Kini v Aiafi [2006] WSSC 44 (10 August 2006)

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IN THE MATTER: of the Territorial Constituency of Faleata-i-Sisifo Election Petition

LEALAILEPULE RIMONI AIAFI
of Vaitele, a candidate for election.
First Respondent

Counsel: G Latu for the Petitioner
T R S To'ailoa and R Papali’i for the First Respondent
P Chang and A Lesa for the Second Respondent

Hearing: 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25 July 2006
Judgment: 10 August 2006

At the 2006 General Election for the Legislative Assembly of Samoa, an election for a Member of Parliament for the territorial constituency of Faleata Sisifo was held. The petitioner and first respondent were both candidates in that election. The poll was held on 31 March 2006. On 13 April 2006 the second respondent caused the following results of the poll to be published in the Samoa Gazette:

Ale Vena Ale	545
Lealailepule Rimoni Aiafi	795
Panoa Easter Ah Kuoi	255
Seiulu Saoaumaga Lino	129
Ulu Vaomalo Ulu Kini	630
Ulugia Aukuso Ulugia	98
Total valid votes	2452 -------
Informal Votes	11

On 13 April 2006 the second respondent declared and reported the first respondent as being duly elected. The petitioner has challenged the declaration in accordance with the Electoral Act 1963 ("the Act"), s104. The petitioner alleges bribery and treating (paras 5 - 6) and electoral irregularity (paras 7 - 10).

(a) that he should be declared and reported as duly elected for the territorial constituency of Faleata Sisifo; or

(b) that the first respondent was not duly elected and his election was void and so a new election should be ordered.

There is only one path to a grant of order (a), namely, that the election of the first respondent should be voided because he is guilty of corrupt practices contrary to the Act, ss96 and 97, and that the petitioner survived any equivalent challenge made in accordance with the Act, s111(6). Any finding, of a lesser import, of illegal practice or activity (ss99A, 102) would not result in disqualification (s112).

Here the first respondent gave notice, through a document entitled "Cross-Petition" which as a matter of law is but a notice of intention to give and adduce evidence under the Act, s111(6) which, if accepted, would require the disqualification of the petitioner. In doing so the first respondent was acting in accordance with the dictates of natural justice and procedural fairness as required by the Constitution Articles 4 and 9. The respective parties have filed affidavits in support of their respective causes. Concurrently all parties, including the second respondent filed affidavits relevant to the petition paras 7-10.

At trial, counsel for the first respondent advised the Court that no evidence would be led as permitted by the Act, s111(6): " ... to prove that the person (the Petitioner) was not duly elected, in the same manner as if he had presented a petition against the election of that person." Leave of the Court was not required for that course to be taken and we accept that it was an appropriate decision.

The first respondent then gave and adduced evidence on his trial on the allegations of corrupt practices.

A separate hearing in relation to the claims of electoral irregularity was held. While the hearing was concurrent with the trial it did not directly involve the first respondent. The Court refused leave for the petitioner to withdraw para 10 of the petition because of the general public interest in the problem of "double" voting and its statutory duty to inquire generally into electoral matters and if necessary report to the Parliament upon "any matters arising in the course of the trial an account of which in the judgment of the Court ought to be submitted to the Legislative Assembly" (s.120). In doing so we made clear to the first respondent that he was not at risk of disqualification by reason of the hearing but that, of course, he had an absolute right to test the case and call witnesses since a finding made on the "election irregularity" hearing, as distinct from the trial, could vitiate the election and, although extremely unlikely, because of the provisions of the Act, s116, result in the holding of a by-election.

The trial, the hearing and ss.119/120 inquiry continued concurrently. However the conduct of distinct hearings raises different issues of evidence. Evidence relevant to the trial of the first respondent is not necessarily relevant to the matter of electoral irregularity. Evidence of the conduct of electoral officers is not relevant to the trial of the first respondent unless he was involved in corrupt conduct in relation to the conduct of the electoral process. Some evidence might be common to both. Some evidence might not be relevant to either the trial of corruption or electoral irregularity but is confined to the Court's own inquiry into matters which might require a report to the Speaker under the Act, ss119, 120. As indicated in our ruling in this matter given on 11 July with reasons published on 17 July 2006, the basis for the reception or rejection of evidence depends on the nature of the matter (trial, hearing or inquiry) to which the evidence might relate.

Before we consider the application of the relevant legal principles to the facts of the case, it would in our view be helpful to state the various bases of the duties and procedures of the Election Court, comprising two or more judges of the Supreme Court of Samoa. Some of those duties and powers were referred to by this Court in Patea Satini Epati v Solamalemalo Keneti Sio and Electoral Commissioner [2006] WSSC 42. But a more detailed examination of the varying roles and duties of the Court is now necessary.

The right to present a petition is granted by the Act, s104, but is restricted to a person who comes within the province of the Act, s105. Procedures as to time for filing a petition (s.106), security for costs (s.107), rules of court (s.109), place of trial (s.110) and method of trial (ss.111 and 115) are also provided for. Where more than one petition is presented "relating to the same election or result", s.108 requires them all to be dealt with "as one petition".

