Ponifasio v Simone [2019] WSSC 8 (8 February 2019)

THE SUPREME COURT OF SAMOA
Ponifasio v Simone, Enele, Malautea, Samilolo & Vea [2019] WSSC 8

Case name:	Ponifasio v Simone, Enele, Malautea, Samilolo & Vea
Citation:	[2019] WSSC 8
Decision date:	08 February 2019
Parties:	TUALA AUIMATAGI IOSEFO PONIFASIO of Malifa, Samoa, (Appellant) and TAULAMAGO SIMONE of Leauvaa, ITUAU ENELE of Leauvaa, FAATAUU MALAUTEA of Leauvaa, TEVAGA SAMILOLO of Samalaeulu and VA VEA of Samalaeulu (Respondents)
Hearing date(s):	29 August 2018
File number(s):
Jurisdiction:	Civil
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	1. The appeal against conviction in relation to information D861/16, D869/16, D862/16, D1521/16, D865/16 and D864/16 is upheld, and the conviction is set aside pursuant to section 154(2)(a)(ii) of the CPA.The appeal against sentence is upheld and the sentence is quashed pursuant to section 154(2)(c)(ii)(A) of the CPA. The Appellant is acquitted of all charges pursuant to section 154(2)(ii) of the CPA. I thank Counsel for their thorough submissions. Counsel to file Memoranda as to Costs within 14 days of this decision.
Representation:	P Chang & S Ponifasio for the Appellant R Drake for the Respondents
Catchwords:	Candidates Notice of Appeal
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016 Electoral Act 1963
Cases cited:	Elia v Attorney General [2014] WSCA 14 Kerslake v Attorney General [2014] WSSC 87 Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 Nocturn v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

PONIFASIO
Appellant

A N D
SIMONE, ENELE, MALAUTEA, SAMILOLO & VEA
Respondents

Counsel:
P Chang & S Ponifasio for the Appellant
R Drake for the Respondents

Decision: 08 February 2019

RESERVED DECISION OF TUALA –WARREN J
ON APPEAL AGAINST CONVICTION AND SENTENCE

Introduction

1. This is an appeal from decisions of Judge Atoa in convicting and sentencing the Appellant on 31 August 2017 and 11 December 2017 on 6 information.
2. The conviction is in relation to charges brought in a private prosecution against the Appellant by the successful candidate in the 2016 election. The Appellant was one of three candidates who ran for election in the electoral district of Gagaaemauga No.1.

Notice of Appeal

3. On 12 January 2018 a Notice of Appeal was filed upon the grounds that;
   1. The Court’s findings in relation to D861/16, D869/16, D862/16, D1521/16, D864/16 and D865/16 are unreasonable, if having considered all of the evidence, the Court could not reasonably have been satisfied to the required standard that the Appellant was guilty;
   2. The Court’s findings in relation to D861/16, D869/16, D862/16, D1521/16, D864/16 and D865/16 is against the weight of the evidence adduced;
   100. The sentence imposed is against the law;
   4. The sentence was manifestly excessive and/ or wrong in principle;
   5. There was a miscarriage of justice in that the Appellant did not have effective representation at the crucial stage of his trial as there was failure by the trial counsel to adequately put the defence case;
   6. There was a breach of the Appellant’s constitutional right to a fair trial due to procedural unfairness in the conduct of the trial and/or admittance of evidence.

Notice of Opposition

4. On 23 March 2018, a Notice of Opposition against the Notice of Appeal was filed upon the following grounds;
   1. The first ground of appeal is frivolous and vexatious and an abuse of process. The indisputable evidence fully supports the findings and conclusions by the Court;
      1. Information D861/16-the findings by the Court are clearly supported by the indisputable evidence before it;
      2. Information D869/16-the Respondent does not agree that the ground of appeal in respect of this information were the findings of the Court in respect to this information;
      3. Information D862/16-the incontrovertible evidence in support of this information fully support the findings by the court;
      4. Information D1521/16-these findings by the Court were drawn from the evidence obtained, both direct and under cross examination and inferences drawn from the circumstances in which the meeting was arranged and held;
      5. Information D864/16-the findings by the Court were supported by evidence;
      6. Information D865/16-the findings by the Court were supported by evidence.
   2. The second ground of appeal is frivolous and vexatious and an abuse of process. The indisputable evidence fully supports the findings and conclusions by the Court;
      1. Information D861/16-the findings by the court are clearly supported by the indisputable evidence before it.
      2. Information D869/16-the Respondent does not agree that the grounds of appeal in respect of this information were the findings of the court.
      3. Information D862/16-the incontrovertible evidence in support of this information fully support the findings by the court.
      4. Information D1521/16-findings by the court were drawn from evidence obtained, both direct and under cross examination and inferences drawn from the circumstances in which the meeting was arranged and held.
      5. Information D864/16-the findings by the Court are supported by the evidence
      6. Information D865/16-the findings by the Court are supported by the evidence.
   1. There is no merit in the third ground of appeal.
   2. The fourth ground of appeal is without merit having regard to the circumstances of the case.
   100. There is no substance to the fifth ground of appeal as the Appellant was in control of how his defence was presented throughout the trial.
   4. There is no substance to the sixth ground of appeal. The procedure adopted was consented to by both parties for the purpose of providing clarity to the Court and both parties in respect of the evidence relating to each information.

Relevant Law

5. This appeal is lodged pursuant to sections 146 and 148 of the Criminal Procedure Act 2016 (‘CPA’) which confers on a dissatisfied party a general right of appeal. Section 154(2) CPA provides various options to this Court by way of disposition of an appeal against conviction and an appeal against sentence;

(2) Without limiting subsection (1), the Supreme Court may:

(a) for any appeal against conviction –

(i) confirm the conviction; or

(ii) set the conviction aside and direct either an entry of acquittal or a new trial; or

(iii) amend the conviction and, if the Supreme Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the defendant in any other way that the convicting Court could have dealt with the defendant on the conviction as so amended; and ...

(b)...

(c) for an appeal against sentence –

(i) confirm the sentence; or

(ii) if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate:

(A) quash the sentence and either substitute any other sentence warranted in law (whether more or less severe); or

(B) quash any invalid part of the sentence that is severable; or

(C) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; and...

