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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
MISC 332/11
IN THE MATTER: of Electoral Act 1963.
AND:
IN THE MATTER:
concerning the Territorial Constituency of Anoamaa i Sasa'e
BETWEEN:
MOEFAAUO LUFILUFI,
of Lufilufi a candidate for election.
Petitioner
AND:
ALAI'ASA FILIPO SCHWARTZ HUNT,
of Faleapuna, a candidate for election.
Respondent
Coram: Honourable Justice Vaai
Honourable Justice Nelson
Counsels: T S Toailoa for the petitioner
RV Papalii for the respondent
Hearing: 12, 13, 14, 15, 19 & 20 April 2011
Submissions: 21 April 2011
Judgment: 26 April 2011
JUDGMENT OF THE COURT
Background:
[1] In the 2011 general election for the Legislative Assembly of Samoa held on Friday 4 March 2011, the petitioner, respondent and two other candidates competed to represent the Territorial Constituency of Anoamaa i Sasa'e which comprises the villages of Lufilufi, Falefa, Manunu, Lalomauga, Falevao, Sauano and Saletele. On 14 March 2011 the Electoral Commissioner publically notified the results for this territorial constituency as follows:
| Alai'asa Filipo Schwartz Hunt | 1094 votes |
| Gaga'eolo Manase Reupea | 127 votes |
| Moefaauo Lufilufi | 592 votes |
| Tofae Alailima | 58 votes |
| Total Valid Votes | 1871 |
| Informal Votes | 2 |
Candidate declared to be elected – Alai'asa Filipo Schwartz Hunt.
[2] The petitioner has brought a petition pursuant to Part X of the Electoral Act 1963 ("the Act") challenging this result and has in accordance with the provisions of the Act named the successful candidate as respondent. The petition alleges the respondent was guilty of corrupt practices in that he by himself and/or through agents acting on his behalf in the period leading up to the election committed acts of bribery by making payments of money to electors for the purpose of inducing said electors to vote for him. It is further alleged that two days after polling day on Sunday 06 March 2011, the respondent in the company of senior members of his campaign committee visited the petitioners residence in an effort to dissuade the petitioner from bringing an election petition and for this purpose made to him a certain monetary payment.
The petition:
[2] The petition particularises the following pre-election acts of bribery:
"(i) On Saturday, 13 November 2010 during a campaign rally held at Falefa, the respondent by his committee members and agents and in his presence, gave $200 to electors from Salesatele which included Latuivai Sio, Sameme Faleagafulu, Tauamo Fea, Faataui Tauamo Fea and Satoa Ilalio;
(ii) Sometime in November 2010 at Faleapuna, the respondent gave $250 to one Taaloga Simi and admonished the said Taaloga Simi to vote for him;
(iii) On Monday, 21 February 2011 at Sauano, the respondent by his agent Leiato Fineaso, gave $200 to Fuauli Aemalo of Sauano;
(iv) On 28 February 2011 at Faleapuna, the respondent by his agent Savea Sione and in his presence, gave $1000 to one Punua Alapati of Salesatele a committee member for the respondent for the purpose of bribing electors from Saletele and when the money was handed out the respondent admonished his committee members "E le o lau taga ae tautuana tagata palota" (It is not for your pocket but for the electors);
(v) On 28 February 2011 in the same occasion referred to in the preceding paragraph, the respondent by his agent Savea Sione and in his presence also gave $800 to one Faafetai Limutau an elector from Sauano and committee member for the respondent for the purpose of bribing electors from Sauano;
(vi) On 2 March 2011 at Faleapuna, the respondent gave $50 each to Moemalo Poasa, Tusafaaaefili Masi, Tusafaaaefili Mika and Faalua Lotu and telling them to keep in mind the election ("Tautuana le palota");
(vii) On 1 March 2011 at Faleapuna, by his agent Savea Sione, gave $200 to Maevaga Lepaio and her brother Tapu Lepaio;
(viii)On 4 March 2011 at Savalalo, by his agent Fanualelei Tominiko, gave $20 to a number of electors from Falefa who had casted their votes at the Savalalo Special votes booth for Anoamaa i Sasa'e;
(ix) On 4 March 2011 at Savalalo, by his agent Alofa, gave $10 to Taaloga Simi, male of Lufilufi;
(x) On 4 March 2011 at Savalalo by his agent Leti Taunuu, gave $10 to Aleni Tavita Fiaui;
(xi) On 4 March 2011 at Savalalo by his agent Leti Taunuu, gave $10 to Sulusamoa Moitino."
[3] The petitioner asserts these prove the respondent engaged in the corrupt practice of bribery within the terms of section 96 of the Act and therefore pursuant to section 112 his election should be voided. The particular part or parts of section 96 relied on were not cited by petitioners counsel but we assume it to be one or more of the categories laid out in sections 96 (3) and 96 (5).
[4] The relevant parts of section 96 for present purposes are as follows:
"Bribery – (1) In this section the terms "elector" and "voter" include any person who has or claims to have a right to vote.
(2) Every person is guilty of a corrupt practice who commits the offence of bribery.
(3) Every person commits the offence of bribery who, directly or indirectly by himself or herself or by any other person on his or her behalf:
(a) Gives any money or procures any office to or for any elector or voter, or to or for any other person on behalf of any elector or voter, or to or for any other person, in order to induce any elector or voter to vote or refrain from voting; or
(b) Corruptly does any such act as aforesaid on account of any elector or voter having voted or refrained from voting; or
(c) Makes any such gift or procurement as aforesaid to or for any person in order to induce that person to procure, or endeavour to procure, the return of any person at an election or the vote of any elector or voter,
or who, upon or in consequence of any such gift or procurement as aforesaid, procures, or engages, promise, or endeavours to procure, the return of any person at any election or the vote of any elector or voter.
(5) Every person commits the offence of bribery who:
(a) Advances or pays or causes to be paid any money to or to the use of any other person with the intent that that money or any part thereof shall be expended in bribery at any election; or
(b) Knowingly pays or causes to be paid any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any election."
