Vui v Ah Chong [2006] WSSC 52 (26 September 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

MULITALO SEALIIMALIETOA SIAFAUSA VUI
of Vaimoso.
Informant

AND

SU’A RIMONI AH CHONG of Lotopa.
Defendant

Counsel: T R S Toailoa for Informant
R Drake for Defendant

Hearing: 12, 13, 14 September 2006
Submission: 18 September 2006
Judgment: 26 September 2006

JUDGMENT OF SAPOLU CJ

Introduction

The present proceedings have been brought by the informant as a private prosecution under the provisions of the Electoral Act 1963. They consist of two charges of electoral bribery laid under s.96 of the Act. Initially, the charges were filed in the District Court which has jurisdiction to hear and determine the charges. But due to possible conflicts of interest on the part of both Judges of the District Court, proceedings have been transferred to this Court for hearing.

The charges

The first charge alleges that at Lano, Savaii, on or about the 25th day of February 2006, the defendant gave one Faalafi Tauave $50 for the purpose of inducing Faalafi Tauave’s children and wife who are electors of the territorial constituency of Faasaleleaga No.4 to vote for the defendant, thereby committing the offence of bribery.

The second charge alleges that at Lano, Savaii, on or about the 29th day of March 2006, the defendant gave a brand new television set for the family of Muliaga Faalafi who are electors of the territorial constituency of Faasaleleaga No.4 for the purpose of inducing the said Muliaga Faalafi and members of his family to vote for the defendant, thereby committing the offence of bribery.

Relevant law

In this case, there is really no dispute that the requisite actus reus for the offence of bribery exists. The real dispute centres on whether the actus reus was accompanied by the necessary mens rea or mental element for the offence.

In the recent case of Re Territorial Constituency of Aleipata Itupa i Lalo Election Petition, Tautoloitua Farani Posala v Paepae Kapeli Su’a [2006] WSSC 29, the Court there stated:

"In Rogers on Elections (20th ed) at p.265, the author wrote:

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

And shortly afterwards he wrote:

‘There can be no corrupt practice without a corrupt intention.’

Further on in its judgment the Court said:

"Bribery can be committed in many ways as is apparent from s.96 subsections 3, 4, 5, 7 and 8 where these matters are set out. The most important and essential element in the offence of bribery is proof of the corrupt intention of the person charged with committing the offence."

‘...

For a bribery prosecution to succeed the prosecution must be able to prove beyond reasonable doubt that the act of the accused person or the act of any person on his behalf was done with a corrupt intention. If the prosecutor fails to prove this beyond reasonable doubt the accused person will be found not guilty.’

An intention can never be proved as a fact; it can only be inferred from facts proven beyond reasonable doubt...

[It] is the prosecution who bears the burden of proof and who, if it is to prove the respondent guilty, has to prove beyond reasonable doubt that the accused person had a corrupt intention at the time he allegedly bribed the person named in the particular charge. In the Heresford Case (1869) 20 L.T. 405, it was held that ‘corruptly’ means given with the intention of influencing that election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting.’

The Court then referred to Rogers on Elections (20th) ed again where the learned author says at p.270:

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

In the often cited case of Re Wairau Election Petition [1912] NZGazLawRp 37; (1912) 31 NZLR 321, at p. 326, William and Chapman JJ said with regard to the ascertainment of a corrupt intention in an election petition case:

"A corrupt intention is an intention on the part of the person treating to influence the votes of the persons treated. The question of intention is an inference of fact which the Court has to draw... If in any case, looking at all the circumstances the reasonable and probable effect of the alleged treating would be to influence the result of the election, or influence the votes of the individual voters, it might will be inferred that it was the intention of the person treating that this effect should follow."

