Toevai v Salevao [2011] WSSC 53 (27 May 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of Electoral Act 1963.

AND:

IN THE MATTER:
concerning the Territorial Constituency of Satupaitea

BETWEEN:

ASIATA WAIRAKI TOEVAI,
of Satufia, a candidate for election.
Petitioner

AND:

TAVU'I TIAFAU TAFU SALEVAO,
of Pitonuu, a candidate for election.
Respondent

Coram: Honourable Justice Vaai
Honourable Justice Nelson

Counsel: T Leavai for the petitioner
S Wulf for the respondent

Hearing: 10, 12, 13 & 16 May 2011
Submissions: 18 May 2011
Judgment: 27 May 2011

JUDGMENT OF THE COURT

The petition:

1. In the 2011 general elections for the Legislative Assembly of Samoa held on Friday 4 March 2011, the petitioner, respondent and one other candidate competed to represent the Territorial Constituency of Satupaitea, which comprises the villages of Mosula, Pitonuū, Vaegā and Satufia. On 14 March 2011 the Electoral Commissioner publically notified the results as follows:
   

Aloiamoa Tua Savaii	98 votes
Asiata Wairaki Toevai	376 votes
Tavu'i Tiafai Tafu Salvao	457 votes
Total Valid Votes	931 votes
Informal Votes	4

Candidate declared to be elected – Tavu'i Tiafau Tafu Salevao

2. The petitioner has brought a petition pursuant to Part X of the Electoral Act 1963 ("the Act") challenging the 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 the period leading up to the election in that he did, by his agent Tavu'i Iose Gray acting at all material times on his behalf, commit acts of bribery by making payments of $20 to various electors of the territorial constituency for the purpose of inducing the said electors to vote for him.
   
3. The petition particularises the acts of bribery to be:
   

"(i) On or about the 25th day of February 2011 at Saleapaga, Aleipata, did by his agent Tavu'i Iose Gray give $20.00 tala to one Lafai Tutonu, an elector for Satupaitea, registration number 419 in the Main Roll of Registered Electors for Satupaitea, in order to induce the said elector to vote for the Respondent;

(ii) On or about the 3rd day of March 2011 at Vaitele-uta, did by his agent Tavu'i Iose Gray give $20.00 tala to one Lagavale Asiata, an elector for Satupaitea, registration number 60 in the Main Roll of Registered Electors for Satupaitea, in order to induce the said elector to vote for the Respondent; and

(iii) On or about the 23rd day of February 2011 at Maluafou, did by his agent Tavu'i Iose give $20.00 tala to one Malaki Malaki, an elector for Satupaitea, registration number 564 in the Main Roll of Registered Electors for Satupaitea, in order to induce the said elector to vote for the Respondent."

4. The petitioner asserts these acts amount to bribery within the terms of section 96 of the Act and therefore pursuant to section 112 the respondents election should be voided. The particular part or parts of section 96 relied on were not cited by petitioners counsel but we assume it be one or more of the categories laid out in sections 96 (3) and 96 (5).
   

The Act:

5. 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."

6. As the respondent has counter-petitioned and raised allegations of bribery and treating on the part of the petitioner, section 97 is also in play:
   

"Treating – (1) Every person is guilty of a corrupt practice who commits the offence of treating.

(2) Every person commits the offence of treating who corruptly by himself or herself or by any other person on his or her behalf, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing any food, drink, entertainment, or provision to or for any person:

(a) For the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or

(b) For the purpose of corruptly procuring himself or herself to be elected; or

(c) On account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting.

(3) Every elector and voter who corruptly accepts or takes any such food, drink, entertainment, or provision also commits the offence of treating."

7. Section 112 of the Act 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."

8. Neither counsel argued the applicability of the law but made it clear in their submissions that the essential issue is the credibility of the evidence adduced and whether it meets the required standard. It is common ground between counsel that the onus of proving allegations of bribery and treating is on he who makes it and the standard is the well established one of proof beyond reasonable doubt.
   

The counter-allegations:

9. The respondent has denied the allegations brought by the petitioner. In addition he has pursuant to section 111(6) of the Act levied counter-allegations of bribery and treating against the petitioner. His counter-petition details the counter-allegations to be:
   

"(i) On the 23rd of February 2011, the petitioner gave $20.00 and 2 packets of kava to Iorina Gray and Katerina Gray intended for their father, Tavui Sailasa Gray, a matai of Satupaitea, an elector, such conduct amounting to the corrupt practice of bribery and treating in that the giving of the $20 and 2 packets of kava was for the purpose of inducing Tavui Sailasa Gray to vote for the petitioner;

(ii) On or about the 23rd February 2011, the petitioner provided morning tea in the form of loaves of bread, butter, tea and packets of kava to the matais of the sub-village of Satufia such conduct amounting to the corrupt practice of treating in that the giving of loaves of bread, butter, tea and packets of kava was for the purpose of inducing the electors of the sub-village of Satufia to vote for the petitioner;

(iii) On the 24th of February 2011, the petitioner gave $10 tala to Teila Kesi of Pitonuū such conduct amounting to the corrupt practice of bribery in that the giving of the $10 was for the purpose of inducing Teila Kesi to vote for the petitioner;

(iv) On or about the middle of January 2011, the petitioner through his agent Lolo Asiata, gave $50 tala to Afano Ologa of Pitonuū, as elector, such conduct amounting to the corrupt practice of bribery in that the giving of the $50 was for the purpose of inducing Afano Ologa to vote for the petitioner;

(v) On or about the 17th of January 2011, the petitioner gave the matais of the sub-villages of Pitonuū and Mosula and in particular Leaoa Talavai, $1000 tala and such conduct amounts to the corrupt practice of bribery in that the giving of the $1000 was for the purpose of inducing the matais of Pitonuū and Mosula to vote for the petitioner."

The petition evidence:

10. The first allegation is that –
    

"On or about the 25th day of February 2011 at Saleapaga, Aleipata, did by his agent Tavu'i Iose Gray give $20.00 tala to one Lafai Tutonu, an elector for Satupaitea, registration number 419 in the Main Roll of Registered Electors for Satupaitea, in order to induce the said elector to vote for the Respondent."

In support of this the petitioner called Lafai Tutonu, his wife Betty Lafai and her father Malalatea Lino, all residents of the wifes family at Saleapaga, Aleipata on the south-eastern cost of Upolu. Lafai is a registered elector for the territorial constituency of Satupaitea in Savaii and went there on election day to cast his vote.