The Election Court is required by the Act to fulfil a number of roles and functions. These include:

(1) Acting as a trial Court. The proceedings are criminal in nature and are commenced by a petition, a form akin to an indictment or complaint. To that extent the trial is a public matter, not private prosecution such as for example one for criminal libel. In that form it comprises elements of both private and public interest. The parties might attempt to resolve their private interests but the public interest is retained and protected by the requirements imposed by the Electoral Act 1963, ss119, 120 and ss127-130. The Election Court however cannot punish a person by fine or imprisonment as prescribed by the Act, s101 because separate proceedings ("any person charged with ...may be found guilty of that offence" and "a prosecution against any person of a corrupt practice or an illegal practice...") seem to be contemplated by ss102 and 103; see also s132.

(2) On the trial a respondent is a person in a similar position to an accused charged with criminal offences. He or she is subject to a verdict of personation (s95), bribery (s96), treating (s97), and undue influence (s98) and by virtue of the Act, s102, to an alternate conviction for illegal practices (ss99, 99A). He or she is subject to a verdict of personation (s.95), bribery (s.96), treating (s.97), undue influence (s.98), or a finding of committing illegal practices under ss.99 or 99A. There are sanctions which are consequent on an adverse finding which include disqualification as a Member of the Legislative Assembly present (s112) and future (s5(5)).

(3) Concurrent with the trial of the respondent in accordance with (1) and (2) above, the respondent is entitled by the Act, s111(6), where the relief sought is one "claiming the seat for some person" (usually the petitioner) to:

" ... give evidence to prove that person was not duly elected, in the same manner as if he had presented a petition against the election of that person".

The concurrent proceedings entitle the respondent to respond to the allegations made and to expose the petitioner (candidate) to a risk of his or her own disqualification. Thus there can be two concurrent trials, or their equivalent. The allegations against the original petitioner are usually referred to as a "cross-petition", although, as Sapolu CJ has previously observed in Ulu Vaomalo Ulu Kini v Lealailepule Rimoni Aiafi and Electoral Commissioner [2006] WSSC 25 (decision on a preliminary issue delivered on 16 May 2006) such is strictly speaking a misnomer. The position is made more complex by the requirement that the trial and counter-allegations be conducted by pleadings and affidavits (s109 – Rules of Court).

(i) Although leave of the Court is required for the withdrawal of a petition (ss127-130), no such leave is required by a respondent who, having filed a 'counter-petition' chooses at trial not to call the accusatory evidence, as permitted by s111(6).

(ii) The Court cannot require either the petitioner or the respondent to give or call evidence. If either elects to call no evidence the Election Court is bound by that course, although it is empowered to call witnesses on its own behalf (ss.111(4) and 122). It can also receive certain relevant evidence "before any proof has been given that any candidate was aware of or consenting to the corrupt or illegal practice" (s.111 (5)).

(4) A third task allotted to the Court is the determination of claims of electoral irregularities. In real terms it is a claim for remedy made through the Act, s116. The remedy sought is the setting aside of the election result which can only be granted if the petitioner can prove that the election should be declared invalid because of identified irregularities which satisfy the Court that the election was so conducted that the "failure, omission, irregularity, want, defect, absence, mistake or breach", singly or in combination, affected the result of the election. Any petitioner must prove to the requisite standard the negative. The presumption is that "no election shall be declared invalid by reason of ... if the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections and that the failure, ... did not affect the result of the election." The operation of the Act, s.116 was considered by this Court in Patea Satini Epati vs Solamalemalo Keneti Sio and Electoral Commissioner, [2006] WSSC 42.

Failure to establish a basis under the Act, s.116, must result in the dismissal of the petition. The Court is required to hear the evidence of the parties to the petition and the named respondent, the Electoral Commissioner, in the same form and manner as a trial. In most cases the claim for remedy and the grounds are set out in the same petition as that claiming disqualification of the elected member. Where the Court is satisfied that there have been electoral irregularities which do not establish the application of s.116, it ought report its findings to the Speaker of the House in any report made in accordance with ss.119, 120.

(5) To an extent, it can be said that the proceedings are a trial but not necessarily one of a criminal nature. For convenience we refer to this form of trial as a "hearing." The interest here is both private (as between candidates) and public (integrity and confidence in the electoral outcome). There are a number of possible bases for such questions or matters to be brought to the Election Court which include:

(a) Allegations made by either or both the petitioner or respondent, as part of their respective cases that the election was tainted by fraud or misconduct by a candidate and/or an election official. In such a circumstance the evidence is relevant to both the trial and the matter of electoral irregularity.

(b) The allegations, which might warrant the invalidation of an election within a particular candidacy, relate only to the conduct of the election (missing ballots, double voting and the like), or failure on the part of the officers of the Electoral Commissioner to properly observe the legal requirements for the conduct of the election. Such a hearing would be separate from the trial of the candidate or candidates, unless, of course, they were directly involved in the irregularity.

(6) In this case, there is but one petition. Paragraphs 5(a) and (b) and 6(b) and (c) (paras 5(c), 6(a) and 6(d) were not proceeded with by the petitioner at the outset and have been dismissed) allege corruption. While paragraphs 7-10 seek the remedy of invalidation of the election through the operation of s.116 and provide particulars of the irregularities said to warrant that declaration of invalidity.

(7) In some instances the Court might have a different responsibility to consider avoidance of an election on the basis of general corruption (s113). Parliament has afforded the Court with special powers (ss115(b), 122) to fulfil this function. That circumstance has not occurred in the hearing of this petition. Again, evidentiary issues might arise as to whether the evidence ought be received in the case of, or against a particular candidate. For an illustration of the exercise of this function of the Court, see Fao Avau v Vaai Kolone and Others unreported judgment 17 September 1982 Misc. 5979.