Also relevant is section 96 (7) insofar as the elector who receives the bribe is concerned:
"An elector or voter commits the offence of bribery if before or during an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives, or agrees or contracts for, any money, gift, loan, or valuable consideration, office, place, or employment for himself or herself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting."
Section 112 provides:
"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 or her election shall be void."
[5] Respondents counsel did not take issue with the applicability of the law but made it clear in her submissions that the essential issue is the credibility of the evidence adduced and whether it meets the reasonable doubt standard. It is common ground between counsel that the onus of proving allegations of bribery is on he who makes it and the standard required is proof beyond reasonable doubt. This has long been the onus and standard adopted by the electoral court for such matters.
[6] In relation to the post-election ground, the petition states:
"That on 6 March 2011, the respondent and members of his campaign committee visited the petitioners residence and tried to persuade the petitioner not to bring an election petition against the respondent and in the process gave the petitioner and his wife $1000."
Petitioners counsel at the hearing clarified that the post-election allegation was not a separate stand alone allegation of corrupt practice – indeed it would appear not to fit within any of the statutory definitions of corrupt practice under the Act - but it was relevant in that it reinforced the corrupt intent or mens rea element of the primary allegations of bribery. In closing submissions counsel expanded upon this by saying that it was evidence suggestive of a guilty mind and that the giving of the money completed the intention that the respondent and his committee had in carrying out their acts of bribery.
Respondents counter-allegations:
[7] The respondent has denied each and every allegation brought by the petitioner. In addition he has pursuant to section 111(6) of the Act levied counter-allegations of bribery against the petitioner referred to by section 107A(2) of the Act and by counsel as "a counter-petition." He claims the petitioner and his wife have in the pre-election period been guilty of the corrupt practice of bribery of electors and his counsel argued that this would disqualify the petitioner from candidacy for Parliament in accordance with previous decisions of the court.
[8] In fact he is not disqualified pursuant to previous decisions of this court but becomes disqualified for 4 years (this becomes 5 years as from 01 June 2011 pursuant to the Electoral Amendment Act 2009) because of the combined effect of sections 32A(1)(b) and 5(5)(b)(ii) of the Act. Those sections provide as follows:
"32A. Corrupt Practices List – (1) Where it is proved before the Commissioner (i.e. the Electoral Commissioner – section 2(1) of the Act) that any person who is registered or who applies for registration as an elector or voter has within the immediately preceding period of four (4) years:
(a) Been convicted of a corrupt practice; or
(b) Been reported by the Supreme Court in its report on the trial of an election petition to have been proven guilty of a corrupt practice,
the Commissioner shall enter the name, residence, and description of that person and particulars of the conviction or report on a list to be called the Corrupt Practices List.
5. Who may be candidates for election as Members -
(5) A person shall be disqualified for being a candidate or being elected as a Member of Parliament if he or she:
(b) Has been:
(i) .....
(ii) Convicted or found guilty in Samoa of a corrupt practice and has not been removed from the Corrupt Practices List under section 32A."
[9] While no formal counter-petition has been filed it is clear from the affidavits of the respondents witnesses that the counter-allegations are as follows:
"(i) payment of $100 in October 2010 and other monies by the petitioners wife to Manutufatufa Maugatai the pulenuu of Manunu village;
(ii) payment of $1,000 in December 2010 by the petitioner to Leua Lupematasila ostensibly for a family faalavelave. This witness also says she received as a member of one of the petitioners committees payments of $30/$40 per meeting;
(iii) payments made by the petitioner and his wife to a meeting of electors from Falefa at the petitioners house on 22 February 2011;
(iv) payment of $100 on 28 Febuary 2011 by the petitioner and his wife to Fanua Lafaele as well as regular payments of $50 to $100 to him at committee meetings. This witness also referred to a payment of $1,000 to their committee received and distributed to electors in late 2010 when elector IDs were being processed;
(v) payments of $50 each to Puao Mafi, Tolai Solia and other Manunu matais at the petitioners house on 02 March 2011;
(vi) payments of $200 to the old blind grandfather Tafili and $100 to the elderly Malia Polutele on 03 March 2011 at their respective homes;
(vii) a general allegation of payments by the petitioner and/or his wife of varying amounts to members of the petitioners various election committees and sub-committees in the period leading up to the general election on 04 March 2011."
The evidence:
[10] We agree with counsels in this matter. This case is not about interpretation of any part of the bribery legislation. It is about the credibility of witnesses and the inferences that can properly be drawn from their evidence. To this end we therefore embark on a review of the evidence in relation to each allegation and counter-allegation and then render our finding in respect thereof. We undertake this exercise in chronological order.
The petition allegations:
(i) [11] Three witnesses were called by the petitioner in relation to the first allegation. The main one was Satoa Ilalio who testified about being invited while at the house of Latuivai Lolesio the pulenuu of their village of Saletele, to a campaign rally to be held at Falefa on Saturday, 13 November 2010. The invitation came from members of the respondents campaign committee. On rally day the respondents dyna truck picked up him, another representative of their village, the pulenuu Latuivai and his children and drove them to Falefa. It is to be noted that the villages of Saletele and Sauano are in Fagaloa and are some distance from Falefa and Lufilufi.
[12] It became apparent the rally was a large one involving not only matais but also women and tauleleas of the district ("itumalo"). The organizers including the respondent sat in the main fale and those who could not fit therein sat outside in specially provided tents. Microphones were used to broadcast what was being said inside the main fale. The main purpose of the rally was the introduction and promotion of the respondent to the people of the itumalo and Savea Sione a senior orator of Falefa was the organizer and main speaker. The respondent also spoke seeking the support of the district.
[13] At meetings end envelopes were distributed to the representatives of each attending village. Latuivai Lolesio as the pulenuu for their village received their envelope. They returned to their village and found on opening the envelope it contained $200. He as orator distributed the money $60 to the pulenuu, $30 for the pulenuus wife, $20 to Sameme Tauamo the pulenuus daughter, $20 to her husband Tauamo Fea, $20 to her son Levi Faataui Tauamo, $10 to Peni and $40 for himself. Sameme and her husband Tauamo gave evidence supporting Satoa and confirming their presence at the rally, the distribution at rallys end of envelopes to the participating villages and receipt of their monies at the house of the pulenuu on return to the village.