11. Lafais evidence was that on Friday 25 February 2011 at around 6:00 pm he was at home working on his wifes parents extension to their house. His father-in-law called out that a white van with some men inside had pulled up in front of the house. He approached the van and one of the men, Taele Lalomati came out, greeted him and shook his hand. He knew Taele and the van driver Tavu'i Iose Gray and one other occupant of the van Vasa Enosa but not any of the others. Pictures of the respondent adorned the right and rear windows of the van so he knew then this was a visit by the respondents campaign committee. He said he talked with Taele and Tavu'i Iose. Tavu'i generally talked about the election and the candidates for some 20 minutes and told him they would pick him up early on election day. He replied that he was going to Savaii to cast his vote. As they were leaving, Tavu'i Iose turned on the car and gave him a $20.00 yellow note saying it was for food for his children and to remember the election and their new candidate the respondent. He said his father-in-law who was sitting inside the front part of the house saw the exchange because he had a clear view of the van. Although the part about the money being for the children was not in his sworn affidavit, the witness was adamant these were the words used by Tavu'i Iose Gray when handing over the $20.00.
    
12. His evidence was supported by his wife Betty Lafai and his father-in-law Malalatea Lino. The former said she was serving drinks to the carpenters and saw her husband go and talk to the men in the van. When he returned her father asked him if he was "mamafa" (heavy) and the husband chuckled and said he had only received $20.00. So she asked for it for her bingo and her husband replied to use it for food. She confirmed the $20.00 consisted of a single whole yellow note of the new kind. Evidence to the contrary by occupants of the van was put to her in cross examination but her testimony remained unshaken.
    
13. The father-in-laws evidence was that on the day and time in question a white van with men he did not recognize pulled up in front of his house. He called to his son-in-law who went to the van and talked to its occupants. He noticed a picture on the side of the van but could not identify who it was. He surmised that these were an election committee from Lafais territorial constituency. He himself is an elector in the territorial constituency of Lepa. He said the men talked for a while. In cross examination he estimated it to be a half-hour or so and then the driver gave Lafai something. He did not see what it was but guessed it was money. That the van then left and when Lafai came back to the house, he said he must be heavy from his candidates donation to which Lafai replied he had only received $20.00 and showed him a $20.00 note. The evidence of this witness too remained unshaken in cross examination.
    
14. The second allegation in the petition is that -
    

"On or about the 3rd day of March 2011 at Vaitele-uta, did by his agent Tavu'i Iose Gray give $20.00 tala to one Lagavale Asiata, an elector for Satupaitea, registration number 564 in the Main Roll of Registered Electors for Satupaitea, in order to induce the said elector to vote for the Respondent."

In support of this the petitioner called two witnesses: Lagavale Asiata and Piilua Afoa both residents of Upolu.

15. Lagavale is an elector in the territorial constituency of Satupaitea, lives in Vaigaga but is a native of the village of Vaegā, Satupaitea and is a taxi-driver by occupation. He said that on Thursday 03 March 2011 at around 5:00 pm he was playing "mu" (checkers) with fellow drivers at their taxi-stand at Vaitele when the base telephone operator Piilua Afoa called out that there was a man outside waiting to see him. He went out and saw it was Tovia Taugasulu a relative of his mother. That they walked towards a white van in which were seated the driver Tavu'i Iose Gray, next to him Faleao Sekone and in the rear Kolio Agamaitu, Vasa Enosa, Taele Lalomati and others he was not acquainted with. He well knew Tavu'i Iose because he had run in the 2006 general election in their territorial constituency. He greeted them all and Tovia introduced him. Tavu'i Iose then asked him if anyone had visited him about the election and he replied only a visit the previous month by the petitioners committee. Faleao Sekone then told him that although Vaegā were backing the petitioner, the young people did not know him but only the respondent who had done much for the village. His relative Tovia pressed him to vote for the respondent and to remember his mothers relatives live in Pitonuū which was backing the respondent. There was also a reference to one of his uncles as being part of the committee but who was unable to attend as he was ill. Upon leaving, Tavu'i Iose gave him $20.00 saying it was not a bribe but for food and to remember to vote for the respondent. Tavu'i Iose offered to pick him up on election day but he told him he had his own transportation.
    
16. He rejoined his compatriots in the taxi stand and boasted about the $20.00 from the campaign committee of one of his candidates. He said Piilua suggested to use the money for drinks but he declined. Evidence to the contrary by the vans occupants was put to the witness but his testimony remained unchanged. Significantly he stated in cross examination he has no connection to the petitioner.
    
17. The witnesses evidence was supported by that of the base telephone operator Piilua Afoa. He said Lagavale was at the other end of the building playing checkers with colleagues when the man came. He called out to him and Lagavale went out to the man. He also saw outside a white van with men inside. That when the van left, Lagavale returned and told him about the $20.00 from the committee of one of the candidates of his constituency. In cross examination he said Lagavale showed him the actual $20.00. He suggested to use the $20.00 for some drinks but Lagavale laughed and left and that was the last he saw of Lagavale that day. Evidence to the contrary from the van occupants denying such a visit was put to the witness but he maintained his testimony.
    
18. The third allegation in the petition is that –
    

"On or about the 23rd day of February 2011 at Maluafou, did by his agent Tavu'i Iose Gray give $20.00 tala to one Malaki Malaki, an elector for Satupaitea, registration number 564 in the Main Roll of Registered Electors for Satupaitea, in order to induce the said elector to vote for the Respondent."

The evidence of Malaki Malaki who lives in Fagalii but is registered to vote in the territorial constituency of Satupaitea was that on Wednesday 23 February 2011, he received a call from the receptionist at his workplace of SamoaTel at Maluafou that there was a man wanting to see him. The telephone was handed to a person who identified himself as Vasa Enosa, a matai of Satupaitea he knows well who asked him if he could return to the office as the matter was urgent. He said he turned back and on arrival at Maluafou saw Vasa Enosa standing beside a white van with men inside that he did not recognize except for one. Tavu'i Iose was in the drivers seat and there was a picture of the respondent on the right rear window. He surmised they were there to discuss the election and when Vasa told him the picture was that of their candidate he responded "oh good I will now get some money for lunch today." Tavu'i Iose pulled out $20.00 which was handed to him with Vasa saying that was for his lunch but to remember to vote for their candidate. Evidence by the van occupants denying such discussions was put to Malaki but despite determined cross examination by counsel he remained firm in his testimony.

19. Malakis evidence is supported by the evidence of the receptionist Fuatino Faumuina. She is a registered elector of the territorial constituency of Lefaga and has worked at SamoaTel for 8 years. She said on the day in question between 8:45 and 9:00 am a man came to the front desk identifying himself as one of a group of matai from Satupaitea looking for Malaki Malaki. When told he was not there he asked if he could be contacted so she rang Malaki. Malaki asked to talk to the man so she passed him the phone and carried on serving other clients. She did not hear their discussion but after the man handed back the phone, he exited the building and went with other men and stood outside underneath a "niu" beside which was parked a van. Some 15 minutes later she looked up and saw Malakis vehicle parked behind the van and Malaki talking to the men. She was too far away to hear their conversation. Contrary evidence was put to her in cross examination by respondents counsel but her primary evidence remained unchanged. If anything it was reinforced by cross examination.
    