"119. Report of Court as to corrupt or illegal practices – (1) Where in an election petition any charge is made of any corrupt or illegal practice having been committed at the election, the Court shall, in addition to giving a certificate and at the same time, report in writing to the Speaker as follows –

(d) Whether there is reason to believe that corrupt or illegal practice have extensively prevailed at the election.

(4) If a candidate is reported to have been guilty by his agents of treating, undue influence, or any illegal practice, and the Court further reports -

The candidate shall not be treated for the purposes of this Act as having been proved guilty of the offences mentioned in the report."

In fulfilling its duty to the Legislative Assembly, the Court might be required to consider evidence not received in the trial or hearing but received by the Court at large and as part of its inquiry function, bearing in mind the powers granted by the Act, s115. Its mandate is extensive and it may by special report to the Speaker touch upon or address "any matters arising in the course of the trial, an account of which in the judgment of the court ought to be submitted to the Legislative Assembly" (s120).

It will be seen from the above that the Election Court has a variety of functions and duties. The Act requires the Court to deal with different but concurrent forms of trial (allegations of criminal conduct), hearing (claims of electoral irregularity) or inquiry, with differing considerations of evidence but all bearing the appropriate burden of proof. At the same time, the Court is to be guided ‘by the substantial merits and justice of the case without regard to legal forms or technicalities’ (s115(a)), it must afford procedural fairness (s119(2)) and make use of the power of a grant of indemnity to a witness in furtherance of the trial hearing or inquiry (s123).

This case is a good example of the conceptual basis of the legislation. The Court was engaged in three distinct but concurrent processes which in turn involved differing evidentiary questions and issues. Here the three levels of operation were:

(3) A general Court of inquiry afforded extensive powers including those of the calling of witnesses and examination and consideration of matters not raised by the parties to the proceedings (1) and (2) above.

The allegations of corrupt practices stated in the petition are for bribery and treating. Paragraph 5 of the petition states that the first respondent committed bribery by giving money to electors of the territorial constituency of Faleata Sisifo for the purpose of inducing the said electors to vote for him in the 2006 general election. Instances of such bribery are:

We have already dismissed particular 5(c) since there was no evidence adduced at trial in its support.

Paragraph 6 of the petition states that the first respondent committed treating by himself or alternatively by another person on his behalf by paying for bottles of beer given to electors for the purpose of corruptly influencing electors to vote for him in the 2006 general election. Instances of such treating are:

We have already dismissed particulars 6(a) and 6(d) since there was no evidence at trial in their support.

The evidence given by all the witnesses at trial consisted of affidavits, which formed the main parts of their evidence in chief and oral testimonies given during examination in chief, cross-examination and re-examination. In considering that evidence in relation to the remaining allegations of bribery and treating, we bear in mind that the onus of proof lies on the petitioner and the required standard of proof is one of beyond reasonable doubt. We proceed now to consider each of those allegations in turn.

To prove the allegation of bribery contained in paragraph 5(a) of the petition concerning the giving by the first respondent of $20 to the elector Uili Hall on election day for the purpose of inducing that elector to vote for him, the petitioner called three witnesses, namely, Uili Hall, Tafito Apisaloma and Ioane Ulugia Felise.

As the evidence shows, there was one polling booth for each village in the territorial constituency of Faleata Sisifo in the 2006 general election. The polling booth for the village of Vaitele, which comprises of the sub-villages of Vaitele-tai, Vaitele-uta and Vaitele-fou, was the house of the pastor of the Congregational Christian Church in Samoa (CCCS) at Vaitele-uta. According to the testimony of the witness Uili Hall, he decided to cast his vote on election day at the Vatele-uta booth instead of any of the booths in Toamua, Saina or Puipaa which were much nearer to his home at Toamua because barbecue was served at the Vaitele-uta booth. So just before 7:00am on election day, he left his home at Toamua and walked along the main road to go to Vaitele-uta. On his way, a car which was passing by gave him a lift at Toamua. He was dropped off at the first road at Vaitele-tai that goes inland past the Yazaki factory at Vaitele-tai when one is travelling on the main road from Faleolo Airport to Apia. He then continued walking along the main road for a short distance to the second road that goes inland past the Yazaki factory. He turned onto that road and walked inland. Uili Hall further testified that when he came by the Yazaki factory he stopped a white bus to go to the booth at Vaitele-uta. When the bus stopped at the booth the first respondent who was sitting in the seat behind the driver’s seat shook his hand as he was getting off the bus. The first respondent had in his hand a $20 note folded to the size of a square inch. Uili Hall took the money and left.

One of the two witnesses called by the petitioner in support of the testimony of Uili Hall is Ioane Ulugia Felise. According to the testimony of this witness, he went to the Vaitele-uta booth at about 1:00pm in the afternoon on election day to cast his vote. Whilst at the booth he saw the first respondent came in a green car and stopped alongside a white bus for about two or three minutes. He then saw the first respondent talking to the driver of the bus.

The other witness who was called by the petitioner in support of the testimony of Uili Hall is Tafito Apisaloma. According to the testimony of this witness, she was at the booth at Vaitele-uta at about 12 noon on election day to cast her vote. She said that while she was waiting at the booth she saw the first respondent in a white bus on the road. That bus was transporting people to cast their votes at the Vaitele-uta booth. Under cross-examination, this witness said that she and her husband who was a committee member for the petitioner in the last general election supported the candidacy of the petitioner. On election day she walked to the Vaitele-uta booth at about 12 noon to cast her vote. She said that there were many electors standing in the queues to go into the booth to cast their votes. She was standing in the second queue. She also said that whilst standing in the second queue she was facing south looking towards where the poll officials were sitting. In that position her back would have been towards the road where the white bus was which she said the first respondent was in when she saw him from the queue she was standing in. This road runs in front of the church building near the booth. This witness further said that she is not acquainted with the first respondent and there is no evidence that she had seen the first respondent at any time prior to election day. In re-examination she said that whilst standing in the queue to the booth she was looking at the front and also to the back.