[14] The pulenuu Latuivai gave evidence as a witness for the respondent. He strongly denied the distribution of envelopes at the rally or receiving money thereafter on returning to their village. But he did accept that post-election on 24 March 2011 the respondent and his campaign committee visited their village and presented $2,000 as a thank you for their support during the elections.
[15] The difficulty with Latuivais evidence is not only that it is contrary to that of his daughter and son-in-law but it is also contrary to that of his grandson Levi Faataui Tauamo. Levi was called as a witness for the respondent and he admitted receiving $20 from Satoa at the house of his pulenuu grandfather. He also said that after the rally their group returned to the house of the pulenuu which is contrary to what Latuivai told the court that the group dispersed immediately after the rally. The respondent and the chairman of the respondents campaign committee Savea Sione also gave evidence on this issue denying the distribution of monetary envelopes at the Falefa rally. But as they are at the heart of this proceeding, their evidence must be scrutinised with great care.
[16] We do not accept Latuivais evidence as the truth of what occurred. We prefer instead the evidence of his daughter, his son-in-law, his grandson and the impressive and entertaining Satoa Ilalio. The campaign rally at Falefa on Saturday, 13 November 2011 to introduce and promote the respondent was a legitimate exercise in seeking votes from electors of the territorial constituency. Word of the rally was spread far and wide by the respondents agents and the rally seems to have been well attended. According to Savea Sione some 600 odd people came. But the giving out of envelopes with money to the participating villages went beyond the bounds of what is legally permissible and in our evaluation constituted an attempt to bribe those to whom, like the petitioners witnesses from the village of Saletele, the money was given. In doing so the respondent and those members of his campaign committee involved in the exercise committed the offence of bribery within the terms of sections 96(3) and/or 96(5) of the Act. The first allegation in the petition is on the evidence we have heard proven beyond reasonable doubt.
(ii) [17] The only witness called by the petitioner in support of this allegation was one Taaloga Simi of the village of Lufilufi. His evidence was that sometime during the month of November 2010 he went to see the respondent about a job. The respondents family owns and operates a beachfront resort in the neighbouring village of Faleapuna known as "Le Uaina Seaside Resort" and the respondent is a well known and successful construction contractor. He said he told the respondent he needed employment to pay off a $250 loan and the respondent gave him $250 in exchange for his vote. He also told him if his election is successful he is to return and the respondent will employ him. His is not related to the respondent and the witness offered no explanation as to why he was treated so magnanimously by the respondent. He did however say in cross-examination that he subsequently worked for the respondent for two weeks but was dismissed for being late twice to work.
[18] No witness corroborated Taalogas testimony. The respondent in his evidence denied knowing or giving any money to Taaloga. We have no difficulty in disbelieving this witness. His evidence was not credible and there is no reason why the respondent would bend over backwards to assist him. He is an ex-employee who was dismissed for tardiness, he has every motivation to lie against the respondent. This allegation is dismissed.
(iii) [19] The petitioner called four witnesses in support of this allegation. The first was Fuauli Aemalo of the village of Sauano who said that at about 8:00pm on the night of Sunday 20 February 2011, a member of the respondents committee one Leiato Fineaso also of Sauano visited his house and tried to persuade him and his family to vote for the respondent. Leiato told him their village had agreed to back the respondent. Fiauli said he told Leiato he was a longtime supporter of the petitioner but this could change if the petitioner did not help him with $200 for an upcoming faalavelave. Leiato assured him that money was no problem for his candidate. This is a sad but entirely believable scenario and is an indictment of the political practices that prevail in our country.
[20] The two men parted and the next day the witness visited the petitioner but had no success as the petitioner was overseas. He returned home and that evening was visited by Leiato and Lesolo Asolua another of the respondents committee members. The men drank kava together at his house with Suimatua Umu another matai of the village who happened to be visiting him at the time. His son Mateo Fuauli was distributing the ava. Fuauli said Leiato handed over $200 which he placed under the mat he was sitting on. Whereupon Suimatua then asked "where was his money" but was met by laughter from the committee. When the ava session was over he counted the money and it was ten $20 notes.
[21] The following Monday, 28 February 2011 Leiato visited him again and reminded him of the coming election. Fuali said that this is the first time Leiato who normally resides in Australia has visited his house and he had no doubt the money was for his vote. Ironically the bribery attempt may have been unsuccessful because the witnesses evidence in cross-examination was he was unhappy his candidate the petitioner did not win.
[22] Fuaulis evidence is supported by his son Mateo the fa'asoa of the ava who witnessed the handover of the money. He also confirmed it was $200. Fuaulis evidence was also corroborated by the visiting matai Suimatua Umu who saw the money change hands. He also said he knows Leiato Fineaso and Lesolo Asolua well because they live close to him and they had informed him they were committee members for the respondent. He has also seen Leiato riding around at least once a week in the respondents white van with the name "Le Uaina Resort" painted on its side.
[23] The fourth witness called by the petitioner was Matamua Tikeri, also a Sauano matai alleged to have been present at Fuaulis house during the ava drinking session on 21 February 2011. However it is clear his affidavit sworn and filed on 11 April 2011 the day before the trial commenced was filed and served on the respondent well out of time and in breach of the courts directions. The argument by counsel that it represents a reply to the respondents counter-allegations is not correct as it does not relate to any of the respondents counter-allegations. We propose therefore to ignore this witnesses evidence as we consider it would be grossly unfair to the respondent to now admit the affidavit into evidence in the exercise of our general discretion under section 115 of the Act. That would amount to letting in through the back door what is supposed to come in through the front. Respondents counsels objection to the affidavit on the basis of surprise was correctly taken. A fair trial requires that a respondent know well before hand all the accusations against him so that he can answer them. There was no prior disclosure of this evidence, the doorway for its inclusion remains firmly shut.