5. Aitken J in Mikaele v Police [2015] WSSC 260 (5 June 2015) stated;

The broad test on appeal is whether the verdict or finding of guilt was unreasonable. In Elia v Attorney General [2014] WSCA 14, the Court cited with approval the test in Owen v R [2008]2 NZLR 37:

“.... a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.”

6. It follows that the test for this Court in this appeal is whether, having regard to all the evidence, the District Court Judge could not reasonably have been satisfied beyond reasonable doubt that the Appellant was guilty – or, to put it another way, that the charges were proved.
7. Sapolu CJ in Kerslake v Attorney General [2014] WSSC 87 (23 December 2014) sets out the relevant law comprehensively as follows which is helpful in understanding the test;
   

Relevant Law

(a) The approach in Rae v International Insurance Brokers (Nelson Marlborough) Ltd in an appeal against aifindf fact gact generally.

The approach to be applied by an appellate Court in an appeal; against a fg offg of by the trial Judge was discussed by the New ZealaZealand Cond Court of Appeal in Rae v nnternal Insu Insurance Bro(Nelson Marlborough) Ltd [1998] 3 NZLR 190 where Tire Tippingpping J in delivering the judgment of himself and Richardson P said at p.195:

“While not purporting to set out an exhaustive test, there are two conventional circumstances in which an appellate Court may differ from the trial Judge on a matter of fact. They are: (a) if the conclusion reached was not open on the evidence, ie where there was no evidence to support it, and (b) if the appellate Court is satisfied the trial Judge was plainly wrong in the conclusion reached”.

The issue was discussed more broadly by Thomas J who said at pp. 198-199:

“The principle that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances is so well established it does not require citation of authority. For present purposes Viscount Haldane LC’s dictum will suffice. In Nocturn v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932 at p. 957, the learned Law Lord said:

‘“...it is only in exceptional circumstances that Judges of app160;, who have not snot seen the witnesses in the box, ought to differ from the finding of fact of the Judge who tried the case as to the state of mind of the witness’.

&#See further, and by way of y of example, the decision of the Privy Council in Clark Boyce v Mouat [1993] 3 NZLR 641 per Lord Jauncey at p. 647, preferring the conclusions of the trial Judge rather than the conclusions drawn by the majority in this Court. More recently, the Board, in Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 at pp. 138-139, reiterated that an appellate Court should not reverse the decision of a trial Judge on a question of fact unless that decision is shown to be wrong. Notwithstanding that it may have been a decision which could have gone either way, at first instance, it cannot be reversed if it was one which the trial Judge was ‘entitled to reach.’

...

It may not be fully appreciated that the deference of an appellate Court to the finding of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness’s feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal . udge forms a perceptiception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible ofeventissue. The Judge udge perceperceives firsthand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to ‘second guess’ a trial Judge’s findings of facts when it does not share those advantages. Exceptional caution in departing from the trial Judge’s findings of fact are therefore regarded as imperative”.

(b) Appeal nst aifinding of fact mact made by a trial Judge based on issues of credibility

In respect of an appeal against a finding ot mact made by a Judgthe basis of issu issues ofes of credibility, the approach adopted by the New Zealand Supreme Court in Austin, Nichols & Co Inc vhtingstar [2007] NZSC 103; [2008] 2 NZLR 141 was stated by Elias CJ at p.150, [13], is in these terms:

“The appeal Court must be persuthad that the decision is wrong, but in reaching that view no ‘deference’ is required beyond the ‘customa217; on appropriate when seeing the witnesses provides an advantage because credibilitbility is y is important. Such caution when facts found by the trial Judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at p.197 per Richardson P and Tipping J and at p.199 per Thomas J and Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC)”.

In Hurst v New Zealand Police [2008] NZHC 1723 which was concerned with an appeal [2008] 2 NZLR 141, 150 at [13], said at [26]”

“The Supreme Court recognised in that passage that where issues of credibility were involved the Judge at first instance hearing the evidence does have advantages over an appellate Court”

Again in Kingi v Police [2012] NZHC 1308 which was concerned with an a against convictnviction and sentence from the New Zealand District Court to the New Zealand High Court, Clifford J sa [12]:

“In Austin, Nichols & Co Inc v Stichting Lodester [2007] NZSC 103; [2008] 2 NZLR 141, 150, the Supreme Court acknowledge that trial Courts may have a distinct advantage over appellate Courts when it comes to issues of credibility. The trial Court will have seen and heard the witnesses. I think Judge Behrens clearly had an advantage in this instance, and therefore I think it is appropriate that I hesitate before reaching a different decision on credibility than he did.”

The current approach in New Zealand

The current approach applied in New Zealand by an appellate Court on an appeal& in relation to n to findings of fact, issues of credibility, and whether a verdict by a jury is unreasonable, was compreheny canvassed by the Court of Appeal in R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 which was concerned with an &appea0; against cost convictnviction from a verdict of a jury in the District Court. The decision in R v Munro was later explained and endorsed by the Supreme Court in R v Owen [2008] 2 NLZR 37 at p. 43 – 44, [13], in these terms:

“We return to the discussion of the Court of Appeal& in R v Munro [2007] NZCA 510; [2008] 2 NZLR 87. We pe to discuss the main judgmjudgment in that case only to the extent necessary for present purposes. We would endorse the following aspects of the decision in Munro:

(a) The appellate Court is performing a review function, not substituting its own view of the evidence.

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate Court. Assessment of honesty and reliability of the witnesses is a classic example.

(c) The weight to be given to individual pieces of evidence is essentially a jury function.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate Courts should not lightly interfere in this area.

(f) An Appellant who invokes s.385 (1) (a) must recognise that the appellate Court is not conducting a retrial on the written record. The Appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.”

Further at [17], the Court stated the approach to the question of whether the verdict of the jury is unreasonable in these terms:

“[A] verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.”

In Muaiava Ufiufi v Attorney General [2009] WSCA 13, at 2, which was concerned with an appeal against ctnvi from a vm a verdict of assessors in a rape trial in the Supreme Court, our Court of Appeal& adopted the appe approach stated in Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 at [17] by saying:

“The issue is whether the verdicts are unreasonable because, having regard to all the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that the Appellant was guilty: Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 (SC) at [17].”