The purpose of the evidence given by the witness Tafito Apisaloma that at about 12 noon on election day whilst she was standing in the second queue to the Vaitele-uta booth to go in to cast her vote she saw the first respondent in a white bus on the road in front of the church building next to the booth, is to support the evidence given by the witness Uili Hall that at around 7:00am on election day he stopped a white bus near the Yazaki factory and when he got off the bus at the Vaitele-uta booth, the first respondent who was sitting behind the driver gave him a $20 note. As it will appear in some detail later, the first respondent, supported by several witnesses, denied that he ever rode in a white bus on election day. We therefore have to exercise caution before acting in reliance on any identification evidence given by the witness Tafito Apisaloma. The reason is that it is quite possible for an honest witness to make a mistaken identification. A witness can also be quite convincing about identification and yet be mistaken.

There are several weaknesses in the identification evidence of the first respondent that was given by the witness Tafito Apisaloma. In the first place, the evidence given by this witness clearly suggests that her observation of the person whom she said was the first respondent inside the white bus that was transporting electors to the Vaitele-uta booth was only momentary. Secondly, where the booth was located is some distance from the road where the bus had stopped. Thirdly, the person this witness said was the first respondent was inside a bus transporting electors to the booth. So he was not in an open and totally visible position. It is not clear whether he was sitting or standing inside the bus. It is also not clear whether the bus was crowded with electors or not. There were also many electors queuing up to go into the booth and it is not clear whether there were any electors standing behind the witness at the queue she was in so as to impede or partially impede her view of the road behind her. Fourthly, this witness said that she is not acquainted with the first respondent and there is no evidence that she had previously seen the first respondent at any time before election day. Fifthly, the evidence given by the present witness appears to be inconsistent with the evidence given by the witness Ioane Ulugia Felise who said that at about 1:00pm on election day while he was at the Vaitele-uta booth to cast his vote, he saw the first respondent came in a green car and stopped next to a white bus for about two or three minutes while the first respondent talked to the driver in the bus. Even though there is a difference of about one hour between the time the witness Tafito Apisaloma said she saw the first respondent in the white bus and the time the witness Ioane Ulugia Felise said he saw the first respondent came in a green car and talked to the driver in the white bus, the evidence given by the latter tends to weaken rather than enhance confidence in the evidence given by the former. Overall the quality of the identification evidence that was given by Tafito Apisaloma is not good. For these reasons we have decided not to act in reliance on the identification evidence given by that witness. It follows that we find no support in the evidence of Tafito Apisaloma for the evidence that was given by Uili Hall.

To rebut the allegation of bribery in paragraph 5(a) of the petition that the first respondent gave $20 to Uili Hall on election day for the purpose of inducing that elector to vote for him several witnesses were called. These were the first respondent, his wife Sharon Aiafi and six members of the first respondent’s election committee. These election committee members were Pola Motugaafa Mala, a sister of the first respondent, Salailefulu Salaina, Vaafaasisila Semisi Uesi, Popoai Evile Taloto and Luisa Talilai. The evidence of all these witnesses consisted of affidavits, which formed the main parts of their evidence in chief, and oral testimonies given during examination in chief, cross-examination and re-examination. We will refer to these witnesses and their evidence in the order they were called to testify.

According to the evidence which was given by the first respondent, he has a white bus and other vehicles but there was never any time on election day that he had travelled in a white bus. He said that his white bus was assigned solely for transporting electors from the areas of Vaitele-uta and Vaitele-fou to the polling booth at Vaitele-uta. A different bus called "Kuiniselani" was hired to transport electors from Vaitele-tai and other areas to the polling booth. The implication of this evidence is that a white bus with the first respondent in it could not have picked up the witness Uili Hall at Yazaki at about 7:00am on election day, as that witness claimed, because the Yazaki factory is at Vaitele-tai but the first respondent’s white bus was assigned for transporting electors from the Vaitele-uta and Vaitele-fou areas to the polling booth at Vaitele-uta. The first respondent also testified that he was at home all morning on election day and the first time he left home was between 9:00am and 10:00am when he went to do some shopping at a supermarket at Lotopa. The other time he left his home was to go to the Vaitele-uta booth at about 2.30pm to cast his vote. He also said that he was at home most of the times on election day. The implication of this evidence is that the first respondent could not have been in a white bus which Uili Hall claimed to have picked him up near the Yazaki factory at about 7:00am on election morning. That being so, the first respondent could not have given Uili Hall a $20 note as he got off such bus.

The witness Sharon Aiafi, the wife of the first respondent, testified that the first respondent was at home at all times during election morning except around about 9:30am to 10:00am when he went to do some shopping at a supermarket at Lotopa. She herself was too busy preparing food. This was food prepared, as one witness testified, for electors after they had cast their votes. Mrs Aiafi also testified that their white bus was allocated for transporting electors from the Vaitele-uta and Vaitele-fou areas to the booth at Vaitele-uta. A different bus was allocated for transporting electors from Vaitele-tai, Toamua and other areas down that end.