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

On the issue of motive, the authorities do not appear to be entirely consistent. In Rogers on Elections 20th ed, the learned author says at p.270:

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

In Ah Him v Amosa [2001] WSSC 16, the Court there said;

"It would be sufficient for the purpose of establishing the intent required for bribery and treating in terms of the Act, if one of the motives which accompanied the presentation of money or food was to induce electors to vote for the respondent: see the judgment of Donne CJ in the High Court of Cook Islands in Re Mitiaro Election Petition [1979] 1 NZLR S1. at s.12"

In another decision of the High Court of the Cook Islands in Pokoati v Tetava [1978] CKHC 2, Donne CJ said:

"Furthermore, it may be that the ‘governing motive’ approach in Rogers puts the matter too favourably to the first respondent since there are recent decisions of high authority holding, in comparable fields of electoral law, that it is sufficient in cases of mixed motives if one of the purposes of the scheme was the designated illegal purpose: for example, DPP v Luft [1976] UKHL 4; [1976] 3 WLR 32; [1976] 2 All ER 569 (HL) and the note thereon in 39 Modern Law Review 730, 731-732. In DPP v Luft, a criminal case under the Representation of the People Act 1949 involving allegedly illegal campaign expenditure, the House of Lords held that in assessing the liability of the person incurring the disputed expenditure it was sufficient if one of the reasons which played a part in inducing the person to incur the expenditure was his desire to promote or procure the election of a candidate. Earlier cases involving a 'dominant intention’ test were rejected."

In DPP v Luft [1979] 2 All ER 569, Lord Diplock said at p.574:

"To speak of a dominant intention suggests that a desire to achieve one particular purpose can alone be causative of human actions, whereas so many human actions are prompted by a desire to kill two birds with one stone. For my part, I prefer to omit the adjective ‘dominant".

On the issue of charity or gift, I refer to Re Election Petition Aleipata (Itupa i Lalo) Territorial Constituency, Tafua Kalolo v Letiu Tamatoa [1970-1979] WSLR 247 where Nicholson CJ said at p.249:

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

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

Earlier at page 286, the author observed,

‘it is obvious that what are called charitable gifts may be nothing more than a specious and subtle form of bribery, a pretext adopted to veil the corrupt purpose of gaining or securing the votes of the recipients. And if this is found to be the object of the donor it matters not under what pretext, in what form, to what person or through whose hands the gift may be bestowed or whether it has proved successful in gaining the desired object or ‘not.’"

In Halsbury’s Laws of England 4th ed, vol 15, para 774, it is there stated in relation to charitable gifts:

"The distribution of charitable gifts to voters had always been allowed. On the other hand what are called charitable gifts may be merely a specious and subtle form of bribery...The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bribery."

The evidence

(a) Evidence relating to the first charge

At the trial both counsel agreed that they will lead their evidence as they see fit but it will be left to the Court to determine which evidence is hearsay and therefore inadmissible. As these are criminal proceedings, the hearsay rule, of course, applies.

The defendant was an election candidate for the territorial constituency of Faasaleleaga No.4 in the 2006 general election held on 31 March. He is a matai from the village of Lano in Savaii in the said constituency and had declared his election candidacy in June 2005. He is also the leader of the Samoa Party which was one of the political parties that contested the 2006 general election.

In dealing with the allegation of bribery which is the subject of the first charge, I will refer briefly first to some of the events that occurred prior to 25 February 2006, which is the date the first allegation of bribery is said to have taken place. According to the evidence given by the defendant, in proceedings relating to the title Iiga of his family before the Land and Titles Court in 2001, that Court decided that the pule (authority) of the title Iiga in the village of Lano be vested in three clans: the clan of the defendant’s family, the clan of one Utumalama’s family and the clan of one Vui Niko’s family. In the same proceedings, the Land and Titles Court cancelled the appointments to the title Iiga which had been made by the clan of Vui Niko and his family. Appeals have been filed against that decision of the Court.

On 1 June 2005, the three clans of the title Iiga met at Lano in an attempt to reconcile and sort out their differences but no consensus was reached. It was then decided that the three clans would meet again at some time in the future before the appeals are called for hearing. Later that month the defendant declared his candidacy for the 2006 general election.