The R v Munro and R v Owen decisions were concerned with verdicts by juries and not with a decision by a Judge sitting alone. However, I do not see any valid reason for not applying the same approach enunciated in those two cases to an appellate Court hearing an appeal from a trial Juitting ting alone. In fact, in Xu v Mayes [2014] NZHC 349 which was concerned wn ;appeal ; to t to the Nelanealand High Court against a restraining order granted by a Judge of the New Zealand District Court, Toogood J in the High Court said at [37] – [38]:

“[37] Applying the approach described by the Supreme Court in Austin, Nicholas & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13], the Appellant must persuade this Court that the decision below was wrong. I am not required to defer to the District Court Judge’s views but ‘customary’ caution is appropriate when the facts found by the trial Judge turn on issues of credibility: Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 197 per Richardson P and Tipping J and 199 per Thomas J.

[38] Because the issue of credibility is central to this appeal , I bearind mlso the fohe following principles contained in the Court of Appeal ’s decision in unv Munro [2007] NZCA 102, [2008] 2 NZLR 87 (albeit in the context of an appeal from a criminal coion tion in a jury trial), which were endorsed by the Supreme Court in R v Owen [2007]2007] NZSC NZSC 102[2007] NZSC 102; , [2008] 2 NZLR 37 at [13], modified for the circumstances of this appea0;:

(a) An ) An appellate Court is performing a review function, not substituting its own view of the evidence.

(b) An appellate review of the evidence must give appropriate t to the advantages the Dise District Court Judge may have had in assessing the honesty and reliability of the witnesses.

(c) It is essentially for the District Court Judge to determine the weight to be given to individual pieces of evidence.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system, the body charged with finding the facts in this case is the District Court. Appellate Courts should not lightly interfere in this area.

(f) An Appellant who invokes a right to appeal&#/b> under s.34 of t of the Act must recognise that this Court is not conducting a retrial on the written record. An Appellant must articulate clearly and precisely in what respect or respects the decision appealed from is said to be unreasonable and why, after making proper allowance for the points made above, the decision should nevertheless be set aside.”

For present purposes, I have decided to adopt the approach in R v Munro as endorsed by R v Owen. At the same time, I bear in mind the principles stated in Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Austin, Nichols & Co Inc v Stichting Lodestar, as well as the adaptation of the Munro and Owen approach and principles in Xu v Mayes to an appeal from a denisioa Distriistrict Court Judge.

Information

8. I will address the 6 information individually. The same ground of appeal advanced in relation to all six information is that the Court’s findings in relation to all information are unreasonable, if having considered all of the evidence, the Court could not reasonably have been satisfied to the required standard that the Appellant was guilty, and the Court’s findings are against the weight of the evidence adduced.
   
9. All information are laid pursuant to section 96(2)(3) of the Electoral Act 1963. Section 96 (2)(3) provides;

96. Bribery – (1) In this section, ―voter‖ includes a person who has or claims to have a right to vote.

(2) A person is guilty of a corrupt practice who commits the offence of bribery.

(3) A 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 an office to or for a voter, or to or for any other person on behalf of a voter, or to or for any other person, in order to induce a voter to vote or refrain from voting; or

(b) corruptly does any such act as aforesaid on account of a voter having voted or refrained from voting; or

(c) makes any such gift or procurement as aforesaid to or for s person in order to induce that person to procure, or endeavour to procure, the return of a person at an election or the vote of a voter,−

or who, upon or in consequence of any such gift or procurement as aforesaid, procures, or engages, promises, or endeavours to procure, the return of a person at an election or the vote of a voter.

(4) For the purposes of this section:

(a) references to giving money shall include references to giving, lending, agreeing to give or lend, offering, promising, or promising to procure or endeavour to procure, any money or valuable consideration;

(b) references to procuring an office shall include references to giving, procuring, agreeing to give or procure or to endeavour to procure, an office, place, or employment.

D861/16

10. The particulars of this information is that on 23 February 2016 at Malifa, the defendant gave $200 to Taualiipano Nimo and Tauatama, Seu Vasega and Taulamago Sione and $100 each to Pesa, Malino, Simone, Falanisisi, Savelio, Amato and Kalolo for the purpose of inducing them to vote for the defendant and thereby committing the offence of bribery.
    
11. The Judge found that she was satisfied beyond reasonable doubt that the defendant had a corrupt motive and that he is guilty of giving money to all those named in the information, including Malaka Faatauu and Faauma Amosa who were not named in the information.
12. The evidence called in support of this information was from Taulamago Simone, Manino Simone, Malaka Faatauu and Falanisisi Paola
13. The Appellant submits that Pesa, Savelio, Amato and Kalolo were not called as witnesses. The Prosecution concedes that this information should have been amended to exclude those witnesses who did not give evidence, and for which no evidence was called. The Judge made a finding that “The defendant also gave money to Taualiipano Nimo of which Taualiipano distributed $100.00 each to the taulealea present Pesa Sulu Talavini, Falanisisi Paola, Savelio Vasega, Amato Tauatama, Kalolo Faasele Usumagu, Malaka Faatauu, Faauma Amosa and Malino Sione, the informant’s son.” This finding included Pesa, Savelio, Amato and Kalolo.
14. The test for this Court in this appeal is whether, having regard to all the evidence, the District Court Judge could not reasonably have been satisfied beyond reasonable doubt that the Appellant was guilty – or, to put it another way, that the charges were proved.
15. Pesa, Savelio, Amato, and Kalolo did not give evidence. The only evidence before the Court is that they were seen to have received money as distributed. The Respondent does not mention any evidence offered in relation to these four people. It is difficult to reconcile the finding by the Judge with the fact that neither of these named people gave evidence, nor was there any evidence to support the second element of the charge of bribery. The elements of bribery are;
    1. Directly or indirectly through any other person;
    2. Gives money to a voter to induce a voter to vote or refrain from voting.
16. Firstly there is no evidence that these people were voters in this constituency. This is important to establish at the outset. Nor do I find any evidence that this money was given to these people to induce them to vote for the defendant. The Appellant gave evidence that Pesa, Savelio, Amato and Kalolo were all members of his committee. There is no evidence to dispute this. Therefore even if the Appellant gave money to these people, it is not established that they are voters in this constituency, or that it was for the purpose of inducing them to vote for the Appellant, in view of the undisputed evidence of the Appellant that these people were members of his Committee. The Learned Judge does not say which evidence led her to make a finding of guilt in relation to these people
    