The respondents reply:

20. In response to the petitioners evidence the respondent called a number of the van occupants. The primary witness was Tavu'i Iose Gray the alleged agent of the respondent and the alleged main player in all three of the petition allegations.
    
21. In relation to agency, he denied being an agent of the respondent. He said the respondent is his nephew but he was not a member of the respondents Upolu campaign committee. That committee was chosen by the Alii and Faipule of Pitonuū and the reason for there being so many (ten in all) was because some knew where some electors lived and others knew where other electors lived. He accepted the committee lived at his house in Upolu for the three weeks immediately prior to the election and that he was responsible for their maintenance and upkeep but said that this was his function in accordance with Samoan custom and tradition as a good matai of the village resident in Upolu. He insisted he was nothing more than the committees driver but conceded he had photos of the respondent displayed on his vehicle and that he paid for all the petrol and running costs of the van. He also said he drove the committee to and from the ferry to Savaii in the weekends.
    
22. Some excepts from his evidence:

"Leavai	ae o lea ete saunoa mai e le'o oe o se sui o le komiti?
Wit	o lea lava, e le'o a'u o se sui o le komiti, o au o le ave taavale.
Leavai	e faafefea ona e le sui o le komiti a tiute taua uma lea na'e amata mai ai le amataga, o oe e tausia i latou, e aveina le taavale, tou te feoai uma.
Wit	tu faasamoa a iai ni malo e taunuu mai se aiga o oe e gafa mo le tausiga, o lea foi la ua lafo mai le faamoemoega a le matou nuu,o tavui o a'u o le matai i pitonuu satupaitea, vaai le komiti, aua nei faaletonu le komiti, vaai se taavale lelei e feoai ai le komiti, o mea uma e tatau i tagata pe a faapea ete tausi malo, o mea ia ete faia iai latou, o au e le'o se komiti, o au o le ave taavale a le komiti, lea foi e nonofo i lo'u fale o le tu ma aga faasamoa e tausi ae ona o lea ua e faafesili mai poo mea uma ia ou te faia tusa o lea ua ou involve i totonu o le komiti, e le sa'o lea faaupuga leaga o lea ua ofo la'u taavale ma lo'u taimi ona o si o'u tei lea ua alu i le palota, e le mafai ona omai tagata komiti omai nofonofo solo i le taulaga ae o'u alu i lo'u fale o'u nofonofo ai seiloga ou te sau e piki faatoa matou o, o le ala lea na ala ai ona matou mafuta i le fale, fuafuaga uma aua le faamoemoe.
Leavai	le komiti lea na'e taua e 3 foi vaiaso o nonofo le tou fale
Wit	leai e oo loa le aso toonai ia o'u alu loa momoli e aso sa foi komiti io latou faletua, aiga ma nuu o loo faamuli mai i salafai, ona ou toe alu foi lea i le taeao o le aso gafua e aumai matou te galulue sei oo foi le aso toonai toe o, aso gafua faapena ona faatino le galuega seia oo lava i le aso o le palota."

23. In respect of the first petition allegation he admitted the committee visited Lafai at Saleapaga but denied speaking to him or giving him any money. He accepted however that some committee members went out of the van and spoke to Lafai about the election and their candidate.
    
24. In relation to the second allegation he denied knowing Lagavale Asiata and any committee trip to Lagavales taxi-stand at Vaitele-uta.
    
25. In respect of the third allegation he also denied knowing Malaki Malaki but accepted that the committee visited the SamoaTel offices at Maluafou on 23 February 2011. He said the visit was to see another elector of the territorial constituency, one Tiafau Douglas Creevy a manager for SamoaTel. He accepted Vasa Enosa was in the van but said it was Kolio Agamaitu who went inside and enquired as to the whereabouts of Mr Creevy. He returned saying Creevy could not be located so they left. He denied speaking to or giving Malaki any money.
    
26. Both Vasa Enosa and Kolio Agamaitu gave evidence confirmatory of Tavu'i Iose. Vasa said it was Kolio who went inside looking for Creevy not him. Kolio said he went into the reception and talked to the receptionist. She told him Creevy was not in the office and there was no telephone contact number for him. That he exited the building and as their van was pulling out, Malaki Malaki drove into the parking area and spoke to them while they were reversing. He did not get out of their vehicle and neither did Malaki leave his. In what was substantially an identically worded affidavit, Vasa agreed with him.
    
27. Two other occupants of the van gave evidence again in identically worded affidavits. They testified concerning all three trips. These two were the committee chairman Faleao Sekone and committee member Taele Lalomati. In relation to the Saleapaga visit to Lafai Tutonu, their evidence accorded word for word with that of Tavu'i Iose Gray. The trip was to speak to Lafai about their candidate and no money changed hands. They also denied visiting Lagavale Asiata at his taxi-stand at Vaitele-uta but admitted their committee visited many other electors in Upolu and that their aim was to spread the word about their candidate in the short time available. In respect of Malaki Malaki they accepted visiting SamoaTel but said it was for the purpose of contacting Tiafau Douglas Creevy whom they subsequently tracked down at his Moataa home. There was no evidence they revisited SamoaTel.
    

Corroboration:

28. Central to the matter of credibility of the witnesses for both the petitioner and the respondent in this case is the issue of corroboration of the evidence of one witness by another. As there is some dispute as to what constitutes corroboration in law, it is prudent to settle this argument before embarking on an analysis of the evidence.
    
29. Both counsel accept that corroboration of the evidence of an accomplice is required and that although the court can convict on the basis of the uncorroborated evidence of an accomplice, it would be dangerous to do so: Davies v DPP [1954] 1 AllER 507 (HL), applied in Vaili v Salesa [1996] WSSC 9 and in many other election cases. Furthermore that there is no rule against mutual corroboration by two witnesses each of whose evidence requires corroboration: Petition re Aleipata-Itupa-i-Lalo, Tafua Kalolo v Letiu Tamatoa [1970 – 1979] WSLR 247 and subsequent authorities. But respondents counsel argues that the corroboration must relate directly to the core of the offending, in this case the giving of the money, before it can be held to be effective.
    
30. We have considered the submission. In particular that it must mean that if there is corroboration in relation to other aspects of a witnesses testimony but not in respect of the giving of the money, there is therefore no corroboration of the witnesses testimony. This cannot be correct. For that would mean for example that of the six things a witnesses evidence may cover, if four or five matters are corroborated but not the one core element at the heart of the offending, here the giving of the money, then that would amount to insufficient corroboration. That should not be and in our view is not the position of the law.
    