The witness Pola Motugaafa Mala testified that she was at the house of the first respondent on the night before the election to assist with the preparations for the next day and she remained there throughout election morning. She also testified that the first respondent was at home all morning on election day except around 9:30am to 10:00am when he went to do some shopping.

The witness Salailefulu Salaina testified that he was in the white bus on election morning, sitting behind the driver, until about 9:30am that morning when he left to go and cast his vote in one of the special polling booths in Apia as he is an elector for a different territorial constituency from Faleata Sisifo. He also testified that other members of the election committee for the first respondent who were in the white bus were Vaafaasisila, the driver of the bus, Luisa Talitai and Popoai Evile Taloto. He further said that the first respondent never once stepped inside the bus during election morning when he was in the bus and the bus never went down the road by the Yazaki factory.

The next witness was Vaafaasisila Semisi Uesi the driver of the said white bus during election day. According to this witness, the witnesses Salailefulu Salaina, Popoai Evile Taloto and Luisa Talitai were present inside the bus and Salailefulu Salaina was sitting in the seat right behind him. He also said that there was never any time on election day that the first respondent stepped inside the bus or rode in the bus. He further said that the only areas where he drove the bus to were Vaitele-uta and Vaitele-fou; at no time did he drive the bus past Yazaki at Vaitele-tai as claimed by Uili Hall.

There were parts of the evidence that was given by the witness Vaafaasisila which we find to be suspect and would not accept. The first is where he said that at no time on election day while he was transporting electors in the white bus from the Vaitele-uta and Vaitele-fou areas to the booth did the first respondent contact him on the cell-phone he had in the bus. We find it unreal that the first respondent who was a candidate running in the election did not show any interest on election day in how Vaafaasisila was doing in picking up electors and transporting them to the booth to cast their votes. The other part of this witness’s evidence that we find suspect is where he said that he was not at the house of the first respondent at any time after the close of polling. This is inconsistent with the evidence given by the witnesses Popoai Evile Taloto and Luisa Talitai. These witnesses testified that they saw Vaafaasisila at the house of the first respondent in the evening of election day as they were awaiting the results of the election.

However, even though we find two parts of Vaafaasisila’s evidence suspect, after consideration of all of the relevant evidence, we are not able to conclude with the necessary degree of confidence that we should reject his evidence that not once on election day did the first respondent step inside the white bus he was driving or ride in that bus. He also said that at no time on election day did he drive the white bus past Yazaki at Vaitele-tai as claimed by Uili Hall. These parts of Vaafaasisila’s evidence are consistent with the evidence that was given by the first respondent and all the witnesses called for the first respondent in relation to the allegation in paragraph 5(a) of the petition. As judges of fact we may believe or disbelieve the whole of a witness’s evidence. Alternatively, we may decide to reject some parts of a witness’s evidence and not other parts.

The remaining witnesses called for the first respondent on the paragraph 5(a) allegaion were Popoai Evile Taloto and Luisa Talitai. According to the evidence of the witness Popoai, she got onto the white bus at Vaitele-uta at about 6.30am on election morning. She was one of the first respondent’s election committee members who went around the Vaitele-uta and Vaitele-fou areas looking for electors to be picked up and transported to the Vaitele-uta booth to cast their votes. She said she was present in the white bus until about 9:00am on election morning. Other committee members for the first respondent who were in the white bus were Vaafaasisila Semisi, the bus driver, Salailefulu Salaina and Luisa Talitai. She also said that never once did the first respondent step inside the white bus on election morning while she was in the bus. She further said that the white bus never went down the road by Yazaki on election morning. The evidence given by the witness Luisa Talitai is substantially the same as the evidence given by the witness Popoai Evile Taloto. She said she was riding in the white bus on election morning until about 9:00am and never once did the first respondent step inside the bus during that time. She also said the white bus never went down the road by Yazaki.

In considering the evidence of the witness Uili Hall who is the only witness for the petitioner to support the allegation of bribery in paragraph 5(a) of the petition, we are of the view that in the special circumstances of this case, it would be appropriate for us to exercise special caution before acting in reliance on that evidence. We consider that there is a risk in acting on that evidence alone without any other evidence to support it. We have also considered the evidence given by and for the first respondent. In weighing all of this evidence, we are not satisfied with the necessary degree of confidence that the allegation of bribery in paragraph 5(a) has been proved beyond reasonable doubt. That allegation is therefore dismissed.

To prove the allegation of bribery contained in paragraph 5(b) of the petition concerning the giving by the first respondent of $20 to the elector Ula Faafua on 29 March 2006 for the purpose of inducing that elector to vote for him, the petitioner called two witnesses, namely, Ula Faafua and Elikapo Pule. We will restrict our consideration of the evidence of these witnesses, particularly Ula Faafua, to those parts which are relevant to our determination of the present allegation.

According to the evidence of the witness Ula Faafua, he works as a machine operator at Strickland Brothers at Lepea. On 29 March 2006 while he was working at Strickland Brothers, the first respondent came in to order some timber. The first respondent told him that he was a candidate for the Faleata Sisifo territorial constituency and aso asked him about where he was voting for the election. He replied that he was voting in the Faleata Sisifo territorial constituency. The first respondent then asked him to come to his car which was parked outside. At the car, the first respondent checked his electoral roll and found Ula Faafua’s name in it. The car is a new model. Ula Faafua said the first respondent then gave him $20 and told him not to go anywhere on election day as he will pick him up. The first respondent then left in his car. This witness also said that there was no one, not even a woman, in the car when he went with the first respondent to check the electoral roll. The father in law of this witness was an election committee member for the petitioner.