17. With respect, the Learned Judge could not reasonably have been satisfied beyond reasonable doubt that the Appellant was guilty of bribery in relation to Pesa, Savelio, Amato, and Kalolo.
18. Malaka Faatauu is not named in the information and in the absence of any amendment of this information to include him, a finding of guilt in respect of Malaka cannot be made as the Appellant has not been charged with any offence in relation to Malaka.
19. Faauma is also not named in the information. Similar to Malaka, the Appellant is not charged with any offence in relation to any one by the name of Faauma. A finding of guilt cannot be made in relation to Faauma.
20. The information also charges that the Appellant gave $200 to Taualiipano Nimo and Tauatama, Seu Vasega and Taulamago Sione, and $100 each to Malino Simone and Falanisisi for the purpose of inducing them to vote for the defendant.
21. The evidence in relation to Taualiipano, Tauatama, Seu Vasega and Taulamago is given by Taulamago who says that the defendant gave each of the four matai present $200 each for pasese and he names the matai present as himself, Seu Vasega, Tauatama Poni and Taualiipano Nimo.
22. During cross examination, in relation to Taualiipano Nimo, Taulamago when prompted that he did not see the Appellant give Taualiipano $200 said, because Taualiipano was distributing the money to the non-titled men, he must have kept $200 for himself. In re-examination, he says the $200 for each matai was given by the Appellant to each matai under a table which he could see.
23. In relation to Taulamago himself, his evidence is that he received $200 when he was not a member of the Appellant’s committee.
24. The evidence in relation to Malino Simone is that he says there were 8 untitled men each given $100.00 by Taualiipano Nimo, in his written statement read out by the Registrar and admitted into evidence as exhibit ‘P3’. This is the same evidence from Falanisisi Paola in his written statement in exhibit ‘P4’, that he was given $100.00. Both of them in their viva voce evidence confirmed that they were given $100 each. Malino says under cross examination that he went to the Appellant’s place at Malifa as he wanted to be a committee member and offer his support to the Appellant. This was prior to receiving the $100 which means that the evidence of inducement is weak at best. Falanisisi says in his evidence in Court that he heard the Appellant say that the money given was not inducement but was for committee work. If he was not part or did not want to be in the Appellant’s committee, he should have said so at that point. Given this evidence I do not find that the Learned Judge could reasonably be satisfied beyond reasonable doubt of inducement.
    
25. According to the Appellant, Taulamago is a member of his committee and Taulamago had given his support to him. He says Taulamago and his sons Simone (or Malino) and Falanisisi are his relatives. He says they are all members of his Salago Committee who had already given their support prior to the meeting at Malifa which has given rise to this information. Faauma Ah Chong also confirms in his evidence that at a meeting at Taulamago’s house prior to the Malifa meeting, Taulamago had given his support to the Appellant. The Appellant says that he called Taulamago to Malifa for a meeting and at the meeting, Taulamago sat beside him. This evidence is largely consistent with the evidence of Malino and Falanisisi.
26. The Appellant says Seu Vasega, Tauatama, Taualiipino and others were present at Malifa meeting. He was told by Taualiipano that members of his Salago Committee wanted to meet and offer their support and encouragement, thus the Malifa meeting was called. He gave the money to his committee to use for their committee work like buying credit for telephone communications and transport costs.
27. Seu Vasega, Tauatama Poni and Taualiipano all gave evidence that they were members of the Appellant’s committee. None gave evidence of inducement, although all said they received money at the Malifa meeting. Taualiipano says he did not receive any money, and that Taulamago made out he was a member of the Appellant’s Salago committee. This is consistent with the evidence given by the Appellant in relation to Taulamago.
28. In light of the evidence from Taualiipano, Seu Vasega and Tauatama Poni that they were members of the Appellant’s committee, there is no evidence upon which the Judge can conclude they were given money for the purposes of inducement. Taulamago’s evidence of these people being given money is not disputed but he gave no evidence of inducement in relation to these people.
29. Taulamago’s motives are evident from the evidence. These motives are plainly manipulative and misleading. I am not satisfied that the Learned Judge on this evidence can be satisfied that Taulamago was given $200 to induce him to vote for the Appellant. He received $200 but I find he held himself out as being a member of the Appellant’s committee, and was given the money for that purpose, not as inducement.
30. In terms of corrupt motive of the Appellant, the giving of money by the Appellant to his committee members and those who held themselves out to be his committee members, is not evidence of corrupt motive.
31. Committees are formed by candidates for the purpose of assisting them before and during the election. Being part of a committee is prima facie evidence of support for the candidate. The Prosecution must prove inducement of committee members beyond reasonable doubt as committee members have given their support and have agreed to work with the candidate in preparing for the election. This case involved those who said they were committee members and those who held themselves out as committee members. It is for the Prosecution to prove inducement as the starting point for genuine committee members as their support is already given to the candidate, they do not have to be induced. Similarly, those who hold themselves out as being committee members, cannot then allege bribery, as they attended the committee meeting under false pretences.
32. Accordingly, in relation to information D861/16, the appeal is allowed.