31. The test to be applied was laid down by Lord Reading, Chief Justice in R v Baskerville [1916] 2 KB 658 when he said in delivering the judgment of the court:
    

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true...." (italics are ours)

See Police v Silipa [2009] WSSC 81 and the recent review of authorities conducted by Chief Justice Sapolu in Police v Tanielu [2010] WSSC 134.

32. "Corroboration" has no technical meaning: it means merely to 'support' or 'confirm'. See DPP v Hester [1972] 3 AllER 1056, 1070 per Lord Pearson:
    

"The word "corroboration" in itself has no special legal meaning; it is connected with the Latin word 'robur' and the English word 'robust' and it means 'strengthen'; perhaps the best synonym is 'support''';

And Lord Diplock at 1073:

"An examination of the basic 19th Century cases makes it plain that in the judgments, 'corroboration' was not used in any other sense than 'confirmation'. This is the expression actually used in six out of the seven cases approved in R v Baskerville. Even in R v Baskerville itself the terms 'corroboration' and 'confirmation' are used interchangeably."

33. It is on this basis that the evidence adduced by the witnesses for both the petitioner and the respondent in this case will be assessed.
    

Agency:

34. The other issue of substance raised in these proceedings relates to the status of Tavu'i Iose Gray. He is alleged to be the agent of the respondent and responsible for handing out all three bribes. He vigorously denied such status and action.
    
35. We have no difficulty in concluding that he was a committee member and agent for the respondent in every respect except in name. He did everything the committee did in the course of the three week pre-election campaign in Upolu, he went everywhere they did, did everything they did, he had photos of the respondent affixed to his van, personally drove the committee to visit the electors for the territorial constituency resident on the island, he housed them, fed them and provided for all their needs at his own expense, he dropped them off and picked them up from the Savaii ferry every weekend, and he met out of his own pocket the petrol and other running costs of his vehicle whilst they were out on the campaign trail. The sum of these things portray his status and there is no doubt a reasonable and impartial observer would conclude he was doing all this for the respondent and for the purposes of his nephews election campaign. Those who believe he was merely "a driver" live in fantasyland.
    
36. As stated previously by this court in Petaia v Pau [2007] WSSC 19:
    

"The principles of the law of agency in election may be summarized as follows:

(a) A person may become an agent in either of two ways:

• (i) by actual appointment or employment.
• (ii) by recognition and acceptance.
  

(b) In determining the question of agency all the circumstances must be taken together.

(c) Entrusting to an agent of acts to be done may be in express terms or arise by implication.

(d) The candidate is responsible for all misdeeds of the agent committed within the scope of his authority although done against his express directions and even in defiance of them."

37. This follows Netzler v Chan Chui [2001] WSSC 18 where it was held:
    

"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.

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."

38. These principles were recently restated and applied in Election Petition Territorial Constituency of Anoamaa-i-Sasa'e, Lufilufi v Hunt judgment dated 26 April 2011, see paragraph 26 and in Election Petition Territorial Constituency of Vaisigano No.1, Tufuga v Vaai judgment dated 10 May 2011, where at paragraph 63 it was said:
    

"We see no reason to depart from the earlier authorities of this court. The present Election Court differently constituted has applied the principles in Moefa'auo Lufilufi v Alaiasa Schwartz Hunt (supra). It is the corrupt actions of a candidate or persons acting on his or her behalf which vitiates an election because an election must be, so far as is possible, free and fair. Vitiating an election is a serious step requiring courts to be careful in determining the question of agency in the circumstances of each case. Vitiation of an election is governed by the public need for fair election rather than culpability of the candidate."

39. These principles are settled but are well worth repeating. Applying them to the present case leads to the inescapable conclusion that whether he admits it or not, Tavu'i Iose Gray was for election purposes, not expressly but by implication the agent of the respondent. As noted by the Chief Justice in Vui v Ah Chong [2006] WSSC 52: –
    

"Often in this context, actions speak louder than words."

With the consequence that any and all acts legal or otherwise carried out by Tavu'i Iose Gray in the course of that agency, whether known or sanctioned by the respondent, are in law deemed to be the acts of the respondent.

The petition decision:

40. We were not impressed by the witnesses for the respondent. Their credibility was dented at the outset by the filing of identically worded affidavits even down to the last comma and full-stop and containing the same grammatical errors. This was not helped by the fact that all their affidavits which they reconfirmed on oath in court were in English, clearly the second language of the witnesses. We are certain their accounts were not given to the preparer of the affidavits in English. Such affidavits are of minimal to no evidentiary value.
    
41. We are also mindful that Tavu'i Iose Gray has been singled out as the primary player in the petition allegations. As such his denials requires strong and cogent corroboration. That provided by the gang of four committee members who did testify fell well short of this, fell well short of what the authorities term "corroborative evidence of such a convincing, cogent and irresistible character." The respondents witnesses suffered from a natural bias of one form or another, Tavu'i Iose Gray because the respondent is his nephew and the other four because they are admitted members of the respondents campaign committee and obviously were and are supporters of the respondent. They have every reason to be committed to the respondents cause and their evidence must be evaluated with that in mind. Their believability was not enhanced by the revelation from the respondents own witnesses that since the beginning of the trial they and the respondents other witnesses have been "in camp" at the HRPP Hall down the road. Rather like a little mini-party.
    
42. Our review of the evidence leads us to the following conclusions: in respect of petition allegation (i) concerning the trip to Saleapaga, the evidence of the petitioners witnesses are not only mutually corroborative but are supported by the respondents committee members who accepted that their committee visited Lafai Tutonu at his father-in-laws house at Saleapaga, Aleipata and discussed with him matters concerning the candidacy and election of the respondent. In respect of petition allegations (ii) and (iii) involving visits to the Vaitele-uta taxi-stand and the SamoaTel premises at Maluafou, the evidence of the main witness in each instance was corroborated by a bi-partisan independent person. In the case of Vaitele-uta by the taxi-stand telephone operator who confirmed the visit and the subsequent boasting by Lagavale Asiata of receipt of $20 from the committee of one of the candidates for his territorial constituency; and in the case of SamoaTel by the office receptionist who said men in a van parked beside a "niu" - obviously a reference to the palm tree growing adjacent to the car-park and directly opposite the SamoaTel front entrance - came looking for Malaki Malaki and spoke to Malaki Malaki on the phone and later personally in the car-park. This witness also soundly denounced the suggestion that the group were there to see Tiafau Douglas Creevy because at the time, Creevy was not employed by SamoaTel. He worked for BlueSky in American Samoa and only joined SamoaTel after the BlueSky takeover of SamoaTel in March 2011. This should have been known to the committee. We also did not find Kolio Agamaitus evidence credible since if Creevy held a senior managerial position in SamoaTel, it is inconceivable that a telecommunications company would have no means of contacting him or way in which a message could be relayed to him. The response of the various witnesses to questions from the Bench on the issue of Creevy were also at times contradictory and unsatisfactory.
    