The evidence by the defendant then refers to discussions with Vui Niko when the latter contacted the defendant on 16 June 2005, 9 January 2006 and mid-February 2006. What Vui Niko said in those discussions would be hearsay as he was not called as a witness. However, in consequence of the discussions with Vui Niko, the defendant, in the week beginning 20 February, called one Taiva Mulitalo a niece of the said Utumalama (Malama) at Lano requesting Taiva to contact Malama if they could meet when the defendant come to Savaii on Saturday, 25 February. Flo Anderson, the daughter of Taiva, gave evidence that she relayed the defendant’s request to Muliaga, a son of Malama who was working in her bakery, to pass on to his mother.

I accept the evidence given by the defendant that on 25 February 2005 he left Upolu on the last ferry for Savaii and arrived at the house of Malama and her husband Faalafi Tauave at Lano at about 5:30pm. This was the first time the defendant had been to the house of Malama. The defendant then met with Malama and her niece Taiva. What was discussed at that meeting was whether Malama and her clan would agree to a meeting of the three clans of the Iiga title to be held at the end of February 2006 to try and reconcile their differences that arose out of the Court case in 2001. The response given by Malama was that it would be better to leave the matter until after the election, that is, the general election to be held on 31 March.

In the course of the meeting a meal consisting of taro, palusami, fried chicken, chop suey and other food was served. Afther the meal the defendant thanked Malama, Faalafi and Taiva for the meal. The defendant then took out a $50 note and gave it to Faalafi for him and Malama to buy sugar with. Faalafi had been present throughout during the discussion between the defendant, Malama and Taiva but took no part in it. According to the defendant, he gave the money to Faalafi to buy sugar for him and Malama because he felt sorry for them for they are poor but they have spent money to prepare food to welcome him. Unknown to the defendant at the time it was Taiva, and not Malama and Faalafi, who provided all of the food. The defendant strongly denied that he had any intention of inducing Malama and her children, who are all electors of the Faasaleleaga No. 4 constituency, to vote for him at the general election. Faalafi is an elector in a different constituency.

(b) Evidence relating to the second charge

In respect of the second charge, the evidence given by the defendant is that on Sunday, 5 March 2006, he left for Savaii at the 4:00pm ferry and arrived at Lano at about 5:30pm. As he was driving towards Asaga, Muliaga Faalafi, a son of the said Malama and an elector of the Faasaleleaga No. 4 constituency, stopped his van and told him that the old lady (Malama) had asked if he (the defendant) could take her TV to be fixed in Apia as it had "broken down" for some time. The evidence given by Muliaga Faalafi, who was called by the informant, was that at the beginning of March 2006 he was looking for a vehicle to bring his family’s TV, which had broken down for some time, to Apia to be repaired. So when he saw the defendant in their village of Lano, he then requested him if he could bring his family’s TV to Apia to repair. I have decided to accept the defendant’s evidence as opposed to the evidence of Muliaga whom I found to have exaggerated some parts of his evidence. I have also decided to accept the defendant’s evidence that Muliaga never mentioned that he would pay the defendant for getting the TV fixed.

On Tuesday morning, 7 March, when the defendant returned to Apia, he brought with him the TV set. The defendant then took the TV to a repair technician in Apia who advised that it was not likely that the TV could be fixed as someone must have opened the TV and tried to fix it. The defendant then said in evidence that he felt sorry at the time for the "old lady" (Malama) of his family and when he next went to Savaii on 29 March he took with him a new TV set of the same size so Malama may enjoy watching TV again. The defendant further said that he felt Malama will never get another TV again and it would be one of the few joys she would have if she got a TV. So he took a new TV to Savaii for her out of genuine love and kindness to her. When the defendant arrived at Lano on 29 March, he went first to Flo Anderson’s bakery where Muliaga, the son of Malama, was working at the time and asked him to come and install the new TV and its aerial. That was done the same day. The evidence shows that both the "old lady" and Muliaga were very happy after the TV was installed.