[24] In response to this evidence the respondent called Leiato Fineaso and his sister Vaoese Kava. The former refuted the evidence of the petitioners witnesses and denied being present at Sauano on Monday, 21 February 2011. He said on Mondays he always comes to Apia to attend to various matters and he sleeps over at Vaoese's house at Vailele. That is his normal routine. He also denied riding around in the respondents white van and said he did not support any of the Anoama'a i Sasa'e candidates even though he did vote in the election. A curious statement to say the least.
[25] The primary difficulty with Leiato's evidence is it is not in actuality supported by his sister. Her testimony when cross-examined by petitioners counsel was that there were some Mondays she was not in Apia because she had to travel to American Samoa or to Savaii to see her missionary son, Mondays being the only day he was available. She was adamant Monday, 21 February 2011 was not one of those instances but her evidence of periodic absences from Apia casts doubt on the reliability of that denial. No other witness or witnesses were called to testify on these issues.
[26] We have considered carefully the evidence called for both sides, observed closely the demeanour of the witnesses and have come to the conclusion that the petitioners witnesses are the more credible. We accept their testimony over that of Leiato and his sister. We find this allegation proven beyond reasonable doubt and because the law is that a candidate is responsible for the acts of his agent even the illegal and unauthorized ones, the bribery committed by Leiato Fineaso becomes the bribery of the respondent. As stated by this court in Netzler v Chan Chui [2001] WSSC 18:
"It is settled law that the entrusting to an agent by a candidate of the acts to be done to promote the election of the candidate may either be in express terms or arise from implication. It is not necessary in order to prove agency to show that the person was actually appointed. Recognition and acceptance of service is also sufficient to prove agency.
In circumstances however where the agent has acted illegally, contrary to his powers and authority and without the knowledge and consent of the candidate...the law is that a candidate, however innocent, would be liable and responsible for any illegal acts done by or under the authority of his agent in the sense that the election will be avoided. It makes no difference whether the candidate did not authorize, did not know, or had not consented to the doing of the illegal act. In fact even if the agent acted illegally in defiance of express instructions to the contrary from the candidate, the election of the candidate will be avoided (emphasis ours).
This approach is consistent with the spirit of the legislation that elections should be conducted by honest and proper means and untainted by under hand influences." (again, emphasis is ours)
A very stringent test but one that only serves to show campaign committee members are to be chosen with great care and instructed with even greater perspicaciousness.
(iv) and (v) [27] As these allegations involve the evidence of only one witness they can usefully be dealt with together. The petitioners witness was Penisimani Kapeli a matai of Saletele who said that on 28 February 2011 his car was used to transport members of the respondents committee from Saletele and Sauano in Fagaloa to a meeting at the respondents house at Faleapuna. He stayed and observed the meeting and saw the chairman of the respondents campaign committee Savea Sione give out at meetings end the sum of $1,000 to committee member Punua Alapati from his village of Saletele and $800 to committee member Faafetai Limutau from Sauano village. The respondent was present at the time and said the money was not for their pockets but to be mindful of the electors. ("E le o lau taga ae tautuana tagata palota").
[28] While we consider the evidence of this witness credible the difficulty is it is disputed in every material aspect by Savea Sione, the respondent, Punua Alapati and Faafetai Limutau. Hardly surprising. Punua denied being a committee member for the respondent or at any time riding in the witnesses vehicle and said he was in Apia on the day in question. Faafetai admitted to being a committee member but denied receiving money from Savea on this or any other occasion. The preponderance of the evidence favours the respondent, it is sufficient to raise a reasonable doubt in our minds, these two allegations are dismissed.
(vi) [29] The evidence as to this allegation purports to come from three witnesses called by the petitioner. The first was Mativa Lolo of Lufilufi who was at the time employed by the respondent. He said on Wednesday, 02 March 2011 being the last payday before election day, he saw the respondent give out to four matais of Lufilufi viz, Tusafaaefili Mika, Tusafaaefili Masi, Moemalo Poasa and Faalua Loto the sum of $50 each over and above their pay packets given to them by the respondents son. He also said the respondent told the four matais to be mindful of the elections. He did not mention receiving any money which means that he was probably not considered bribe-worthy by the respondent. He is however an ex-employee of the respondent as his evidence was his service was terminated the week after the election because he did not vote for the respondent. He himself disclosed this to the respondent when asked, not the smartest thing to do.
[30] The other two witnesses called in support of Mativas evidence were Mafoa Tauala and Ioelu Lauina both also ex-employees of the respondent dismissed the same day Mativa was for the same reason. But the affidavits of both these witnesses were not sworn and filed until 11 April 2011 the day before hearing of this petition commenced. As such they were provided late in clear breach of the timetable set by the court and should suffer the same fate as that of the petitioners witness Matamua Tikeri referred to in (iii) above. Their evidence is therefore rejected by the court.
[31] In reply the respondent called the four matais in question as well as the respondent. All denied the allegation. Tusafaaefili Mika said he was no longer employed by the respondent as at the day in question, Tusafaaefili Masi and Moemalo Poasa said they received only their normal wages, and Faalua Loto said he was working on the village Catholic Church hall and did not finish work until 10:00pm that night. We prefer this evidence to that of the petitioners one witness. Even if the evidence of the petitioners two additional witnesses were to be admitted, we would still be of the same view as the evidence of all three witnesses comes from obviously disgruntled ex-employees who would all have an axe to grind as against the respondent. Neither were we impressed by the demeanour of any of them when testifying. This allegation cannot be sustained, it is dismissed.
(vii) [32] The petitioners evidence of this allegation comes from two witnesses. The first was Maevaga Lepaio of Falefa but who normally resides at Tuaefu. She said on Tuesday, 01 March 2011 the respondents van came to her home at Tuaefu, picked up her and her brother and took them to Faleapuna to meet the respondent. They did so and the respondent talked to her about sleeping over at the Resort the night before the ballot in order to help with the cooking. She declined because she had young children to care for but after this conversation, Savea Sione joined them at the table and slipped her some money. He excused himself to go to a committee meeting and subsequently as they were having refreshments, she counted the money. It was $200 which she divided with her brother. The respondents vehicle returned and transported them back to Tuaefu.