43. All in all and after giving the matter due consideration, we prefer the evidence of the witnesses for the petitioner. Theirs was delivered better, was the more credible and remained unshaken by forceful cross-examination. The minor contradictions in their evidence were exactly that, minor and are to be expected. We also found the corroborative evidence to be "of such a convincing, cogent and irresistible character" and more than sufficient to prove beyond reasonable doubt that the respondents agent Tavu'i Iose Gray did on all three occasions hand out $20 bribes to the various electors as pleaded. The petition allegations are found to be proven. Pursuant to the above cited principles of the law of agency, the bribery of the agent becomes the bribery of the respondent even though these actions were unknown to him. The petition succeeds, the respondent is found guilty of three counts of the corrupt practice of bribery, and his election is declared void pursuant to section 112 of the Act.
    

The counter-allegations:

44. The first counter allegation is that –
    

"On the 23rd February 2011, the Petitioner gave $20.00 and 2 packets of kava to Iorina Gray and Katerina Gray intended for their father, Tavu'i Sailasa Gray, a matai of Satupaitea, an elector, such conduct amounting to the corrupt practice of bribery and treating in that the giving of the $20 and 2 packets of kava was for the purpose of inducing Tavu'i Sailasa Gray to vote for the Petitioner."

In support of this the respondent called four witnesses: the two twin sisters Iorina and Katerina Gray whom are the daughters of a cousin of the respondents main witness Tavu'i Iose Gray, their father Tavu'i Sailasa Gray and Iasoni Toala a relative of the petitioner who was driving the petitioner around on 23 February 2011.

45. The evidence of the two girls given in identically worded affidavits was that they work in a shop at Pitonuū owned by the petitioners relatives and located opposite where the petitioner stays when he visits Satupaitea. And that the petitioner when he comes to the shop was in the habit of giving them $10 each with the instruction to give it to their mother who is named after the petitioners mother and to tell her to remember the elections. He did this a number of times in 2010/2011 but the girls could not agree on how many.
    
46. On 23 February 2011 the petitioner visited the shop and purchased a large quantity of bread, butter and kava for the village of Satufia. On that occasion he gave them $10 each plus 2 packets of kava but told them this time to take it to their father and tell him to remember the election. This they did repeating to their father the petitioners exact words. They also said that Iasoni Toala was driving the petitioner that day but contrary to what Iasoni said, no-one else was in the car. Their evidence also conflicted with Iasoni in that they said the 2 packets of kava bought by the petitioner was given to them whereas Iasoni testified it was taken to the Satufia village meeting.
    
47. Their further testimony was that the following day 24 February 2011 the petitioner revisited their store and gave them $10 each instructing them to take it to their parents and tell them to remember the election. They said the petitioner also gave out money to other people in front of the shop saying to remember the election. In amplification of their evidence in court they said they opened the store that morning at about 7:00 am but were in conflict as to the number of people present when the store opened.
    
48. The girls evidence also significantly conflicted when Katerina in cross examination said her father came to the store that morning of the 24 February 2011 to buy some sugar. This was not mentioned by her sister and the affidavits of both girls makes no reference to a 24 February 2011 visit to the store by their father. This evidence was also hard to reconcile with their previous testimony that on that day, the petitioner gave them the money to take to their parents. It is also difficult to reconcile with their fathers in court evidence that on that morning, he followed the girls to the shop and was there given the money directly by the petitioner. Who also gave out monies to other people in front of the store. Both these matters were not mentioned in the fathers pre-trial affidavit either. Yet it goes to support the counter-allegation of bribery being committed by the petitioner.
    
49. These were not the only difficulties we had with the evidence of the girls and their father whose pre-trial affidavit only referred to those matters that occurred before the morning of 24 February 2011. There was also uncontested evidence that the petitioner on the morning of 24 February 2011 was attending a Land and Titles Court hearing in the Court Building at Mulinuu, Apia. As observed by the Bench, in the absence of airplane travel, it is highly unlikely a person could be at Satupaitea, Savaii around 7:00 am, do what the petitioner is alleged to have done in front of the store, make the 30/40 minute trip to catch the 8:00 am ferry to Upolu, allowing one hour 15/20 minutes (usual trip time as the smaller ferry services the 8 am run from Salelologa) for the crossing and one hour from Mulifanua Whart to Mulinuu, to make it in time for a 10:00 am start of court proceedings. It may be possible but in the absence of evidence as to road conditions, whether there was in fact an 8:00 am ferry crossing that morning and such like, we are of the view that in the ordinary course of events, even driving like a madman, one could not do it. The best that can be said is many possible variables would have to coincide to render it achievable.
    
50. The issue of the dates of 23 and 24 February 2011 also raised its head. The girls and their father admitted they did not keep diaries or other written records and they could not explain why they specifically recalled what happened on those particular days. The following passage is from the evidence of the not uneducated 19 year old Katerina Gray which is similar to evidence given by her twin sister in cross examination:

"NJ	jst b4 u move along counsel, o le a le mea e te manatua ai o le aso 24 sa iai Asiata i Savaii?
Wit	o le aso 24 lea na toe usu atu ai ma fai lana faatau ma tuuina atu le ma tai 10 tala.
NJ	ioe ae o le a le mea ete manatua ai o le aso 24 ae le'o le aso 25 poo le aso 26 o Fepuari o le a le mea lea e mautinoa ai i lou mafaufau o le aso lea na alu atu ai Asiata ma fai tulaga lea, o le aso 24 Fepuari?
Wit	o la'u faamatalaga lava ua tusia i totonu o le aso 24 Fepuari ua ou folo lava iai.
NJ	o lona uiga ete fai mai o le aso 24 ona o le mea lena lea ei totonu o lau faamatalaga?
Wit	ia o lea lava
NJ	o ai e ona le faamatalaga lea?
Wit	o au lava
NJ	ia ta toe fo'i la i la'u fesili, o le a le mea ete mautinoa ai o le aso lea o le aso 24 ae le'o le aso 25 poo le aso 26 lea e te taua
Wit	o le aso 24 lava lea na ou vaai ai ia Asiata i luma o le faleoloa.
NJ	ae o le a le mea ete iloa ai o le aso 24 ae le'o le aso 25 poo le aso 26, leaga o lea e iai mau i luma o le faamasinoga, o lea foi ua ioe iai le loia lea na valaauina lau molimau o le aso 24 sa iinei asiata i mulinuu, o le mafuaaga lena o le fesili katerina o lea e faatauto, aua a sese e mafai ona e falepuipui. Ta toe foi i la'u fesili, o le a le mea e te manatua ai o le aso 24 ao lea e fai mai uma isi tagata na'o oe lava ma lou uso lea e fai mai sai Savaii ae o isi tagata lea e fai mai sai iinei Upolu le tamaloa.
Wit	o le aso 24 lava lea oute tau iloaina
VJ	e te manatua au mea na fai i le aso 27
Wit	e leai
VJ	o e manatua au mea na fai i le aso 20?
Wit	e leai
VJ	o e manatua au mea na fai i le aso 13.
Wit	e leai
VJ	a'o le a le mea ua e manatua ai au mea na fai i le aso 24, o se aso na ta'u atu e seisi ia te oe?
Wit	e leai
VJ	ae o le a le mea ua e manatua ai au mea na fai le aso 24 ae e te le manatua au mea na fai i leisi aso
Wit	o le aso 24 ma le aso 23 lea ou te mafaufau iai.
VJ	lena oute iloa, ae aisea le mea e te manatua ai le aso 24 ae e te le manatua isi aso, lelei faafetai e le mafai ona

tali le fesili, counsel?"