D869/16

33. The particulars of this information is that on 2 March 2016 at Vaitele, the defendant in the presence of about 80 electors handed to committee members Tevaga Junior and Tevaga Tafa money from which various amounts of $100, $50, $40 and $30 were handed to the electors for the purpose of inducing them to vote for the defendant.
34. The Judge found this information proven.
35. Prosecution evidence was offered by Taulamago Simone, Malino Simone and Falanisisi Simone. All gave written statements read out by the Registrar and they also gave evidence in Court. Taulamago Simone was informed of a second meeting at Vaitele and he caught the bus. He then says that money was given out by committee member Tevaga Junior(Kiuga) for top up to allow communications for the election. Malino and Falanisisi say they attended a second meeting at Vaitele and received $30. Malino says he was told by Tevaga Kiuga that it was for credit top up for communications during election day, and he used it for credit top up. Malino says he does not know why he went to both meetings, but he received money which he gladly took. Falanisisi says he used the $30 for credit and food for his family.
36. The Appellant gave evidence that the Vaitele meeting was called for committee members only to finalise last minute matters as it was only a couple of days before the election. Taulamago and his family were present. All present signed a book and it was made clear that they were all Committee members. He gave money for credit and petrol to assist. He says he found out after the meeting that same day that Taulamago was in the another candidate’s committee.
37. Tevaga Junior gave evidence that the Vaitele meeting was for all of the Appellant’s committee members. He says he and Tevaga Tafa distributed the money to all committee members at that meeting upon his request to the Appellant for some monetary assistance for committee members.
38. Muliagatele Iulia and Lefono Fereti, committee members also confirm that the Vaitele meeting was for all committee members.
39. Although I find that money was given to Taulamago, Malino and Falanisisi, by the time of the second meeting, they were holding themselves out as committee members. I am not satisfied that their evidence is sufficient to make a finding of inducement. They were not being induced. They were deliberately being misleading in attending committee meetings to receive money if as they say, they are not committee members. Taulamago’s motive was to deceive the Appellant into believing he was a member of the Appellant’s committee knowing full well he wasn’t. He was there for the purpose of this charge. This is blatantly obvious from the evidence. Malino and Falanisisi also attended the Vaitele meeting giving the impression that they were committee members.
40. I do not find that the Judge could have been reasonably satisfied that they were given money as inducement for their votes. Their subsequent attendance at the Vaitele meeting after being greeted as committee members at the Malifa meeting, cemented the impression they gave of being committee members. They were thus treated as such. For these reasons, and given their clear manipulative and dishonest motives, their evidence is not sufficient for this charge.
41. An inherent difficulty with the Judge’s finding is that there is no evidence upon which to make the finding beyond reasonable doubt that the money was handed to ‘electors’ for the purpose of inducement. If ‘elector’ means ‘voter’ then this has not been established. The only clear evidence apart from Taulamago, Falanisisi and Malino is that the Vaitele meeting was a committee meeting.
42. The appeal in relation to this charge is allowed.

D862/16

43. The particulars of this information is that on 22 February 2016 at Leauvaa, the defendant gave Ituau Enele of Leauvaa, $100 for the purpose of inducing him to vote for the defendant and thereby commit the offence of bribery.
44. The Judge found that she was satisfied that the defendant gave $100 to the defendant[sic] on both occasions and it was for the purpose of inducing him to vote for him.
45. This informant gave evidence that the Appellant went to his home and gave him money for his esi. The second time he was given money was when he took his esi to the Appellant’s hotel. He says he was tempted to vote for the Appellant because he is a relation of his wife’s. But at no time during his evidence did he say that the Appellant had given him money and mentioned the election. Perhaps the money given was $30 more than the cost of the esi, but he does not say anywhere in his evidence that he tried at the time to return the change or tell the defendant that the $100 was in excess of the cost of the esi.
46. The Appellant says that he bought esi from the informant for $50.00 at the informant’s house. The next day the informant delivered esi to the Appellant’s hotel and the Appellant gave him $50.00 for the esi. The Appellant said that he made it very clear the money was for the esi and was not a bribe.
    
47. Vaifale Loua who was present gave evidence similar to the Appellant, that the informant made it clear he was voting for another candidate and then the conversation about esi was started by the informant. The Appellant then asked if there were esi for sale and the informant gave esi to the Appellant in exchange for money. Vaifale says that he heard the Appellant say to the informant that the money is for the esi, it is not a bribe.
48. Regardless of the amount given in this case as there is a dispute as to whether $100 or $50 was given, and the Judge found it was $100, the fact remains that the Appellant was getting esi from the informant. That is undisputed. It was clear what the money was for.
49. The Judge found the defendant guilty of giving $100 on two occasions. The information alleges at Leauvaa, the defendant gave $100. The defendant was not charged with the alleged incident at Malifa.
50. I am further not convinced there is evidence to support the elements of this charge as the informant admits in his evidence that he was asked by Sala’s committee to help them in their complaint against the Appellant. This has led him to interpret the paying for the esi as bribery, subsequent to the fact.
51. I am not satisfied that the Judge could reasonably be satisfied beyond reasonable doubt of the elements of the charge of bribery against the Appellant in relation to Ituau Enele.
52. The appeal in relation to this charge is allowed.

D1521/16

53. The particulars of this information is that on or about the second week of February 2016, the defendant offered and promised to arrange a loan to complete the Seventh Day Adventist Church building at Leauvaa as well as arrange for a group of fruit pickers from the church to travel to New Zealand for the purpose of inducing members of the church to vote for him and thereby committed bribery.
54. The Judge made a finding that she was satisfied that the defendant offered to take people of the Seventh day Adventist to New Zealand on a seasonal contract to assist in the payment of the loan and the sole purpose why he proposed that was to induce the people to vote for him. Whilst I am not satisfied that he offered to take up a loan himself to be repaid by him and his wife, I am convinced that he had offered to arrange for a loan to be repaid and guaranteed by the Church members with Bluebird.
55. The informant’s evidence (Faatauu Malautea) is that the Appellant visited and inspected their incomplete church and after inspecting it said to him that he would help to complete the church building whether he is successful or not in the election. A week later he and others went to the Appellant’s hotel at Malifa and according to him the Appellant said that he and his wife could acquire and pay a loan, guaranteed by the church, for the completion of the building. He also says that the Appellant offered to take 20 people from the church to New Zealand to pick fruit.
56. The evidence of the defence was given by the Appellant and two other witnesses, Motoa Uesile and Samata Ioane.
57. The Appellant gave evidence that on his way to speak to some electors he went through the incomplete church building, walked around for a look then left. He saw the informant but did not speak to him as he did not know the informant and only came to know his name later. He says a week later members of the church came to Malifa to see him to ask for some assistance in completing their church building. He says he suggested different ways for them to get assistance, like getting materials from Bluebird and paying later. He says he also suggested seasonal work overseas as a possible way to get money for their building. He says Motoa said that if he could give $160,000 they would find the rest, and that if he gave them this money that week he would bring 70 people to vote for him. The Appellant says he was shocked and ended the meeting. The leader of the group apologised. Because they had come early in the day, he invited them to have a meal despite what had happened. He says he cannot offer to acquire a loan of $160,000 as he does not have the security or wealth to secure it.
58. Motoa gave evidence that he and other church members of Seventh Day Adventist went on their own accord to the Appellant’s Hotel to ask the Appellant for assistance to complete their church building. The Appellant did not request them to come. He says he asked the Appellant for some money to complete the church. When he told the Appellant the amount of $160,000, the Appellant said he had no money like that, and got angry. The Appellant said the church can loan the money and advised them that a trip for church members to go and work and pay the loan is a possibility. He denies that the Appellant offered to acquire and pay a loan for the completion of the hotel.
59. Samata gave evidence that the church members went to the Appellant for some assistance to complete their church building. He says Motoa requested $160,000. He says the Appellant became angry and stopped the meeting. When Samata was asked about the loan supposedly offered by the Appellant, he says that the Appellant suggested ways in the church could find money, not that the Appellant would get the loan. A suggestion was a loan with Bluebird by the church, guaranteed and paid for by the church. In relation to the fruit pickers, he says the Appellant said that the church could also consider sending a group of pickers to get money for the church.
    
