committee at Siumu on Saturday 10th February 2001, or that he travelled to and from Siumu in a jeep or any other vehicle. As stated at the outset, the onus and burden of proving an allegation legally and quite properly lies on the party that makes the allegation. In this case, it lies with the petitioner and at no time does this legal onus and burden shift to the respondent. The evidential pendulum may swing back and forth but the legal onus never wavers from the side of the petitioner. And the standard required of the petitioner is the onerous one of proof beyond a reasonable doubt.

The difficulties we have attempted to outline concerning the petitioner's case when considered individually do not raise a reasonable doubt in our minds. But when they are considered collectively and are viewed against the totality of the evidence in this matter, we are left in reasonable doubt and in accordance with the aforementioned principles of law, the respondent is to be given the benefit of such reasonable doubt. Accordingly we find that the petitioner has not proven the allegations of bribery made in his petition to the required standard and the petition is therefore dismissed. As costs follow the event, costs of $500 are to be paid by the petitioner.

The Court will report its findings to the Honourable Speaker.

Solicitors:
Sapolu Lussick Law Firm for Petitioner
Toailoa & Associates for Respondent