The fathers evidence fared no better. In a particularly telling passage in response to questions from the Bench, he said:

"VJ	aisea ua e manatua ai au mea na fai le aso 23 ma le aso 24? E iai se mafuaaga ua alai ona e manatua nei aso ma au mea na fai ai?
Wit	ono le aso 23 lea na ou iai le fale ae o atu la'u fanau ma le seleni ae o le aso 24 na ou savali mai ai ii e fai atu se faatau.
VJ	ioe e te manatua au mea na fai le aso 25?
Wit	o lea lava
VJ	ete manatua a?
Wit	o lea lava
VJ	ae a le aso 27 ete manatua?
Wit	oute le manatua la
VJ	ae a le mea ua e le manatua ai le aso 27 ae ete manatua au mea na fai le aso 23?
Wit	ou te manatua mea na fai le aso 23 ona o lea sa ou ii le taimi lea.
VJ	ae o fea sa'e iai le aso 27?
Wit	sa ou iai foi ii le matou nuu.
VJ	ia poo a au mea sa fai?
Wit	ou te alu i le maumaga
VJ	i le aso 27?
Wit	o lea lava lau afioga.
VJ	ae a le aso 13?
Wit	o au ou te gafa ma le maumaga sei vatu le paia
VJ	e maumaga i le aso 13
Wit	o lea lava
VJ	o le a lau ekalesia?
Wit	le aupaia o aso e gata ai.
VJ	ete le alu i le lotu? o aso ia e lua na ou fai atu ai o aso sa. Vaai la i le vave o lau pepelo ae le sei mafaufau muamua, aso 27 ma le 13 o aso sa.
Wit	lau afioga ona ou te

le'o manatua ni aso."

51. The more probable explanation was the witnesses were lying and that they were given these dates to testify about. This concern led us to deliver the following ruling:
    

"1. Two witnesses in these proceedings, Iorina Gray and Katerina Gray testified that on the morning of the 23rd and 24th February 2011 the Petitioner Asiata Toevai came to their shop at Pitonu'u, Satupaitea and gave them money to give to their parents, electors in the Satupaitea Constituency.

2. In preparation for the trial they both swore affidavits which were produced at the trial and which confirmed the events of the 23rd and 24th February 2011 at the shop at Satupaitea.
   
3. Tavui Sailasa Gray, the father of Iorina and Katerina also testified that he was given money by the Petitioner at the same shop at Pitonu'u Satupaitea on the morning of the 24th February 2011.
   
4. All the three witnesses testified for the Respondent Tavui Tiafau Salevao.
   
5. During the course of the trial counsel for the Respondent conceded that the Petitioner was at Upolu on the morning of the 24th February 2011 attending to a court case at the Land and Titles Court Mulinuu. As a consequence he withdrew one of the allegations in the counter petition which states:
   
   • (iii) On the 24th February 2011, the Petitioner gave $10 to Teila Kesi of Pitonu'u such conduct amounting to the corrupt practice of bribery in that the giving of the $10 was for the purpose of inducing Teila Kesi to vote for the Petitioner.
     
6. Testimonies by the Petitioner and his witnesses Fata Simone as well the record of proceedings in the Land and Titles Court on the 24th February 2011 provides convincing proof that the Petitioner could not have been at Pitonu'u Satupaitea on the morning of the 24th February 2011. But the three witnesses insisted he was at Satupaitea on the 24th February even after counsel who prepared their affidavits and called them to the stand has conceded that the Petitioner could not have been at Savaii.
   
7. The oath must be taken seriously. The two young girls cannot be encouraged to think that they can tell deliberate lies under oath and escape the consequences.
   

Order

(a) The affidavits of the two girls and the transcript of their testimonies shall be forwarded to the police for investigation and if appropriate, laying of perjury charges against them.

(b) The affidavit of the girl's father Tavui Salaisa Gray and the transcript of his evidence shall also be forwarded to the police for investigation and if appropriate, laying of perjury charges against him.

(c) The affidavits of the Petitioner Asiata Wairaki and Fata Simone together with copies of the transcript of their evidences shall also be forwarded to the police to assist in the investigation of perjury charges against the two girls and their father.

(d) Copies of the transcript which record the exchanges between the bench and counsel for the Respondent leading to the withdrawal of the allegation of the 24th February 2011 by Teila Kesi shall also be forwarded to the police to assist in their investigations.

(e) The court will also consider whether to cite Counsel for the Respondent for attempting to mislead the court or for improper conduct when he knowingly called witnesses to testify to a fact which he himself believed to be incorrect and to which he conceded to be without foundation."

52. We are advised the matter has been referred to the police for investigation in accordance with the ruling. As for respondents counsel we consider he was duped into believing without questioning the veracity of the witnesses statements about the events of the morning of the 24 February 2011. Experience will teach him otherwise. Lawyers should always consider the possibility that their witnesses may be lying and the implications that can have not only on the witness but also for counsel concerned. We do not propose to take the issue further.
    