The evidence given by the witness Elikapo Pule was brief and was not subjected to cross-examination. According to this witness, on 29 March 2006 he was at work at Strickland Brothers at Lepea when the first respondent came into the workshop with Ula Faafua. He was then instructed to prepare cutting boards for the first respondent. The next day the first respondent came in and picked up his cutting boards.

In response to the allegation in paragraph 5(b), the first respondent and his wife, Sharon Aiafi, gave evidence denying the allegation. We will also restrict our consideration of the evidence of these two witnesses to those parts which are relevant to our determination of the present allegation.

The first respondent testified that on 29 March 2006 he went with his wife and children to Strickland Brothers to order some meat cutting boards. These were for the preparation of the food on election day. The first respondent said that at Strickland Brothers, Ula Faafua approached him and started talking to him and that was when Ula Faafua told him that he was an elector for the Faleata Sisifo territorial constituency. The first respondent denied that he told Ula Faafua that he was a candidate for Faleata Sisifo. The first respondent further said that he did not believe what Ula Faafua told him so he went to his car to check his electoral roll. Ula Faafua followed him. At the car he checked his electoral roll and found Ula Faafua’s name was there. Ula Faafua then asked the first respondent for money to buy some food. According to the first respondent, he told Ula Faafua he had no money and he cannot give him any money anyway as it may be seen as bribery. He also told Ula Faafua that if he needed transport on election day then let him know and someone would come and pick him up. Ula Faafua did not call on election day, so no one was sent to pick him up. The first respondent also said that his wife who was in the car overheard what he was saying to Ula Faafua.

Sharon Aiafi, the wife of the first respondent, testified that she had been nagging her husband about getting some meat cutting boards for preparation of the food on election day. So on 29 March 2006 after picking up their children from school, they stopped their Mitsubishi car in front of Strickland Brothers and the first respondent went inside to order some meat cutting boards. Not long her husband returned with someone else following behind him. Her husband got inside the car and checked his electoral roll while still talking to this other ‘guy’ who was standing outside. At that time the front door on the driver’s side was partially opened. Mrs Aiafi said her son was sitting in the passenger’s seat in the front and she was sitting in the back seat behind her son. She also said that the windows of their Mitsubishi car are tinted and it would be difficult to see inside the car from outside. She further said that while her husband was talking to this other ‘guy’ she overheard him asking her husband for some money but her husband replied he had no money and he cannot give him any money as it may be seen as bribery. Her husband also said if he needs transport on election day then let him know and someone will pick him up.

In considering the evidence of the witness Ula Faafua who is the only witness for the petitioner whose evidence is in support of the allegation of bribery in paragraph 5(b) of the petition, we are again of the view that in the special circumstances of this case it would be appropriate for us to exercise special caution before acting in reliance on that evidence alone. We are of the view that there is a risk in acting on that evidence alone without any other evidence in support. We have also considered the evidence given by the first respondent and his wife. In weighing all of this evidence, we are again not satisfied with the necessary degree of confidence that the allegation of bribery in paragraph 5(b) of the petition has been proved beyond reasonable doubt. That allegation is therefore also dismissed.

The allegations of treating in paragraphs 6(b) and 6(c) of the petition can be dealt with together as the evidence relating to those two allegations is the same. As stated earlier, allegation 6(b) is that on the 24th March 2006 the first respondent did give to the elector Samoa Aumua bottles of beer for the purpose of corruptly influencing that elector to vote for him in the 2006 general election. Allegation 6(c) is that on the 24th March 2006 the first respondent did give to the elector Keneti Sape bottles of beer for the purpose of corruptly influencing that elector to vote for him in the 2006 general election. To prove these allegations the petitioner called three witnesses, namely, Amu Paepae Kapeli Su’a (Amu), Keneti Sape and Samoa Aumua. As with other witnesses, the evidence of these witnesses also consisted of affidavits, which formed the main parts of their evidence in chief, and oral testimonies.

According to the evidence of the witness Amu he knows the first respondent and the first respondent knows him. The two are acquainted. Amu did not dispute what is said in the first respondent’s affidavit, which was served on counsel for the petitioner before the trial, that the first respondent knows Amu very well through his father who is a good friend of the first respondent and his younger brother who worked with the first respondent at the Samoa Airport Authority. Amu also said that the first respondent knew that he was not an elector for the Faleata Sisifo constituency. This is consistent with the first respondent’s evidence that he knew Amu was registered as an elector in a different constituency where his father ran as a candidate in the 2006 general election.

Amu also testified that the first respondent gave him money on three separate occasions before the general election on 31 March 2006. The first occasion was on a Sunday in December 2005 when he went and asked the first respondent for $30 for a family faalavelave. The first respondent gave him $30. The second occasion was on Friday evening, 24 March 2006, when he went with Keneti Sape, Samoa Aumua and Faasau Tunumafono to the home of the first respondent at Vaitele-uta and he asked the first respondent for some beers. The first respondent accompanied Amu and his friends to a shop where he bought 24 small bottles of Vailima beer and two packets of cigarettes. The third occasion was on Wednesday night, 29 March 2006 when Amu went again to the home of the first respondent to take the said Samoa Aumua to assist the first respondent with chores on election day. The first respondent told Amu that there were enough people to help out with his preparations on election day and he did not need another person. Amu then said he wanted some beers and the first respondent gave him $20. It is clear from the evidence of Amu himself and the first respondent that the first respondent was aware at all these times that Amu was not voting in the general election at the Faleata Sisifo constituency but at the constituency where his father was running as an election candidate. Amu also testified that he had not considered giving evidence against the first respondent in this case until someone asked him.