[33] Her evidence is supported by her brother Tapu Lepaio who confirmed they went to Faleapuna and talked about the election with the respondent. Also that not long after, Savea came and gave money to his sister before he excused himself to go to a committee meeting. They returned to Tuaefu in the respondents van and his sister gave him $100 of the $200 she had received.
[34] The rebuttal evidence of Savea Sione was that he denied giving Maevaga any money but admitted that there was one occasion when he saw her at the respondents resort. He said he wondered why she was there because he knew she had supported his opponent when he ran in the 2006 general election so was very mistrustful of her presence. He only saw her at the Resort the one time and did not see her brother accompanying her. In those circumstances he said it would be stupid of him to try and bribe her.
[35] Maevaga in cross-examination admitted she was a committee member for the petitioner and that she supported the petitioner. But she said they went to Faleapuna because they were asked to meet with the respondent who had sent his van to pick them up. Her evidence is corroborated by the respondents own witness Savea Sione who admitted seeing her at the Resort on one occasion only. This is crucial support of the evidence of Maevaga who insisted it was Saveas hands that passed over to her the money.
[36] An attempt to win Maevagas support is the only plausible explanation for her presence at the Resort, in the enemy camp as it were, given that she was a committee member for the petitioner. That is consistent with the inference that she was there given money by the respondents campaign chairman. By this part of his evidence the respondents campaign chairman has in our view established beyond reasonable doubt the truth of the allegation in paragraph 6 (vii) of the petition but only insofar as it relates to Maevaga Lepaio as the evidence was the money was given to her. Pursuant to the law of agency Saveas action becomes the action of the respondent who was said to be present in any event. We find this allegation to be proven beyond reasonable doubt but in respect of Maevaga Lepaio only.
(viii), (ix), (x) and (xi) [37] These allegations all relate to acts of bribery allegedly undertaken by various individuals as agents for the respondent at the special votes booth at Savalalo on polling day. To establish them the petitioner called the witnesses Taaloga Simi, Aleni Fiaui and Sulusamoa Moitino. In reply the respondent called two of the alleged agents, Fanualelei Tominiko and Alofa Fouvale and Nuualitia Leti to deny any illegal or inappropriate actions. We do not propose to canvas the evidence of the individual witnesses. Suffice to state that we have carefully considered the evidence of them all and have grave doubts about the truthfulness of the evidence of the petitioners witnesses, especially the unimpressive Taaloga Simi who diligently spent all day at the Savalalo booth probably waiting for someone to bribe him. People who do this should be quickly identified and expeditiously evicted by election officials and/or Police officers manning the polling booths in order to move the nation closer to free and fair electoral processes. We are not satisfied any of these allegations have been proven to the required standard, they are all dismissed.
[38] The final ground of the petition was paragraph 7 which is concerned with the visit by the respondent and senior members of his campaign committee on the night of Sunday, 06 March 2011 to the petitioners house. Where it is alleged they engaged in certain discussions including a request for the petitioner not to petition and the payment of $1,000 for these purposes. A sum which in the overall scheme of things seems a paltry purchase price for a petition. Petitioners counsel indicated as observed earlier that this was not a stand alone ground but was relevant to the issue of the respondents corrupt intent in relation to the bribery allegations detailed in paragraph 6.
[39] We have considered the point carefully and do not agree the events of Sunday, 06 March 2011 assist in evaluating the respondents intent, corrupt or otherwise, or assist in the proof of the requisite mens rea for bribery under section 93. It may constitute offending under section 130A of the Act which makes it a criminal offence to pay or attempt to pay money "to prevent the instigation of an election petition or to cause a withdrawal of an election petition." But that is a seperate matter. Payment of such a sum is not a corrupt practice within the terms of the Act and it is not per se a ground for voiding an election. As such we find all evidence in relation to this Sunday meeting irrelevant and of no import to the present proceedings. In our findings we have paid no regard to what may or may not have happened at the meeting of 06 March 2011.
Respondents counter-allegations:
(i) [40] Manutufatufa Maugatai matai and pulenuu said that on the second Sunday in October 2010, the petitioners wife visited him at his home village of Manunu seeking his support of her husband. He said he has the largest family in the village and whomever he votes for, the family usually follows. He said she told him if her husband is successful he was assured of a ministerial post and as such would be in a position to assist with anything he wants done. She gave him $100 and asked him to bear in mind the election. In return he gave her his phone number for any future enquiries.
[41] This pulenuu also said he received $200 from the petitioner and his wife as a "lafo" at the end of a village meeting called at the couples request at the end of November 2010. As well he received sums totaling up to around $1,000 from various other people for supporting the petitioner but he gave no specifics as to these.
[42] The petitioners wife in her evidence did not deny giving this witness the $100 as described by him but said it was a "lafo" for his co-operation in agreeing to be chairman for their Manunu committee. She agreed he gave her his phone number but said she had no knowledge at the time of the number of electors in his family as the rolls for the territorial constituency had not been finalised. She therefore had no knowledge of any Manunu electors. She denied there was any intent when giving the money to bribe the pulenuu or his family for his/their vote.
[43] The petitioners evidence was along the same vein. He said at all times during his campaign he emphasized that a vote was not something to be bought and sold and that a person should vote in accordance with the whisperings of the Holy Spirit. He denied trying to bribe anyone and said such payments as were made were in the circumstances proper and culturally appropriate.
[44] The Manunu pulenuu who seemed to be collecting money from many different sources we found to be a most credible witness. And his evidence is corroborated by the petitioners own wife who admitted she paid the pulenuu the $100 in question. By her own admission she is an experienced political campaigner. In cross-examination she said she has been doing this for over 30 years, well before her husband came along. This was only his third campaign. She can probably be described as "well seasoned."
[45] As a veteran of politics in the district she therefore obviously knew the pulenuus significance in the village of Manunu. And well knew the importance of securing the support of the family group under his control. Her attempt to portray the $100 as a "lafo" holds little credence. We are satisfied the monies paid to the pulenuu were a bribe within the meaning of sections 96(3) and (5) of the Act. And there being no doubt as to who the petitioners wife was acting for, that bribery by the law of agency inexorably attaches itself to the petitioner. We find the first counter-allegation clearly made out.