53. The fathers evidence in other respects was also unconvincing. The excerpt below from his evidence shows how it conflicted with that of his daughters:

"NJ	o le aso 24 lea ete faapea na'e alu atu ai ete faatau suka ae o lea na avatu ai le tupe lea?
Wit	o lea lava lau afioga.
NJ	e fia le tupe na tuu atu?
Wit	e $10 tala
NJ	ae o lea e aumai i faamatalaga a ou alo e $20 tala na tuu atu ia te oe i le aso 24.
Wit	i tei ua galo ia te au ae ou te manatua lau afioga.
NJ	i galo ia te oe ae o lena ete manatua, le a le uiga o lena tali?
Wit	i tei ua galo ia te au le seleni ae o lea ou te manatua na tuu mai e le toeaina ia te au le seleni.
NJ	o lena ete manatua lea na'e fai mai e 10 tala na avatu ia te oe, ae o le fesili lea e fai mai ou alo e 20 tala, o ai o outou lea e sa'o?
Wit	lau afioga nei te'u ua galo ia te au le seleni ae o lea ou te manatua na tuuina mai le seleni ia te au.
NJ	oi e sese la oe?
Wit	ia tei ua sese lava a'u, e pei na ou fai atu tei ua galo ia te au le seleni.
NJ	na logo i le loia le tulaga lea, le mea lea i le aso 24, na ta'u i le loia?
Wit	na ou avea i la'u faamatalaga le aso 23, 24.
NJ	o le mea lena lea ou te fesili atu ai, leaga e le'o ii lau faamatalaga, pau le mea lea e ii lau faamatalga o le aso 23 ae leai se vaega o taua ai se aso 24.
Wit	o lea oute manatua o le aso na ou sau ai e fai le faatau.
NJ	na'e tau i le loia le aso 24?
Wit	ou te lei tauina i le loia ae o lea ou te tauina atu i luma o lau afioga.
NJ	oi e le'i taua i le loia.
Wit	o lea ua uma ona tusia i la'u faamatalaga le aso 23 ma le aso 24 tailo la i le loia pe na ia tusia.
NJ	ae na ta'u i le loia?
Wit	o lea lava
NJ	na logo i le loia a, ae e te le malamalama poo le a le mea ua le tuuina ai i totonu o lau faamatalaga?
Wit	o lea lava

ma lo'u faaaloalo tele lava."

54. The passage also shows towards the end how he changed his evidence during questioning from 'I did not tell the lawyer about the events of the 24th' –

"NJ	na'e tau i le loia le aso 24?
Wit	ou te lei

tauina i le loia ae o lea ou te tauina atu i luma o lau afioga."

to 'I told the lawyer but do not know why he did not include it in my statement' -

"NJ	oi e le'i taua i le loia.
Wit	o lea ua uma ona tusia i la'u faamatalaga le aso 23 ma le aso 24 tailo la i le loia pe na ia tusia.
NJ	ae na ta'u i le loia?
Wit	o lea lava
NJ	na logo i le loia a, ae e te le malamalama poo le a le mea ua le tuuina ai i totonu o lau faamatalaga?
Wit	o lea lava ma lo'u faaaloalo tele lava."

The reality is that if the witness told the lawyer about these matters, there is no reason why counsel would exclude it from his affidavit as they are pertinent to the respondents case.

55. The fourth witness in respect of this counter allegation was Iasoni Toala of the village of Pitonuū, the son of a cousin of the petitioner but who gave evidence for the respondent. He was the petitioners driver on the day in question. He said the petitioner always stays at his family when he visits Satupaitea and was there on 23 February 2011. He drove him around in his car and in examination in chief said as per his affidavit that they went first to Satufia to pick up Faatoatoa Vaa a member of the petitioners committee. That they then stopped at the store at Pitonuū manned by the Gray twins where the petitioner purchased bread, tea, butter and packets of ava. He loaded these into the car and delivered them to the village meeting at Satufia. He left the petitioner and Faatoatoa there and returned home.
    
56. In cross examination the witness attempted to recant part of his affidavit evidence by saying the goods were purchased first at the Pitonuū shop before picking up Faatoatoa at Satufia. This was probably because he realized the ridiculousness of his in chief testimony that they drove from his house at Pitonuū directly opposite the twins shop to Satufia to pick up Faatoatoa, then returned to Pitonuū to the store to make the purchase, then returned to Satufia to deliver the goods to the village meeting. But when pressed by petitioners counsel he returned to his in chief evidence of the round about nature of the trip. Travelling which made little sense since Satufia is some distance away from Pitonuū with the village of Vaegā in between. We do not accept the witnesses testimony that the distance is equivalent to that between the Court House and the HRPP Hall which is only some 500 yards down the road.
    
57. Like the other three witnesses for this counter allegation, Iasoni could only remember what he did on 23 February 2011 but not on any other days in February this year. Even on those occasions when the petitioner came to Satupaitea and stayed at their house.
    
58. The petitioner not surprisingly denied committing any acts of bribery. He agreed he attended the monthly meeting of the Satufia village council on 23 February 2011 driven there by Iasoni. But he did not go with Faatoatoa. Further that all he took to the meeting was two packets of ava which was his contribution to the traditional welcoming ava ceremony. He bought these from the twins shop at Pitonuū but denied giving them any money for their mother or to take to their parents. He left the gathering at about 11:00 am and caught the 2:00 pm ferry back to Upolu where he resides. He was in Upolu on the morning of 24 February 2011 attending a Lands and Titles Court hearing which was adjourned as one of the judges was not available.
    
59. He did admit giving the twins $10.00 each between Christmas and New Year 2010. This occurred at their shop and was because Katerina had said "Uncle could I have some money for a drink." A niece of his Palota Tuupo from Upolu also popped up and seeing her, he told the girls to use that money to also buy her a drink. He did not at any time refer to the election or to tell either of their parents to remember the election.
    
60. The petitioners evidence was corroborated by his niece Palota, Faatoatoa Vaa and the pulenuu of Satufia, Manutui Tusa'o. Palota lives in Upolu but said she spent Christmas 2010 at Satupaitea with her grandmother staying at Iasoni's mothers house. The house is located directly opposite the shop where the twins work as the shop is owned by her uncle. On a day between Christmas and New Year she was in the shop when the petitioner came and bought groceries. She heard Katerina ask the petitioner for some money for a drink and saw the petitioner give the girls $10.00 each. The petitioner was surprised to see her and asked when she came to Savaii. She told him she had come with her grand-mother. The petitioner then told the girls to also buy a drink for her and she corroborated that the petitioners only other statement to the girls was about a telephone and not to take anything from the shop without paying. No headway was made into this evidence by respondents counsel in cross examination.
    
61. The petitioners evidence was also corroborated by Faatoatoa Vaa and the Satufia pulenuu. The former said he works for Sefos funeral parlour at Fusi and caught a bus from there around 10:00 am to attend the Satufia village meeting. The meeting had started but he recalls Iasoni sitting down beside him and talking about things generally. He saw the petitioner at the meeting but never talked to him or rode in his car. The meeting ended about 2:00 pm and he went home to Satufia. He refuted Iasonis evidence and said Iasoni told him he gave that false testimony out of fear. According to the petitioner, fear of reprisals from matais of Pitonuū who were supporting the respondent.
    
62. The evidence of the pulenuu of Satufia 70 year old Manutui Tusao was that the petitioner attended the meeting with nothing but two packets of ava which he contributed to the usual welcoming ceremony. Further that the food for the meeting was provided by the untitled taulelea's of the village as is the normal custom. The petitioner did not make any contribution to the food and the petitioner left the meeting early. The meeting finished about 2:00 pm.
    