The first and third occasions are not the subject of any allegation of corrupt practice against the first respondent but the second occasion is. We will deal with that now.

It appears from the evidence of Amu that sometime prior to 24 March 2006, he met with the first respondent and had a chat during which the first respondent said to him, ‘when you want a drink come and have a beer with me at my home’. Whether the first respondent was serious about his invitation or not, it appears Amu did not forget about it. On Friday evening, 24 March 2006, Amu went to the first respondent’s house for beers. However, he did not go alone. He was accompanied by Keneti Sape and Samoa Aumua, both electors of Faleata Sisifo, and Faasau Tunumafono, who was not. When they arrived at the first respondent’s house, the first respondent was not there. So they waited for him in front of his house. Not long the first respondent arrived. Amu then went up and talked to the first respondent and said he wanted some beer. The first respondent asked who were the other three men he had come with. Amu replied they were from Toamua and were crew members of the long boat Avi’ivi’i. They then left in the first respondent’s bus for a shop at Vaitele-tai. The first respondent testified that when Amu asked him for some beer he had no beer at home at that time.

Amu further said that as they were coming down in the bus from Vaitele-uta, the first respondent asked him about the election preparations of one of the candidates for the Faleata Sisifo constituency. The first respondent then turned to him and said "Amu vaai lau fanau lea i o ta’u nei mea e faapea o campaign o le palota" (Amu watch your friends in case they go and tell these things are "campaign" for the election). When they stopped at a shop at Vaitele-tai, he went with the first respondent inside the shop. The first respondent asked him what they wanted. He replied beers and cigarettes. The first respondent then bought 24 small bottles of Vailima beer and two packets of cigarettes and said to Amu "Tautuana Amu ua sa le faatosina, tautuana ia aua nei iloa e se isi" (Bear in mind Amu treating is prohibited, bear in mind that no one should know about this). The first respondent then left the shop followed by Amu with the beers and cigarettes.

Amu’s friends Keneti Sape and Samoa Aumua gave evidence but not Faasau Tunumafono who was not an elector for the Faleata Sisifo constituency. According to the evidence of Keneti Sape and Samoa Aumua, the four of them had been playing rugby on 24 March 2006 and at the end of it they wanted to drink some beer. So they decided to go to the first respondent, as he was the only election candidate in their constituency they had not been to for beers. If this evidence is true, then it is a clear example of electors taking advantage of their election candidates during election time and the sooner this bad habit stops the better it will be for parliamentary elections in this country. This evidence is somewhat different from the evidence given by Amu who made no mention of having played rugby on the day in question or any arrangement with his friends to go to the first respondent as the first respondent was the only election candidate they had not been to for beers. Apart from this discrepancy, the evidence of Amu, Keneti Sape and Samoa Aumua were consistent in other material respects.

We have given careful consideration to the evidence given by the petitioner’s witnesses and have come to the view that even if we accept that evidence, it does not satisfy us beyond reasonable doubt that the first respondent had the necessary mens rea required for the corrupt practice of treating when the first respondent bought beers and cigarettes for Amu and his friends.

On the evidence given by Amu, he and the first respondent know one another. They are acquainted. The first respondent also knew that Amu was not an elector for the Faleata Sisifo constituency. In December 2005, Amu went to the first respondent for $30 for his family faalavelave and the first respondent gave him $30. They met sometime prior to 24 March 2006 and the first respondent said to Amu when you want a drink come and have a beer with me at my house. On Friday evening 24 March 2006 Amu appeared at the house of the first respondent and asked for beer. But he did not go by himself. He went with three other men two of whom were electors for the Faleata Sisifo constituency and one was not. Then on Wednesday night, 29 March 2006, Amu again appeared at the house of the first respondent with Samoa Aumua and offered the services of that witness to the first respondent for his preparations on election day. The first respondent turned down that offer as he already had enough people to help out with the chores on election day. Amu then asked for beer and the first respondent gave him $20. If matters had stopped there, it could not have been argued that the first respondent had any intent to corruptly influence any person to vote for him at the election. However, matters did not stop there.

The first respondent went in his bus with Amu and his friends to a shop where he bought beers and cigarettes. It is arguable, as counsel for the petitioner submitted to the Court, that the reason why the first respondent accompanied Amu and his friends to the shop was that when the first respondent asked Amu who were these other men he came with, Amu replied they were members of the Avi’ivi’i crew from Toamua which implied they were electors for Faleata Sisifo. However, it is equally arguable that the reason why the first respondent accompanied Amu and his friends to the shop was because of Amu and not because of his friends. It is shown from the evidence that the first respondent and Amu are acquainted. The first respondent knew that Amu was not an elector of the Faleata Sisifo constituency. He invited Amu to come to his place for a beer when he wanted a drink. Amu turned up on Friday night, 24 March 2006, and asked for some beers. He was not alone but in the company of his friends. The first respondent did not have any beer at his house at that time. Thus it is arguable that the reason why the first respondent accompanied Amu and his friends to the shop to buy beers and cigarettes was because Amu and the first respondent are acquainted and the first respondent had invited Amu to his house for a beer when he wanted a drink. However, when Amu turned up on 24 March and asked for some beer the first respondent did not have any beer at his house. It is also somewhat difficult to accept with the necessary of confidence that the reason why the first respondent accompanied Amu and his friends was because two of Amu’s friends were electors of Faleata Sisifo. It is to be recalled that on the night of 29 March 2006, Amu took his friend Samoa Aumua, an elector of Faleata Sisifo, back to the first respondent’s house and offered the services of Samoa Aumua to the first respondent for his election day preparations. The first respondent turned down Amu’s offer. One would have thought that if the real reason why the first respondent had accompanied Amu, Samoa Aumua and others to the shop on 24 April was because of Amu’s friends who were electors of Faleata Sisifo, the first respondent would not have turned down Amu’s offer of Samoa Aumua’s services on 29 March for that would have been an opportunity to try and secure the vote of Samoa Aumua. But that did not happen.