(ii) [46] The evidence of this allegation comes solely from Leua Lupematasila of Lufilufi, a relative of the petitioner. She said that in December 2010 she went to the petitioner and his wife seeking monetary assistance for a faalavelave. She wanted to loan $1,000 but was told by the petitioners wife not to bother repaying it but to be mindful of the elections and to support the petitioner. She did so and became a committee member for the petitioner. But differences over other issues arose within her committee leading her to resign therefrom and join the respondents camp. Her further testimony was as a committee member she was given $30/$40 per meeting with the admonition from the petitioners wife to ensure as many people as possible voted for the petitioner.
[47] The petitioners wife denied this evidence and said the $1,000 was her and her husbands "fesoasoani" to the witness because her husband holds three high titles in that side of the family. They did not expect the money back, neither was it a bribe for her vote as she is a relative. Two days after, the witness returned and presented them with an extra large fine mat as a thanks for their assistance.
[48] We found Leuas evidence most unconvincing. By her own admission she was disgruntled with the petitioners committee and had defected to the respondents side. There was also some suggestion that her house was stoned by the petitioners brother the night following the election and that the report by her of this event to the respondent triggered the visit of the respondent and his committee to the petitioners house on Sunday, 06 March 2011.
[49] Furthermore, according to the witnesses affidavit she has been banished from Lufilufi because of the petitioner. But the petitioners wife disputed this saying her banishment was due to her abusive behaviour at one of the polling booths on election day. We are far from satisfied as to her truthfulness and this allegation, it fails and is dismissed. The witnesses statements about committee payments will be dealt with later in this judgment.
(iii) [50] In support of this counter-allegation the respondent called 9 witnesses: Faitaumatau Eli Matavao, Sou Siliato, Loi Alo, Visesio Fanua, Safata Tasi, Samoa Letoa, Valelia Pasitale, Lasela Tuiai and Liuia Matulino. There was some variation as to the details of their evidence but the gist was that pursuant to instructions from the petitioner and his wife, the petitioners Falefa committee met at the petitioners house at Lufilufi on 22 February 2011. Participants were picked up in transport provided by the couple and the meeting occurred in the late afternoon. Thank you speeches and speeches referring to the election were made by the petitioner and his wife and Fanualelei Lafaele the chairman of the Falefa committee and food was served to all present. This was followed by presentations of money $200 to Alaiasa Tavita who spoke on behalf of the attendees, $100 to chairman Fanualelei, $50 to each committee member and $20 to everyone else. Some 50 plus people attended the gathering and all were reminded of the coming election. The petitioners wife also said not to mention the distribution of money outside this gathering as all in attendance were regarded as committee members and therefore entitled to the monies paid to them. No one at the gathering rejected their money. Some of the nine witnesses who testified admitted to being committee members for the petitioner even though they were now giving evidence for the respondent. People switching allegiance seems to be a common thing in Anoama'a i Sasa'e. Others of the witnesses were not committee members. But this did not seem to affect their decision to nevertheless respond to the petitioners "invitation."
[51] The chairman of the petitioners Falefa committee Fanualelei Lafaele also defected and gave evidence for the respondent. He acknowledged receiving money on this and many other occasions, sometimes $50 sometimes $100. He explained the reason for his testimony was because the petitioner and his wife had agreed and reiterated many times that if they lose they would accept it and there would be no petition. ("pe malo pe faiaina e leai se faamasinoga e faia, ae malolo faatamalii.").
[52] The petitioner and his wife did not deny a meeting of the Falefa committee took place at their house on 22 February 2011 but they said that their organizational structure was such that membership in the respective village committees was left solely to their appointees to the committee to determine and consequently they did not know many of the people in the various committees. They therefore asked in the period leading up to polling day for a meeting with all members of the various committees and for Falefa, the appointed time was the afternoon of 22 February 2011. At that meeting they discussed relevant arrangements for polling day such as appointment of scrutineers, transportation of electors, the prohibition against providing food to electors, and such like. There was no issue of securing these electors as they were already committee members and there was no mention of bearing in mind the election ("tautuana le palota") when the money was distributed. The petitioner and his wife admitted monies were paid out but said it was their practice to pay their committee members. In the words of the petitioners wife:
"100 tala Fanua Lafaele o la'u taitai komiti, o matai nai luma e $50 tala, o le lautele e iai tamaitai ia ma taulelea e tai 20 tala and as far as I am concern e le se faatosina, ae o se totogi mo le taimi... these people work for me, they're doing the work, so hard for me, you have to pay them something, or se meaalofa."
The petitioner in his evidence described these monies as "totogi po'o alauni" (wages or allowance).
[53] The petitioner called four witnesses in relation to the 22 February 2011 meeting: Alaiasa Tavita, Upuolevavau Susi Alaiasa, Malaeponapona Tololi and Elei Matavao. All confirmed monies were handed out at the meeting but denied any reference was made to the pending election or to voting for the petitioner. Something that in our view would be very strange given the circumstances of the meeting. They also confirmed the practice of the petitioner and his wife was to pay their committee members at the end of each meeting with them.
[54] We have examined the evidence of the witnesses closely. Clearly the meeting included non-Falefa committee members. That would have been obvious to the petitioner and his wife as this was a gathering of 50 odd individuals. It is unrealistic to suggest any village campaign committee would have so large a membership. The petitioners wife and the petitioner as seasoned campaigners would have been well aware of that. Yet no inquiry or effort was made by either of them to ascertain who these others were and what they were doing at what was supposed to be a meeting of the Falefa committee. After all the invitation was according to the petitioner and his wife an invitation for them to meet the Falefa committee members only. There must have been at least a reasonable suspicion that non-committee members were present at the meeting.
[55] Notwithstanding this the distribution of money was carried out and speeches concerning the pending elections were made. This lends support to the view that the monies were paid out to induce people who were not supposed to be at the meeting to vote for the petitioner, i.e. that bribery of such people was deliberately taking place. And there is no reason to believe that any non-electors would have been at this meeting. This is all consistent with the evidence of the respondents witnesses that references were made by the petitioner and his wife to them to remember the coming election.