60. Vaifale Faasalafa gave evidence that when the church members came to the Appellants hotel at Malifa he was there, and participated in the meeting. His evidence is the same as the evidence of the Appellant, Motoa and Samata that the Appellant was not happy with the request by the church for his assistance.
61. Given the evidence of the Appellant and witnesses, Motoa, Samata and Vaifale Faasalafa, which are largely but not exactly consistent, and contradictory to the evidence of Faatauuu, I am hard pressed to find the evidence of Faatauuu as satisfying the threshold. Furthermore at least one of the church members present at the meeting who is Samata, was not registered in the constituency in which the Appellant was competing. The Prosecution did not establish that the people present from the Seventh Day Adventist Church were voters in the Appellant’s constituency. The Judge herself made a finding that she did not accept that the Appellant and his wife offered to take out and pay for a loan for the church. She also made a finding that there were inconsistencies in the informant’s evidence in terms of the time of the meeting and the food served. With respect, the Judge focused on coincidences and what was not in evidence, rather than focusing on the evidence before her and being satisfied or not to the required standard. There is too much evidence against this finding of guilt.
62. I am not satisfied that there is evidence upon which the Judge could have been satisfied beyond reasonable doubt of this charge. Accordingly the appeal is allowed in relation to this information.

D865/16

63. This information alleges that at Samalaeulu Savaii on or around the last week of January 2016, the defendant by and through his agent Vaifale Faasalafa gave Va Vea $50 for the purpose of inducing her to vote for the defendant and thereby committed the offence of bribery.
64. The Judge found that she was satisfied that the defendant through his agent Vaifale Faasalafa did give Va Vea $50.00 for the purpose of inducing her to vote for the defendant.
65. The informant Va Vea gave evidence that out of the blue Vaifale Faasalafa and other members of the Appellant’s committee turned up one night at her home sometime in January 2016 and gave her $50 saying it was for her bingo. She says in her written statement ‘P13’ that she believes it was to bribe because they are all members of the Appellant’s committee and this is the first time that they have given her money. She says that she recalls the death of Faasalafa Fania but does not recall if her family took a sii even though her son is married into the family of the deceased. She says she may have been in Apia. All she recalls is receiving the money for bingo.
66. Her husband Tufaaga Vea says he was standing outside their home when Vaifale Faasalafa and three others came to their house. He says all four who came are in the Appellant’s committee. They asked for his wife and she came out and spoke to them while he carried onto the shower. He says they know that he is part of Sala’s committee and yet they still come to coax his wife. His wife never mentioned any coaxing, or that the election or the Appellant was mentioned to her during the receiving of this money. Both Va and Tufaaga said this is the first time these people have come to give money for bingo. He denies that the money was for the funeral of Vaifale Fania, but does concede that his son is married into the family of the deceased.
67. Vaifale Faasalafa gave evidence for the defence that in the third week of February 2016, (which he changed to January 2016 under cross) their family had a faalavelave which was the passing of Vaifale Fania. His evidence is that he went to Va and her husband’s home with other members of his family and gave her $50 to help with her sii as one of her sons is married into the family of the deceased. He says the $50 was to assist Va and her family with their sii as they are all part of an extended family.
68. He denies he was there as part of the Appellant’s committee. He says he is not sure whether the people he was with were in the Appellant’s committee. He was there because of a family faalavelave.
69. Tevaga Maletino gave evidence that he was in Vaifale Faasalafa’s car when they went to Va and Tufaaga’s house. He was on his way home after a family gathering and Vaifale Faasalafa lives in his direction. He saw Faasalafa give $50 to Va after he asked for Tufaaga and she replied he was in the shower. He says he heard Faasalafa say to Va that the money was to help with the faalavelave as Va and Tufaaga were taking their own sii, which was not part of the bigger extended family sii. He says under cross that he was never chosen in the Appellant’s committee but does support the Appellant as they are related.
70. Vaifale Pita gave evidence that he was also in the car that went to Va and Tufaaga’s house. He confirms the faalavelave within the family. He says that when they arrived at Va’s house they asked for the toeaina, she replied he was having a shower. Then Vaifale gave $50 and told Va it was to help with their sii. He says she said thank you and replied she now has bingo and cigarettes money.
71. I find the evidence of Va and Tufaaga to be implausible for several reasons. Her daughter-in-law is from the family of the deceased. She recalls the death but not a sii. She gave no evidence of anything being said that could amount to inducement. Tufaaga’s evidence is plainly biased being part of Sala’s committee and was forthcoming in his evidence that he did not want his wife to vote for the Appellant. There is too much evidence against this finding as three other people gave evidence of what was said during the giving of the money. The evidence by the informant and her husband is simply insufficient to make a finding beyond reasonable doubt.
72. The appeal in relation to this information is allowed.