The cost of the new TV was $299 which seems to be a rather cheap price for a new TV. The cost of the aerial was different. So the total price of the TV and the aerial added together must have been more than $300.

In his evidence, the defendant also referred to the good deeds he had done for his relatives not only in Lano but in other villages outside of the Faasaleleaga No.4 constituency. In relation to Lano, he mentioned that in 2003 he bought a TV set for Vui Vaea Toe an 81 year old elderly of his Vui family. He also testified that at every Christmas he gave out gifts of $100 and a bag of rice to each of the elderly, the sick and the poor of his village of Lano. The number of such people in Lano to whom the defendant gave these Christmas gifts was about twelve per year. In 2004, a gift of $100 and a bag of rice was given to Malama and Faalafi as a Christmas gift. However, no gifts were given out in the Christmas of 2005. The reason for this, according to the defendant, was because he was running for the 2006 general election. The witness A’e Faitala who used to distribute these Christmas gifts for the defendant, testified for the defendant that when she asked the defendant in December 2005 whether he was giving out his usual gifts, the defendant replied "no" as he did not want the election to be affected by the gifts.

It also appears from the evidence that the defendant was not bestowed with his title Su’a in Lano until 1994 or 1995. It was not until he was registered as an elector of Lano in 2001 that he started making Christmas gifts to the elderly, the sick and the poor of his village. In June 2005 he declared his candidacy for the 2006 general election.

It is also mentioned by the defendant that every year he provides funds for the Christmas party of the children of his family at Lano. It is not clear when this started. But the defendant said the purpose for this is to encourage bonding, sharing and togetherness in spirit for the children of his family who are the future of his family.

Discussion

In respect of the first charge, there is no dispute that the defendant did give $50 to Faalafi Tauave to buy sugar for him and Malama. Thus the actus reus for the offence of bribery has been established. What is in serious dispute is whether the giving of $50 to Faalafi was accompanied by the corrupt intention of influencing the wife and children of Faalafi who are electors of the Faasaleleaga No.4 constituency to vote for the defendant in the 2006 general election.

As it appears from the admissible evidence, it was after Vui Niko from one of the clans of the Iiga title had contacted the defendant three times that the defendant called Taiva to contact Malama if they could meet when he came to Savaii on 25 February 2006. Malama belongs to one of three clans of the Iiga title. It is clear from the subject of the meeting between the defendant, Malama and Taiva that what was discussed was whether Malama would agree to a meeting of the three clans of the Iiga title at the end of February to reconcile their differences as a result of the Court case in 2001. That was the reason for the meeting.

The defendant also knew that Faalafi and Malama were poor as shown by the fact that in 2004 the defendant gave them a Christmas gift of $100 and a bag of rice, the usual Christmas gift the defendant gave to the elderly, the sick and the poor of his village from 2001 to 2004. So the defendant said he felt sorry for Faalafi and Malama when they presented him with a meal of taro, palusami, fried chicken, chop suey and other food for they have spent money to buy food to welcome him and he gave a $50 note to Faalafi for him and Malama to buy sugar.

Given the circumstances to which I have just referred, it would be unsafe to draw the inference that the defendant had the corrupt intent required for bribery. I have a reasonable doubt about the matter.

Counsel for the informant submitted that given the fact that this was the first time the defendant had ever visited Faalafi and Malama in their home and the imminence of the general election, I should draw the inference that the defendant intended to induce the wife and children of Faalafi who are electors of the Faasaleleaga No.4 constituency to vote for him at the election. I have already referred to the evidence which shows that the visit by the defendant to the house of Faalafi and Malama was in connection with the Iiga title and was an attempt to arrive at a reconciliation between the clans of that title. There is no evidence to show that the visit by the defendant was in connection with the election. It is true that the election was only four weeks away, but having regard to all the circumstances I am not prepared to draw the inference that at the material time when the defendant gave out the $50 he had the corrupt intent required for bribery. I am in doubt about the matter.

The first charge is therefore dismissed.