[56] On this view of the evidence we are satisfied beyond reasonable doubt that this counter-allegation is proven. We are also of the view that the admitted payments made by the petitioner and his wife to committee members were neither justified, required or appropriate and cannot be construed as anything other than a means of bribing their committee members, if not to give the petitioner their vote then to stay the course and retain their support. Our reasons for this conclusion we deal with in (viii) below which relates specifically to the issue. On this view of the evidence we also find the allegation proven beyond reasonable doubt.
(iv) [57] Fanualelei Lafaeles evidence on this issue was that on 28 February 2011 the Monday of election week, he was given $100 by the petitioner and his wife solely because of the coming election. He said this was the final meeting of their Falefa committee which comprised himself as chairman, Alaiasa Tavita, Malaeponapona Tololi and Faitaumatau Eli. The problem with this evidence is no one corroborates Fanualeleis evidence. The petitioner, Alaiasa Tavita, Malaeponapona Tololi and the petitioners wife all gave evidence denying any meeting occurred on 28 February 2011. And the fourth member of the committee Faitaumatau Eli, a witness for the respondent made no mention in his evidence of a 28 February 2011 committee meeting. We are not satisfied as to this part of the allegation, it is dismissed.
[58] The witness also testified as to a payment of $1,000 made to their committee in late 2010 when elector IDs for the territorial constituency were being processed. Again no-one corroborated this evidence and the petitioners witnesses all denied it. We are not satisfied it has been proven and bear in mind that if such a payment was made at the time IDs were being processed, it was probably intended to cover transportation and other costs incurred in that exercise. Not as a means of bribing the witness or members of his committee. This part of the allegation too is dismissed. The whole of this allegation is therefore dismissed.
(v) [59] Two witnesses were called by the respondent in support of this counter-allegation. The first was Puao Mafi a matai of Manunu who said that on Wednesday, 02 March 2011 two days before the election, Logai Simo a matai and chairman of the petitioners election committee for their village came and said the petitioner was wanting to meet him. He went to the main road together with other Manunu matais and some tauleleas and waited for the petitioners vehicle. They were taken to one of the petitioners houses behind the main house at Lufilufi and there had a discussion with the petitioner and his wife. Preparations for polling day were discussed but in his view the main purpose of the meet was to solicit their support in the coming election and the matais were all given $50 with the admonition for us matais to keep in mind the election ("tautuana mo matou matai le palota"). The witness denied being a member of the petitioners Manunu election committee.
[60] The second of the respondents witnesses was Tolai Solia also a Manunu matai. He confirmed being fetched by Logai Simo, taken to Lufilufi, being told by the petitioner to keep in mind the election and being given $50. He denied being a member of the petitioners Manunu committee and says in his affidavit he is an avid supporter of the respondent because the petitioner has not in all his time in Parliament ever helped the people of Manunu. He also said he was nominated at the meeting to be the petitioners scrutineer for the Manunu booth but he declined. This seems consistent with the petitioners wifes evidence that they were surprised when on polling day this witness did not turn up at the Manunu booth to carry out his duties.
[61] The petitioner and his wife admit there was a pre-election meeting with their Manunu committee but said it was the week before election week. At that meeting the usual monies were given out to committee members including $50 each to Puao Mafi and Tolai Solia. But the couple denied this was to induce or buy their vote and denied saying to the matais to remember the election.
[62] On the view we have taken of committee payments as outlined in (vii) below, we find this allegation proven beyond reasonable doubt. Even if we took a different view, we found the evidence of the above two witnesses credible and sufficient to establish the allegation beyond reasonable doubt.
(vi) [63] We have lumped these two counter-allegations together as they share many common features and were alleged to have been committed during the same trip. The first concerns a payment of $200 to the old blind man Tafili at his house at Falevao. The evidence for this came from his daughter Faaiu Taufafo and his grand daughter Taumaia Esau.
[64] Faaius evidence was that on Thursday, 03 March 2011 the petitioner and his wife paid a surprise visit to their house at Falevao to see her 95 year old blind father Tafili. Although incapacitated he had voted in the 2006 general election. As her father was also deaf she had to speak to explain who had come and the reason for the visit. Significantly, Tafilis incapacity was not known to the couple. The petitioners wifes evidence was they were surprised at how much the condition of the old man had deteriorated.
[65] She said the couple told her they came for the family to be mindful of the coming election ("tautuana ma si o matou aiga le palota"). They reminded the family that the respondent was a new boy but their relationship was not. She said she would talk to her family and wished the couple success. She tried to reject the money but at their insistence took the $100 each for her and her father. Her father gave his money to his granddaughter Taumaia to put away and she gave $20 of her money to each of her sons.
[66] Her further testimony was there were at least 13 electors in their family and her father was the titular head of the family. Her evidence was supported by her daughter Taumaia who also saw and heard what was being said. And the couples request for the familys backing.
[67] The petitioner and his wife did not deny the visit or the giving of the money. But they said Tafili is their relative and the visit was in response to another of Tafilis daughters relaying to them a message in December 2010 that the old man wanted to see them. Because they were busy they did not get around to it until this night when they decided to do so to obtain the old mans blessing to their venture. It was not clear whether the visit was in response to the earlier request or whether it was for the purpose of a blessing. Either way it was something that could have been done earlier than the night before polling day.
[68] The bona fides of the visit is open to serious doubt. And its timing supports the inference that the real motivation was to garner the familys support for the election. We are also unimpressed by the insistence that the petitioner told the family not to force the old man to vote if he was unable to do so. This is so an obvious attempt to portray the petitioner in the best possible light and would not be what any aspiring politician in our view would do.
[69] We accept the evidence of Faaiu and Taumaia. Especially the former who despite intense cross-examination by the petitioners counsel did not waver in her evidence. Her credibility was also bolstered by her answer that the $100 given to her was by way of $20 notes, two of which she gave to her sons. True blessings are not sought the night before an endeavour, it is usually sought at the beginning. And there is no credible reason apparent from the evidence for the couples delay in visiting Tafili. The timing is unfortunate at best, disastrous at worst for them. We are satisfied beyond reasonable doubt as to the truth of this allegation.