63. Given the many problems with the witnesses for the respondent we are not satisfied counter allegation (i) has been proven to any real degree. We prefer the witnesses for the petitioner whom we found consistent, credible and far more believable. The counter allegation is dismissed.
    
64. The witnesses relied on to prove the second counter-allegation, viz that the petitioner provided morning tea for the village of Satufia on 23 February 2011 with the corrupt intent of inducing the village electors to vote for him were the same witnesses relied on for counter allegation (i). These were the Gray sisters, their father and the renegade relative Iasoni. We have already expressed our lack of faith in the truthfulness of their evidence. We do not accept their testimony in relation to counter allegation (ii) either. That counter allegation is likewise dismissed.
    
65. Counter-allegation (iii) after the petitioners witnesses gave evidence was sought to be withdrawn by respondents counsel ostensibly because the elector involved was not an elector for the territorial constituency of Satupaitea. Why such an allegation was made in the first place was not clear but if this was the problem, the allegation should have been withdrawn at the commencement of proceedings. That would have also saved time and costs. As the counter-allegation related to the problematic events of the morning of 24 February 2011 we have our doubts about the bona-fides of the application but granted it nevertheless and have dismissed this counter-allegation.
    
66. Counter-allegation (iv) is –
    

"On or about the middle of January 2011, the petitioner through his agent Lolo Asiata gave $50 tala to Afano Ologa of Pitonuū, as elector, such conduct amounting to the corrupt practice of bribery in that the giving of the $50 was for the purpose of inducing Afano Ologa to vote for the Petitioner."

In support of this the respondent called only one witnesses, the elector Afano Ologa. He is a public servant employed by the Ministry of Natural Resources and Environment whose offices are said to be located in the Development Bank of Samoa building in downtown Apia. The witness said that on his way to lunch on a day in mid-January 2011, he met the petitioner whom he did not know and Tuunalii Lolo Asiata whom he does from Satupaitea, outside his workplace. Lolo introduced him to the petitioner as an elector for the territorial constituency and gave him $50 saying to remember the petitioner. The witness freely admitted in cross examination that this was a bribe to secure his vote. But he took it anyway notwithstanding his devout commitment to his church as a lay preacher. He did not see any conflict between his beliefs as a devout Christian 'failauga fa'amaoni' and his behaviour. Not a man of great standards by any definition.

67. This evidence was refuted by both the petitioner and Tuunaalii Lolo who both said no such incident occurred. The petitioner denied knowing the witness and Lolo said he knew him but denied giving him any such bribe for election purposes. Especially one at lunchtime in so public a venue.
    
68. This witness is a self-admitted receiver of an electoral bribe. In terms of the law he is an accomplice to the bribery and is as guilty as the briber of a criminal offence. His evidence requires corroboration but no corroborative witness was called. Absent corroboration, this counter-allegation should not have been proceeded with. We have little difficulty rejecting the evidence of a hypocrite and a liar. This counter allegation too is dismissed.
    
69. The final allegation states –
    

"On or about the 17th of January 2011, the Petitioner gave to the matais of the sub-villages of Pitonu'u and Mosula and in particular Leaoa Talavai, $1000 tala and such conduct amounts to the corrupt practice of bribery in that the giving of the $1000 was for the purpose of inducing the matais of Pitonu'u and Mosula to vote for the Petitioner."

The respondent called three matai witnesses who were at the meeting. These were the pulenuu of Mosula Aliimaifiti Faailoilo, the pulenuu of Pitonuū Faleao Ieremia and the 77 year old tuua Leaoa Talavai to whom the $1,000 was given for distribution.

70. Once again the affidavits of all three witnesses was for all intents and purposes word for word identical. And they openly admitted they had all been in camp at the HRPP Hall since the trial commenced. Only taking a break from each other to return to Savaii for the weekend. Where such witnesses are required to testify as to a common event it does not behoove their credibility that they have been living under the one roof pre-trial or that their testimonies comes out word perfect. Such circumstances reduce the evidentiary value of their testimony. This is particularly critical in a case such as this where the main thrust of their evidence is in dispute.
    
71. The petitioner called two witnesses in addition to himself to say that the $1,000 was indeed given not on 17 January 2011 as claimed, but on 11 October 2010 when the petitioner announced his candidacy. He said it was his o'o to the village something permitted by law pursuant to section 97A of the Electoral Act 1963. Furthermore that on 17 January 2011 he was at a meeting of the Vaegā village council which he remembers clearly because he was anxious to attend the first meeting of the village for the year. He left the meeting early to catch the noon ferry to Apia and gave Leaoa Talavai a matai of Pitonuū a lift to the Salelologa wharf. He denied meeting the other matais that day.
    
72. The petitioner called as a witness Asiata Seso who confirmed the petitioner spent the night of Sunday 16 January 2011 at his house in Faga and that they travelled at 6:00 am the next morning to Vaegā to attend the first village meeting for the year. They left there around 11:00 am and he dropped the petitioner off at the wharf. He also confirmed giving Leaoa Talavai a lift from Pitonuū to Salelologa.
    
73. Apart from the above referred problems with the respondents witnesses, it is simply not credible that a non-matai of Pitonuū, unknown to the village but requiring their support, would visit the village for the first time a month and a half away from election day. We also noted that once again the respondents witnesses were fixated with the date of 17 January 2011 in the allegation and displayed a clear lack of knowledge of their actions on any other day or in respect of any other village meetings. They also kept no official minutes or record of the 17 January 2011 meeting.
    
74. We are not satisfied with the evidence of the respondents witnesses as to this counter allegation. We prefer the evidence of the petitioner and his witnesses. This counter-allegation is also dismissed.
    

Costs:

75. The petition allegations have been sustained in their entirety. Costs normally follow the event. The petitioner is entitled to his reasonable costs which taking into consideration all relevant factors we fix at $5,000. He is also entitled to reasonable disbursements as approved by the Registrar.
    
76. None of the respondents counter-allegations were proven to the requisite standard. At least two counter-allegations should not have been proceeded with. As evidenced by the decision a significant proportion of trial time was taken up on the counter-allegations. The petitioner is also entitled to costs on the counter-petition which we fix at $3,500.
    
77. The petitioners deposit for security for costs should be refunded.
    

Conclusions:

1. For the reasons given herein, the petition succeeds. The respondent is by his agent found guilty of the corrupt practice of bribery committed on the three occasions outlined in the petition.
   
2. As a result the respondents election pursuant to section 112 of the Electoral Act 1963 is declared void.
   
3. Also for the reasons given herein, the respondents counter-petition fails, all the counter allegations are dismissed.
   
4. Costs to the petitioner in the sum of $8,500 plus reasonable disbursements as approved by the Registrar.
   
5. The petitioners deposit for security for costs is to be refunded forthwith.
   

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Honourable Justice Vaai

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Honourable Justice Nelson