D864/16

73. This information alleges that at Samalaeulu, Savaii on 24 February 2016, the defendant by and through his agent Vaifale Motoi gave Va Vea $50.00 for the purpose of inducing her to vote for the defendant and thereby committed the offence of bribery.
74. The Judge made a finding I am convinced that the defendant through his agent Vaifale Motoi did give $50 to Va Vea. She makes no finding in relation to the second element of inducement. She is however satisfied beyond reasonable doubt that the defendant committed the offence of bribery.
75. Prosecution evidence was offered by Va Vea and her husband Tufaaga Vea. Va Vea gave evidence that she was invited to Vaifale Motoi’s home. She says she is not sure why she was asked to come to the meeting, the only thing she knows is that she was asked to come. She says she was given $50.00 by Vaifale Motoi while she was in one of Motoi’s houses with Vaifale Motoi’s wife and one other woman. She says it was a bribe. Her evidence was very clear that she understood it was a bribe given to her to induce her to vote for the Appellant. She says the Appellant spoke about giving out money. She denied being part of the Appellant’s committee. She denied being asked there to help Vaifale Motoi’s wife as they were hosting the Appellant and his committee. She denied that she has been to Vaifale Motoi’s house on previous occasions to help his wife in preparing the house when they hosted guests. She says she does not go to their house. She says that Vaifale Motoi dropped her home in his car after dropping the Appellant to the wharf.
76. Tufaaga Vea gave evidence that his wife was being pressured by Vaifale and his wife to attend meetings for the Appellant and he forbid her as he was a supporter of the incumbent candidate. He said that it is usual for his wife to go and help Vaifale’s wife at Vaifale’s home when they are hosting guests.
77. The evidence of the defence was given by the Appellant. The Appellant gave evidence that he gave $500 to cater for the elderly people who were still around for the putting up of his sign which was being prepared at Vaifale Motoi’s house. He was unsure as to who he gave the money.
78. Noua Lemo gave evidence that he was present that day when the sign was being prepared. Va Vea says that Noua Lemo gave $50 to the other two ladies she was sitting with, while Vaifalo Motoi gave her $50. Noua says he did not distribute any money to the ladies as Va claims. He is part of the Appellant’s committee and he received $10.
79. Vaifale Junior gave evidence that he travelled with the Appellant to Savaii for the purpose of putting up the poster or sign of the Appellant. They went in the Appellant’s van. He did not see any money being given out.
    
80. Vaifale Loua who also travelled with the Appellant to Savaii said that they went in the Appellant’s van. He did not see any money being given out.
81. Vaifale Motoi gave evidence that a month before the election, the Appellant and others had been at his house to put up a sign for the Appellant. He denies giving Va Vea $50 as alleged, or even asking her to the meeting. He says he supported the Appellant because he is related to him. He does not know if any money was distributed.
82. Several contradictions in Va’s evidence and her motives throw her allegation of the $50 being a bribe into doubt. Her husband says she does go to Vaifale Motoi and his wife’s home to help out when they have guests. The Appellant came in his own van which means Va’s evidence about Vaifale Motoi dropping the Appellant to the wharf in his car is incorrect.
83. More particularly, I find her motive highly questionable. This is the second allegation of bribery she has made. She was out to get money from the Appellant even in the face of her husband’s disapproval and in this case, out to ensure the Appellant was charged. She spoke of the Appellant talking about giving out money, but she was not even inside the house where the Appellant and others were. She cannot recall any other matter that the Appellant spoke about, only the money matter.
84. Looking at the totality of the evidence, it is clear that the purpose of the gathering at Vaifale Motoi’s house was for the sorting of the electoral roll and the putting up of the Appellant’s sign. These are committee matters. If the Appellant did give money it was at a time when committee matters were being discussed and committee plans were being put into action. That Va happened to be there does not automatically mean she is being induced. That she received money does not mean she is being induced. Even if I find that Vaifale Motoi was an agent of the Appellant, there is no evidence that Va was induced by anyone except her evidence that the Appellant spoke about distributing money. This evidence is highly questionable given her motive of establishing bribery against the Appellant.
85. The appeal is allowed in relation to this information.

Sentence

86. The Appellant appeals the sentence on the grounds that it is against the law; the sentence was manifestly excessive and/ or wrong in principle.
87. Because I have allowed the appeal on all information, there is no need for me to address each ground of the appeal against sentence. The sentence imposed is no longer appropriate.
    

Final Comments

88. Before I provide the result, I have a few final comments to make in relation to this case. The intention of these comments is to be constructive and not critical in any way.
89. I have looked at the evidence in totality and confined myself to the test “[A] verdict will be unreasonable if, having regard to all the evidence, the jury (Judge in this case) could not reasonably have been satisfied to the required standard that the accused was guilty.”
90. I have cautioned myself that an Appellate court will only interfere with a trial Judge’s findings of fact in exceptional circumstances. I am mindful that the trial Judge had the advantage of seeing the witnesses.
91. However, I am persuaded that the decision was wrong in this case. A witness can be credible but give evidence which does not meet the threshold, or which is influenced by an improper motive. Where there is a credible narrative capable of creating doubt, it should not be ignored. Sapolu CJ and Nelson J in Lufilufi v Hunt [2011] WSSC 49 made a pertinent observation in relation to evidence in that case;

[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.

92. In relation to corrupt intention, Her Honour the District Court Judge cited with approval the decision of Sapolu CJ, Slicer and Shepherdson JJ in Posala v Sua [2006] WSSC 29 (16 August 2006);

In Rogers on Elections (20th Ed) at p.265 the author wrote:-

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

And shortly afterwards he wrote:-

“There can be no corrupt practice without a corrupt intention."

Bribery can be committed in many ways as is apparent from s.96 subsections 3.4.5.7 and 8, where these matters are set out. The most important and essential element in the offence of bribery is proof of the corrupt intention of the person charged with committing the offence.

We do not propose to set out here the lengthy list of circumstances and ways in which a person commits the offence of "bribery" (see ss.96(3)(4)(5)(7) and 8.