Furthermore, the evidence given by Amu that as they were coming down from Vaitele-uta in the bus, the first respondent who was driving turned to him and said "Amu vaai lau fanau lea i o ta’u nei mea e faapea o campaign o le palota" (Amu watch your friends in case they go and tell these things are "campaign" for the election) and that when the two of them came out of the shop after the first respondent had bought the beers and cigarettes, the first respondent said "Tautuana Amu ua sa le faatosina, tautuana ia aua nei iloa e se isi" (Bear in mind Amu treating is now prohibited, bear in mind no one should know about this) should be considered in the context of all that which happened.

We have already mentioned that Amu and the first respondent are acquainted and that the first respondent knew that Amu was not an elector for Faleata Sisifo in the 2006 general election. We have also mentioned the three separate occasions where Amu went and asked the first respondent in December 2005 for money, the occasion which is the subject of the present allegations where Amu asked the first respondent for some beer, and the third occasion on 29 March when Amu offered the services of Aumua Samoa to the first respondent but it was turned down and he then asked for beer and the first respondent gave him $20. We have also mentioned the verbal invitation made by the first respondent to Amu to come to his house for a beer when he wanted a drink. It is also to be borne in mind that the allegations in paragraphs 6(b) and 6(c) of the petition did not arise out of the first respondent going out to look for electors to vote for him at and in the process gave out money, beer or cigarettes. If that was what happened it would have added weight to the argument that the first respondent had the necessary intent to influence electors to vote for him. However, what in effect happened in this case is that it was Amu and his friends who went looking for the first respondent at his house for beers and when they found that the first respondent was not at his house they waited for him.

What the statements which have been attributed to the first respondent show is that the first respondent was at the time he made those statements conscious of the fact that bribery and treating were prohibited. He was clearly concerned that Amu’s friends may tell those things as "campaigning" for the election. We also detect from the statements a sense of reluctance on the part of the first respondent to do what he was doing. So the first respondent was relying on his acquaintance Amu to keep matters quite. When Amu turned up again with his friend Samoa Aumua at the house of the first respondent on 29 March and offered the services of Aumua Samoa for election day preparations, the first respondent turned him down.

So even if were to accept the evidence that was presented by the witnesses for the petitioner, we would not be able to conclude with the necessary degree of confidence that the first respondent had the mens rea which is required for the corrupt practice of treating when he bought beers and cigarettes for Amu and his friends. On the other hand, if we were to accept the evidence that was given by the first respondent who denied the statements attributed to him on the bus and gave a different version of what happened between him and Amu in the shop, that evidence would have exonerated the first respondent. We therefore conclude that the petitioner has not proved the allegations of treating in paragraphs 6(b) and 6(c) of the petition beyond reasonable doubt. Those allegations are therefore also dismissed.

"7. THE petitioner alleges irregularities in the custody of the marked rolls used on polling day in that the marked roll for Vaigaga used at polling booth 28 has been missing since polling day and not available for scrutiny at the official count and subsequent declaration of the election result for the constituency of Faleata Sisifo.

8. THE petitioner alleges irregularities in the custody of the marked rolls for polling booths 32 (Saina) and 29 (Toamua) after polling day when the marked rolls were not kept in locked custody after polling day but were hand carried by officers of the second respondent on instructions from the second respondent and kept unsecured until the official count.

9. THE petitioner alleges irregularities in the appointment and role of deputy returning officers appointed for booths 27 and 28 who are either related to or are close acquaintances of the first respondent and his family.

10. THE petitioner alleges irregularities in the declaration of alleged dual votes totalling 29 when the second respondent had implemented a system to prevent such dual voting."

The petitioner, who did not rely on the allegation in para 10, called two witnesses to testify as to the irregularities alleged in paras 7, 8 and 9. This is the witness Rosa Ulugia Toese who testified as to alleged irregularities in paras 7, 8 and 9 and the witness Leuo Avetaeao Kato who testified only as to the alleged irregularity in para 7. In response the second respondent called six witnesses. These were Tanuvasa Isitolo Lemisio, the Electoral Commissioner, Simea Avei, Savali Ulaula, Sarai Mavaega, Vaioa Vaamainuu and Ferila Lokeni Lepa. The issue here is determined by s.116 of the Act: see Patea Satini Epati v Solamalemalo Keneti Sio and Electoral Commissioner [2006] WSSC 42. Our conclusion in relation to the alleged irregularities in paras 7, 8 and 9 is that the requirements of s.116 have not been met.

Latu Ey for Petitioner
Toa Law for First Respondent
Attorney General’s Office, Apia, for Second Respondent