[70] As to the second part of the allegation, the evidence is that on the same afternoon the petitioner and his wife also visited Malia Polutele at her home at Falefa. She too is elderly and according to the witness Paulo Ulisese her son-in-law, the couple gave Malia $100. The son-in-law alleged this was bribery because "pau lava ia o taimi e o'o atu ai le ulugalii lea o taimi o palota, ae o seisi lava aso e leai."
[71] The petitioner and his wife did not dispute this visit or the giving of money either. But as the petitioners wife explained, Malias son Malaeponapona Tololi is one of their committee members and she had long been requesting a meeting with the petitioner and his wife. What was not explained was why Malia wanted to meet with the couple. And curiously the affidavit filed by Malaeponapona in answer to the respondents counter-petition allegations makes no reference whatsoever to such a request or to the possible reasons for such a request.
[72] Again we are not convinced the true purpose of the visit was to obtain a last minute blessing from Malia. The evidence is more consistent with the inference that its true purpose was to induce this elector and/or her family to vote for the petitioner and the money was paid towards that end. It would have been otherwise if no money changed hands. But that was not the evidence as admitted to by both the petitioner and his wife. We are satisfied beyond reasonable doubt this allegation has also been made out.
(vii) [73] Many witnesses testified as to the practice of the respondent and his wife to pay their committee members at the end of each committee meeting. The evidence was committee meetings with the petitioner and his wife were not held on a regular basis but they reported periodically to them. Committees held their own meetings and membership and office holders were decided upon by each committee. The petitioner and wife had no say in the matter and preferred to leave it to those they appointed in each village to run their committee independently. Given the ruling of this court in Netzler v Chan Chui cited in paragraph 26 above this was a risky and inherently dangerous practice to follow.
[74] The petitioner and his wife have never denied they paid their committee members. They considered it appropriate and said it was for the time of the members. But no hourly rate or work schedule was set. No accounting by committee members was required. No working hours or working conditions were discussed. No objectives to be achieved or targets to meet were prescribed. The arrangement lacked structure and direction and appeared to be a very loose one with no particular boundaries. The monies paid were certainly not treated as salary or wages by either the couple or their committees. The petitioners wife said the payments could also be described as a gratuity ("meaalofa"). The husband thought it could also be construed as some sort of allowance ("totogi po'o alauni").
[75] People who genuinely volunteer to assist a candidate in his or her campaign do not in our view require to be paid. Neither would they expect to be. Work is done free of charge driven solely by the persons support of the candidate. Payment of reasonable expenses incurred in election campaigning is acceptable. But there is no evidence the monies paid here were for that purpose. Or payable as suggested by petitioners counsel, as a customary gratuity. It is also significant payments were made not at any set time but only at the end of each meeting involving the committee and the petitioner and his wife.
[76] On the issue of a persons intent, Rogers on Elections (20th ed) at page 270 in a passage cited with approval in Vui v Ah Chong [2006] WSSC 52 says:
"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 that case Chief Justice Sapolu said:
"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."
[77] Further on in that case, the court quoted in a passage we consider relevant from Re Election Petition Aleipata (Itupa i Lalo) Territorial Constituency, Tafua Kalolo v Letiu Tamatoa [1970-1979] WSLR 247 where Nicholson CJ at p.249 quoted 'Parker's Powers Duties and Liabilities of an Election Agent' 6th ed, at page 288:
'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."
And earlier at page 286:
"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.'"
[78] Considering all the circumstances we have come to the view that the payments made by the petitioner and his wife to their committee members were for the purpose of influencing those members to either vote for the petitioner or continue their support of the petitioner. The payments were in the terms outlined above a "subtle form of bribery, a pretext adopted to veil the corrupt purpose of gaining or securing the votes of the recipients." We reject the suggestion that they were made as a gift or as an allowance or in return for their time. We find this general allegation proved beyond reasonable doubt.
The decision:
[79] In summary we find the following allegations contained in the petition proven to the required standard:
The other 8 allegations in the petition were not proven beyond reasonable doubt and are accordingly dismissed.
[80] In respect of the counter-allegations brought by the respondent, we find the following proven to the required standard:
The remainder of the counter-allegations against the petitioner have not been proven to our satisfaction and are therefore dismissed.
[81] In view of our finding that the respondent has been guilty of the corrupt practice of bribery we declare his election void in accordance with section 112 of the Electoral Act 1963. We shall report our findings to the Honourable Speaker of the Legislative Assembly.
[82] We shall also by way of a special report pursuant to section 120 of the Electoral Act 1963 raise with the Honourable Speaker our concerns as to how the evidence adduced in this matter showed the increasingly prominent role being played by pulenuus in respect of the campaigns of candidates in their villages. As public officials and appointed representatives of the Government they appear to be displaying a distinct lack of neutrality and have in our view set poor examples for the village to follow in particular the young and impressionable members thereof. It would be our strong recommendation that a Parliamentary select committee review the terms of appointment of such officials with a view to disassociating the office from the ebb and flow of the political process. It is disconcerting that a public official with such high standing in a village should be permitted to use his office to promote political views or a particular candidates agenda. There should in our respectful view be established a clear demarcation between the officials public functions and private status as an elector or voter.
[83] As to the respondents request for certificates of indemnity for his witnesses to issue pursuant to section 123 of the Act, this is refused. It is noted no request to this effect was tendered by any witness prior to their giving evidence.
[84] We will also draw to the attention of the Honourable Speaker our view that if counter-allegations by a respondent against a petitioner are to be permitted then section 107A of the Act should be amended to allow for the prosecution of the respondents witnesses for making false declarations in the course of an election petition hearing. As it presently stands the section is discriminatory in that it only allows for the prosecution of the petitioner and/or his or her witnesses for making false declarations.
[85] Each party in this case shall bear their own costs.
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Honourable Justice Vaai
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Honourable Justice Nelson
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