In respect of the second charge, I have come to the conclusion that the only reasonable inference to draw is that by providing a new TV set for Malama only two days before the general election on 31 March, the defendant had the requisite intent to induce Malama to vote for him at the election. I would also draw the inference that the same intent extended to Muliaga the son of Malama who gave the old TV to the defendant to fix and who installed the new TV and its aerial.

As the evidence shows, neither Malama nor Muliaga requested the defendant to provide a new TV set for them. What was requested was for the defendant to bring the broken down TV to Apia to be fixed. For the defendant to say that he acquired the new TV set out of true love and kindness to Malama effectively means that the new TV set was a gift to Malama only two days before the election. This would be inconsistent with the evidence given by the defendant that he refrained from giving out Christmas gifts in 2005 as he was running for the 2006 general election. It is also inconsistent with the evidence given by the witness A’e Faitala that when she asked the defendant in December 2005 whether he was giving out his usual gifts the defendant said "no", as he did not want the election to be affected by the gifts. A gift, of course, is a gift whether it is money, a bag of rice or a TV set. Thus, if the defendant had refrained from giving out Christmas gifts in 2005 to the elderly, the sick and the poor of Lano because of his concern that it might affect the election, then why did he give out this gift of a TV set two days before the election to Malama who is also elderly and poor?

It is also to be noted that there was really nothing which should have made the defendant feel obliged to provide a TV set as a gift to Malama. The meal that the defendant had at Malama’s house on 25 February had already been covered by giving $50 to Faalafi for him and Malama to buy sugar with. Malama’s refusal of the defendant’s mission on 25 February for the three clans of the Iiga title to meet and reconcile can hardly be something that should make the defendant feel obliged to buy a new TV set for the "old lady".

I would also have thought that if the reason for the defendant not giving out Christmas gifts in 2005 was because he was running in for the 2006 general election, what he could have done in respect of the TV given to him to be fixed was simply to tell Malama and/or Muliaga that the TV could not be fixed and leave it at that. Alternatively, if he wanted to provide a new TV set for Malama, then wait until after the election which was only two days away and then give the new TV set as a gift to Malama and her family. After all there is no evidence that Malama and her family was in urgent or immediate need of a TV. Their old TV had broken down for a while and so they had been without a good TV for some time.

As it is clear from the relevant authorities cited in this judgment, the imminence of an election is an important consideration in determining whether an act claimed to be one of charity amounts to bribery. The other important consideration is the value of the charitable gift. The value of the TV and its aerial in this case was clearly more than $300. That may not be a substantial gift to a well to do family or a rich person, but I am sure to the poor like Malama that must be a substantial gift. The "old lady" and her son Muliaga were obviously very happy after the new TV set from the defendant was installed.

I have not overlooked the evidence about the Christmas gifts given out by the defendant from 2001 to 2004 to the elderly, the sick and the poor of his village of Lano. In view of the evidence that those Christmas gifts started in 2001 when the defendant was registered as an elector of Lano, I do not find the evidence about the Christmas gifts persuasive.

I have come to the conclusion that the dominant motive behind the giving of the TV set to Malama was not charity but to induce her to support and vote for the defendant at the election. The same would apply to Muliaga. So whether the ‘dominant motive test’ or ‘one of the motives test’ is applied, I am satisfied that the defendant had the requisite mens rea for the offence of bribery in respect of Malama and her son Muliaga who are both electors for the Faasaleleaga No.4 constituency. The second charge is proved beyond reasonable doubt.

Conclusions

The first charge against the defendant has not been proved beyond reasonable doubt and it is therefore dismissed.

The second charge has been proved beyond reasonable doubt.

This matter is adjourned for sentencing to Thursday, 28 September 2006, at 8:30am. I do not propose to call for a probation report.

Before leaving this case, I hope this is the end of political differences that arose in the village of Lano from the 2006 general election. Both the informant and the defendant are very talented men who can use their talents for the good of the community and the village of Lano in particular.

CHIEF JUSTICE