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

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

93. With respect, corrupt intention on the part of the Appellant could not be inferred from any of the evidence presented.
94. At the outset, a major flaw in the Prosecution case is the lack of evidence to show that the informants and those named in the information, were voters in the constituency within which the Appellant was competing. The only evidence is the word of the witnesses. A voters roll was not submitted or tendered to confirm this evidence. Section 2 of the EA defines “roll” or “voters roll” as meaning a territorial constituency roll, an urban constituency roll, a main roll or a supplementary roll. A ‘voter’ is defined in section 96(1) Electoral Act 1963 as including a person who has or claims to have a right to vote. Establishing a person is a ‘voter’ is the first requirement. The second requirement, in my respectful view, in relation to an allegation of bribery involving a candidate is that inducement occurs to a voter within the relevant constituency, to establish the offence. The danger in not establishing this at the outset occurred in the prosecuting of all information, although a glaring example is in relation to information D1521/16, where Samata who is a Seventh Day Adventist church member and present at the meeting at Malifa, says he is not registered in the Appellant’s constituency. The Judge however found that this information was proven, that is, the Appellant had induced members of the Seventh Day Adventist church to vote for him. This finding in relation to inducing the people from the Seventh Day Adventist church to vote for the Appellant cannot be sustained. It is important to bring evidence to establish beyond reasonable doubt that the informant or those named in the information or members of a group referred to in an information, are firstly ‘voters’ and secondly, that they are voters in the constituency of the candidate, if it is a candidate being charged.
95. I turn now to the two grounds of appeal raised by the Appellant which go to the overall conduct of the trial. They are representation and the right to a fair trial.
    
96. The Appellant submits;

Representation

1. There was a miscarriage of justice in that the Appellant did not have effective representation at the crucial stage of his trial as there was failure by the trial counsel to adequately put the defence case;

Right to a fair trial

2. There was a breach of the Appellant’s constitutional right to a fair trial due to procedural unfairness in the conduct of the trial and/or admittance of evidence.

97. With respect, this trial proceeded in a manner way which led to me having difficulties in deciphering the evidence, witnesses, statements and procedure. The evidence was given in a disjointed manner with witnesses having several statements, giving evidence several times, and being recalled.
98. Whilst I do not find that the Appellant did not have effective representation, the way this trial proceeded made it very difficult for both Counsel as well as Her Honour. It was essentially run as a series of mini trials within a trial. As a result, evidence was considered in a piecemeal way rather than in totality. Witnesses were called several times to give evidence in relation to different information. The Appellant did have effective representation by competent defence counsel who like the Prosecutor and Her Honour fell into a convoluted procedure in this trial, which as a result when looked at in totality, jeopardised the defendant’s right to a fair trial.
99. The Appellant’s right to a fair trial is a right which the Court must fiercely protect. One issue which arose in the appeal was the reading and tendering of written statements of Prosecution witnesses as evidence. Defence Counsel objected at least twice and made submissions in opposition. Her Honour found that he had consented to the giving of evidence in this form. Even if this is correct and defence counsel eventually consented, the issue of previous consistent statements is an important one. Although allowed into evidence by Her Honour, the weight to be given to these statements should have been considered by her. The Judge with respect did not rule on the weight she gave to these statements in convicting the Appellant.
100. Due to the way in which the trial proceeded, the Appellant’s ability to defend himself, through Counsel was affected. What was most concerning was the Court encouraging the defendant to submit written statements, even if he was on a list of defence witnesses. Defence need not disclose their defence and the defendant has a right to silence. Requiring the defendant to file a full written statement in relation to all information before he gives evidence, is a breach of the defendant’s right to a fair trial. He does not have to give evidence. If he chose to give evidence and waive his right to silence, he does not have to give a written statement before he gives his evidence viva voce. The burden of proof remains with the Prosecution from the beginning of the trial until its conclusion. The burden does not shift to the defendant at any stage. The Court in Posala v Sua stated: It is important to remember in respect of every criminal charge that the burden of proving an accused person’s guilt never leaves the person who has brought that charge or makes that charge against that accused person.
101. In the event that I am wrong in relation to the different information, the defendant’s right to a fair trial and right to silence was jeopardised. I realise defence Counsel is senior and the defendant is a lawyer by profession. However the constitutional right of a defendant to a fair trial applies to all defendants, regardless of who they are. The defendant being a lawyer by profession, does not take away from the fact that the procedure of the Court is controlled by the Court and the way in which proceedings are run should not cause the defendant any prejudice. With all due respect, adopting a practice or procedure because it is practical or expedient is not to be done at the expense of a fair trial for a defendant.
102. On the whole, the motives of the informants are highly concerning. It was blatantly obvious from their evidence that the motive was entrapment of the Appellant. The attendance of the informants, in particular Taulamago Sione and his sons, as well as Va at meetings for the Appellant’s committee, holding themselves out as committee members and receiving money which are the subject of these charges, is highly questionable. Motive only becomes evident when the evidence is looked at in totality, which this Court has done. With respect, motive needs to be borne in mind for future prosecutions of this nature.
103. The Court in Posala v Sua stated;

Each nation usually develops a method or system for dealing with and eradicating the abuses which history has shown can be associated with elections. Any system of democratic government which permits or does nothing to eradicate corruption ensuing from abuses associated with elections will lose or stand to lose the many benefits of a sound healthy democracy or it may cease to be a democracy and become controlled by a dictatorship in which there is no freedom to vote openly.

8. In the end, failure to eradicate corruption can destroy a whole society. It is important that society, when faced with (and more importantly before being faced with) corruption or other criminal offences or abuses associated with the electoral process, takes steps to eradicate those abuses.

104. Whilst I am in total agreement with the above statement, the Court must also be vigilant in monitoring charges brought as a result of alleged corruption under the Electoral Act. Where a motive which does not correspond with the eradication of corruption from the electoral process, is abundantly clear from the evidence, the Court must be prepared to say so.

Result

105. The appeal against conviction in relation to information D861/16, D869/16, D862/16, D1521/16, D865/16 and D864/16 is upheld, and the conviction is set aside pursuant to section 154(2)(a)(ii) of the CPA.
106. The appeal against sentence is upheld and the sentence is quashed pursuant to section 154(2)(c)(ii)(A) of the CPA.
107. The Appellant is acquitted of all charges pursuant to section 154(2)(ii) of the CPA.
108. I thank Counsel for their thorough submissions. Counsel to file Memoranda as to Costs within 14 days of this decision.
     

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN