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Posala v Su'a [2006] WSSC 29 (16 August 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA


IN THE MATTER of the Electoral Act 1963 & Amendments.


AND


IN THE MATTER of the Territorial Constituency of Aleipata Itupa i Lalo.


BETWEEN


TAUTOLOITUA FARANI POSALA
of Saleaumua, Aleipata a candidate for election
Petitioner


AND


PAEPAE KAPELI SU’A
of Samusu, Aleipata a candidate for election.
Respondent


Coram: Chief Justice Sapolu
Justice Slicer
Justice Shepherdson


Counsel: Mr T K Enari for Petitioner
Mr A S Vaai for Respondent
Mr M Malietoa for the Electoral Commission as amicus curiae


Hearing: 29, 30, 31, May 2006 and 5, 6, 7, 8, 9, 12, 13, 14, 16, 19, 21 June 2006
Judgment: 16 August 2006


JUDGMENT OF THE COURT


  1. A general election for Samoa was held on 31 March 2006. The petitioner and respondent were candidates in the territorial constituency of Alepata Itupa i Lalo. On 15 April the Electoral Commissioner reported to the Head of State the result of the poll as:-

Candidates Votes


Letiu Elisapeta Tali Lee 23

Paepae Kapeli Su’a 731

Tauiliili Joe Kolose Fruean 62

Tautoloitua Farani Posala 627

Utuga Faamanatu Faaaliga 258

------

Total valid votes 1701

Informal votes 4


  1. The Electoral Commissioner declared Paepae Kapeli Su’a, the respondent, elected in accordance with the Electoral Act 1963 ("the Act"), s.80. A candidate, Tautoloitua Farani Posala, the petitioner, challenged the proclamation of the election and seeks orders by the Election Court that:

"(a) he should be declared and reported as duly elected for the territorial constituency of Aleipata Itupa i Lalo; or


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


  1. The petitioner in seeking election relies on the respondent’s alleged corrupt practices, namely bribery and treating proscribed by the Act, s.96 and s.97. In turn, the respondent has adduced evidence by means of the Act s.111(6) and challenged the petitioner’s fitness to replace him as a Member of the Legislative Assembly alleging him to be guilty of bribery and treating.
  2. The respective allegations of bribery and treating (ss.96 and 97), and alternative verdicts for persons charged with corrupt practices and illegal practices (s.102) and illegal practices under s.99A raise questions of fact and law which include:

General Introduction


  1. Many nations experience problems with an open electoral process. The problems are often created by money, influence and a suspicion (or sometimes by the overt fact) of favourable treatment of the party who has achieved office and power. These problems are not a phenomenon. Much of the Samoan law concerning bribery and treating is derived from the common law and statute law of England developed in the 19th, and 20th centuries. The problems surrounding elections arise in various forms. In countries with a high income large corporations, trade unions (or their equivalent), employer groups and wealthy individuals may donate large amounts of money to the parties contesting elections, sometimes with an expectation of future benefit in the form of legislation or governmental decisions favouring the particular donor.
  2. In poorer countries the donations (be they money or goods or otherwise) flow in the opposite direction with the candidate or his supporter or supporters making gifts to electors or groups of electors to attract or influence their votes. Such a system can readily create abuses and corrupt the process of government.
  3. 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.
  4. 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.
  5. In a healthy, sound democracy, open and fair elections through the ballot box is the best option each country seeking democracy will choose a method to meet the special circumstances of that country.
  6. The Parliament of Samoa has, consistent with its Constitution, adopted a fair but overly complex method through its enactment of the Electoral Act 1963. That Act distinguished between more serious practices such as personation (s.95) bribery (s.96) treating (s.97) and undue influence (s.98) each of which it calls a "corrupt practice" and practices which the Act calls "illegal practices" (ss.99 and 99A). "Corrupt practice" and "illegal practice" are separately defined in s.2 (1) of the Act. We note also that when it comes to punishment for persons found guilty and convicted of corrupt practice the maximum penalty is greater than that to which a person found guilty of an illegal practice is liable on conviction. We also do not overlook s.112 which applies in the case of election petitions and which reads:-

"112. 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 election shall be void".


  1. There is no similar provision for a person proved at trial of an election petition to be guilty of an illegal practice. Obviously then, the Legislature views corrupt practices as more serious than illegal practices. We should say that the definitions of "corrupt practice" and "illegal practice" contained in s.2 (1) of the Act do not provide any instruction as to the essence of each such practice, the definition merely saying "means any act declared by this Act to be a corrupt [or illegal] practice" as the case may be. However comparisons of the relevant penalties do indicate comparative seriousness. We point out that the Electoral Act adds its weight in s.10 (g) which says that if on an election petition the Court declares a Member’s election void, he shall be disqualified from holding his seat. We note also s.46 (1)(d) of the Constitution of the Independent State of [Western] Samoa Act 1960 by which the seat of a member of Parliament shall become vacant if he becomes disqualified under the provisions of the Constitution or any Act.
  2. Parliament has preserved the validity of an election in instances of minor or procedural irregularities and it has done so on condition that the Court, on trial of an election petition, be satisfied that the election was so conducted as to be substantially in compliance with the law as to elections and that the court be satisfied that none of the matters listed in sub-paragraphs (a)(b)(c) and d) of s.116 affected the result of the election. We shall later mention s.97A "conduct of "O’o" and "Momoli" which is listed in the Act among "corrupt practices".
  3. Parliament has also provided for a fair and independent trial of an election petition (in open Court) (see s.111) and we note s.115 of the Act which reads:-

"115. Real justice to be observed - On the trial of any election petition –


(a) The Court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities;

(b) The Court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the Supreme Court"
  1. The preamble to the Constitution states the combination of Christian principles and historic custom and tradition as the foundation of the Independent State of Samoa. Samoan culture, with its proud past, is not one frozen in time. It is a living culture expanding retreating and modifying in a process of response to human experience. Ideally while preserving its identity, it provides necessary answers to new challenges. The strength of the combination has corresponding weaknesses which create tensions with a modern voting system. Samoan culture is steeped in ritual with gift giving or exchange, its return and the obligations created, central to that culture. Matai is a proud title of status and respect. But gifts made during and in the run-up to an election in the guise of culture and tradition and the payment of moneys during the same period, are capable of corrupting the election process and poisoning both culture and the nation.
  2. Parliament attempted to resolve that tension in 2005 with its enactment of the Act, (Electoral Amendment Act 2005) No. 3, s.7) which inserted s.97A reading:-

"97A. Conduct of ‘O’o’ and ‘Momoli’ - Despite the other provisions of this Act, the traditional presentation of ‘O’o’ and ‘Momoli’ by a Member or Candidate for Parliament or a person acting on behalf of such Member or Candidate shall not be considered as treating or bribery or an illegal or corrupt activity or practice provided that the presentation is made within the period commencing with the 180th day and ending with the 90th day from expiry of the then Parliament at 5 years from the date of the last preceding General Election"


s.97A appears in Part IX of the Act under the sub-heading "Corrupt Practices"


  1. This provision (s.97A) permits a member or candidate to make a o’o or momoli within a defined period without being found guilty of bribery or treating or an illegal or corrupt practice or activity and is a provision to which we shall later return. In the meantime we note that s.97A raises the following basic questions.

The legislative scheme of s.97A can be seen as:


(1) Proscribing corrupt practice in wide terms at all times but subject to the proviso of legitimacy for certain conduct falling within the parameters of activity or practice legitimated by s.97A. We have already mentioned in para [10] (ante) the definition of "corrupt practice".
(2) Legitimating the customs "O’o and "Momoli" during a 90 day period, fixed by reference to the date which is 5 years from the date of the last preceding general election and then performing the arithmetical calculation required by s.97A.
(3) What is the nature of custom? To answer this question the Court whose duty it is to see the law is upheld is fortunate to have had the Chief Justice discuss in these reasons the custom of "O’o" and "Momoli".

Funeral Exemption


  1. The warrant for holding an election in 2006 was issued on 16 February 2006 and publicly notified on 3 March 2006. The "period of election" defined by s.99A
    commenced on 4 March and ended at the close of polling on 31st March 2006. We note that s.99A applies to specific "illegal practices" during the period of election s.99A but does not apply to "corrupt practices"
  2. For reasons which we shall later state, the permitted conduct of "O’o" and "Momoli" was fixed as in the period commencing on 3 September 2005 and ending on 2 December 2005.

Alleged Bribery and Treating by Respondent – petitioner’s allegations


  1. We come now to the petitioner’s allegations that the respondent committed the offences of bribery and treating. The petitioner seeks orders from the Court that:

"(a) he should be declared and reported as duly elected for the territorial constituency of Aleipata Itupa I Lalo; or


(b) the respondent was not duly elected and his election was void and so a new election should be ordered."
  1. The petitioner alleges that the respondent committed bribery by giving money to electors and voters of the constituency of Aleipata Itupa I Lalo for the purpose of inducing the said electors to vote for him at the 2006 General Election particulars of which bribery are:

"5 (a) On 5th December 2005 did give to Tolu Tavita Iosefa for the village of Tiavea the sum of $1,500 and 100 loaves of bread.

(b) Between 7th December 2005 and 7th January 2006 did give to Lesa Toni for the village of Satitoa the sum of $1,500.

(c) On 18th February 2006 at Samusu gave $40 to Faaletaua Tofilega, Afioa'e Potoi Su'a and Mikaele Matiasi.

(d) On 25th February 2006 gave $30 to Kovati So’opaipa

(e) On 11th March 2006 gave $30 to Penitito Aukusitino and Mikaele Matiasi at Samusu.

(f) On 12th March 2006 at Ti'avea gave to Pale Nu’u Papa and Leota La'i Tauese $300 and fine mats at the funeral of Seupule Tiva.

(g) On 18th March 2006 gave $30 to Ioane Logo and Mikaele Matiasi at Samusu.

(h) On 18th March 2006 gave $30 to Vili Iosefa Tagaleo'o and Lotopa Lati at Samusu.

(i) On 24th March 2006 at Samusu gave $30 to Fa'aletaua Tofilega."

(j) On 29th March 2006 at Ulutogia gave $100 to Kelemete for the use of the aumaga of Ulutogia.


  1. The petitioner relies on further allegations that the respondent committed treating as follows:

"6 (a) On 21 January 2006 at Samusu did give Ioane Logo and Mikaele Matiasi 2 bottles of vodka.

(b) On 28th January 2006 at Samusu did give Ioane Logo and Mikaele Matiasi 2 bottles of vodka.

(c) On 4 February 2006 at Samusu did give 2 bottles of vodka to Tielu Feu and Mikaele Matiasi.

(d) On 11th February 2006 at Samusu did give Ioane Logo and Mikaele Matiasi 2 bottles of vodka

(e) On 25th February 2006 at Samusu did give to Ioane Logo and Faaletaua Tofilega 2 bottles of vodka.

(f) On 25th February 2006 at Samusu did give vodka to Lotopa Lati and Vili Iosefa Tagaleo'o.

(g) On 25th February 2006 at Samusu gave 5 bottles of vodka to Mikaele Matiasi, Fa'aletaua Toilega, and others."


  1. We have already dismissed (during the hearing before us) allegations 5(i) and 6(g) on the ground that there was no evidence whatever of the events alleged. Bribery and Treating are two of four practices specifically named as "corrupt practices" in the Electoral Act.

Bribery and Treating


As already stated, s.96 of the Act identifies bribery as a corrupt practice and sets out the circumstances and ways in which a person commits the offence of bribery (see ss.96(3)(4)(5)(7) and (8)). Treating is identified in s.97 of the Act as a corrupt practice. Ss.97(2) and (3) set out the circumstances in which a person commits the offence of treating.


23. 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.


In each of the charges of bribery, which we are considering it is the prosecution who bears the burden of proof and who, if it is to prove the respondent guilty, has to prove beyond reasonable doubt that the accused person had a corrupt intention at the time he allegedly bribed the person named in the particular charge. In the Hereford Case (1869) 20 L.T. 405 it was held that "corruptly" means given with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting.


  1. Mr A S Vaai, counsel for Paepae Kapeli Su’a ("the respondent"), made lengthy typewritten submissions in respect of the petitioner and the respondent (counter petitioner) and their conduct.
  2. One of his submissions dealing with evidence was that in each case of bribery alleged against his client the petitioner was obliged to prove that when Paepae gave money to an elector or gave other property (as the case may be) he did so with the intention of inducing that elector to vote for him.
  3. Mr Vaai relied on the following statements of Chief Justice Spring in Gagaifomauga No.2 Territorial Constituency [1960-1969] WSLR 1711 at p.177

"in a charge of bribery a corrupt motive must in all cases be strictly proved. The court has always refused to give any exhaustive definitions on the subject and has always looked to the exact facts of each case to discover the character of the transaction.

[ the emphasis is ours]


And later the Chief Justice said:-


  1. "For the petitioners to succeed in their allegations of treating and bribery the petitioners must prove that it was the intention of the respondent to induce the voters to vote other than in accordance with their conscience".

Mr Vaai’s above submissions are supported also by the other cases to which we have referred.


  1. We mention now that there is a clear distinction in the Electoral Act 1963 between an illegal practice and a corrupt practice. (see ss.95 – 98 for corrupt practices case and ss.99 to 102 for illegal practices).

In Barrow-in-Furness (1886) 4 O’M & H77 Field J pointed out the distinction between corrupt and illegal practices when he said:-


"A corrupt practice is a thing the mind goes along with; an illegal practice is a thing the Legislature is determined to prevent, whether it is done honestly or dishonestly"


Rogers on Elections (op. cit) (at p.270) says:


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

30. Rogers on Elections (op.cit) at p.270 also says:

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


The notes of these (and other cases) in Rogers work make interesting reading and illustrate how allegations of bribery met with varying degrees of success.


When referring to the above cited Launceston case Rogers said:-


"it was proved that the sitting member had, nearly 2 years before the election, bought an estate near the town; that there were then, and continued to be down to the election, so large a quantity of rabbits on the estate as to give rise to great dissatisfaction among his tenants, that though trappers had been engaged the nuisance continued to exist; and that the sitting member made no alteration in his proceedings so far as the rabbits were concerned till he stood as a candidate. During the election proceedings, in course of the usual canvassing speeches etc considerable uproar was caused by this question of rabbits; and ultimately, just before the poll, the sitting member gave leave to his tenants to destroy and sell them. The election was avoided, Mellor J saying "what was done not so much from an abstract sense of justice as from a desire to influence the election"


  1. We note also the Hereford Case (1869) 21 LT 117 which decided that "corruptly" means given with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting.
  2. Where the act is accompanied by more than one intention, it will be for the Court to decide whether or not the prosecution has proved beyond reasonable doubt that the intention of the person allegedly bribing or treating (as the case may be) was to influence the result of the election or to influence the votes of the individual voters.

Bribery and treating are alleged in the respondent’s counter petition and we shall later come to their allegations.


Gifts to individuals


  1. We refer to the definition of "Bribery" and more particularly s.96 which section specifies 4 sets of circumstances when bribery is committed (s.96(3) 96(4) 96(5) and 96(7) and 96(8). As we have said bribery is one of four practices each named in the Electoral Act as a corrupt practice. If it is committed it is a breach of the Electoral Act (see ss.95, 96, 97 and 98). We note also s.97A "conduct of O’o and Momoli" to which have already referred.

We do not repeat what we have earlier written concerning bribery.


Corrupt and Illegal practices under the Electoral Act 1963 and Burden and Standard of Proof


  1. What the Electoral Act calls "Corrupt and Illegal Practices" are found in Part IX of the Electoral Act 1963 (sections. 95 – 103) (both inclusive). Part IX is subdivided into "Corrupt Practices" (sections 95 to 98 [both inclusive] "Illegal Practices" (sections s.99 and 99A) and "General Provisions" (sections 100 to 103 [both inclusive]. Both these phrases "Corrupt Practices" and "Illegal Practices" are defined in section 2 (1) and although we have earlier set them out (para 10) we repeat them now for ease of reference.

["Corrupt practice," means any act declared by this Act to be a corrupt practice.

"Illegal practice" means any act declared by this Act to be an illegal practice.]


  1. The Act names four practices specifically identified in the Act as "corrupt practices" and "offences" - personation (s.95) bribery (s.96), treating (s.97) and undue influence (s.98). Also in this group of sections in the Act under the heading "Corrupt Practices" is s.97A "Conduct of "O’o" and "Momoli"

Each of sections 95 to 98 (other than s.97A) describes the particular offence identified as a corrupt practice and each of sections 95 to 98 uses the phrase "guilty of a corrupt practice"


  1. Section 101 prescribes punishment to which every person convicted of any corrupt practice is liable. The same section also prescribes punishment to which every person convicted of an illegal practice is liable. Section 101 is not to be read in isolation e.g. s.10(c) of the Act bears on punishment of a person convicted in Samoa of a corrupt practice. See also, for example s.10(g) by which a Member of Parliament shall be disqualified from holding a seat if on an election petition the Court declares his election void. (see para 10 ante).
  2. Section 10(headed "Vacancies") contains other provisions which can become very relevant indeed for a Member of Parliament e.g. by s.10(e), a Member of Parliament shall be disqualified from holding his seat if he is reported by the Supreme Court in its report on the trial of an election petition to have been proved guilty of a corrupt practice. We do not intend the comments on section 10 which we now take to encompass all the ways in which a Member of Parliament’s seat can become vacant and he be disqualified from holding his seat. We have already referred to the Constitution Act s.46(1)(d) (see para 10) ante.
  3. We also note s.103 of the Act which specifies the time limit for commencement of a prosecution against any person for a corrupt practice or an illegal practice. Section 103 contains the proviso that where the person charged has been reported by the Supreme Court in its report on the trial of an election petition to have been proved guilty of the offence a prosecution shall be commenced within 6 months after the offence was committed or within 3 months after the date of the report whichever period is the later to expire.
  4. What is clear beyond dispute from a reading of the Act is that any person who is guilty of a corrupt practice or an illegal practice has committed an offence. Although the Act does not use the word "criminal" in Part IX (headed ("Corrupt and Illegal Practices") the use within Part IX of words such as "guilty" "offence" "commission of offence" "punishment" "imprisonment" and "fine" point remorselessly to the identification of each offence as a criminal offence.

"Offence" is defined in s.2(1) of the Electoral Act and reads:-


"means any act or omission for which anyone can be punished under the Crimes Ordinance 1961 or under any other enactment and shall include any crime prescribed by law"


  1. We consider that the criminal standard of proof i.e. proof beyond reasonable doubt of guilt of any alleged offence applies to prosecutions under Part IX. The burden of proof of guilt lies on the party alleging conduct amounting to an offence. In discharging that burden, the party alleging such conduct must prove that offence and every element of it beyond reasonable doubt. We do not intend to explain what reasonable doubt means other than to say that if at the conclusion of its consideration of all relevant evidence relating to a particular charge the tribunal of fact is left in reasonable doubt as to the accused person’s guilt then it will find the accused person not guilty of the charge then being considered but if it is left in no reasonable doubt it will find the accused person guilty of that charge.
  2. We should here say that in a case where the accused gives or calls evidence when defending the charge brought against him, that evidence becomes part of the overall evidence in that charge. But it does not follow that because he has given or called evidence, the Court will conclude that the charge has not been proved beyond reasonable doubt and will therefore find the person charged not guilty.
  3. We say that because, when the Court is considering all the evidence in relation to a particular charge, it may decide to reject all the evidence given or called by or on behalf of the accused person. If the Court does reject such evidence, it does not automatically follow that because the prosecution evidence is the evidence remaining and relied on to prove the charge, that therefore the accused person is guilty. The Court trying the charge sitting as the tribunal of fact, having rejected the defence evidence in relation to the charge, may decide that the prosecution evidence relied on to prove the charge is insufficient to prove beyond reasonable doubt the accused person’s guilt of that charge. If the Court reaches that stage it will find the accused Not Guilty of the particular charge. Alternatively if the Court is satisfied that the prosecution evidence remaining after rejecting the evidence called by or on behalf of the accused person proves the charge beyond reasonable doubt, the Court will find the accused guilty of that charge. If the Court when considering the evidence relating to a particular charge decides to reject or not rely on some or all the evidence relating to that charge, whether that evidence is called by the prosecution or the defence, then the Court when considering all the remaining evidence relating to that charge may conclude that that remaining evidence is sufficient to prove beyond reasonable doubt the accused’s guilt in which event it will find him guilty or it may decide that evidence is insufficient to prove guilt beyond reasonable doubt in which event it will find the accused not guilty.
  4. 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. That person is sometimes called the prosecutor. It is also important to remember that the Court trying the charge considers each charge and the evidence in relation to each charge separately from all other charges and evidence. We bear in mind that this Court, the so called Election Court, which is trying an election petition must, when the election petition makes a charge of any corrupt or illegal practice having been committed at the election, report in writing to the Speaker of the Legislative Assembly -
  5. We do not set out here all that appears in ss.119(2)(3) and (4). Section 119(1) which is set out above makes it very clear indeed that the Court trying an election petition is empowered to make findings of guilt of corrupt or illegal practice and to identify those persons guilty of such practices. Sub-sections 119 (2)(3) and (4) confirm those powers in the Court but we do note that in the circumstances set out in s.119(4) a candidate reported by this Court to have been guilty by his agents of treating, undue influence or any illegal practice may succeed in not being dealt with for the purposes of the Electoral Act as having been proved guilty of those offences mentioned in the Court’s report. We note that "bribery" is omitted from s.119(4).
  6. We mention again s.119(2) which can affect the power of this Court to report a person who is not a party to the petition nor a candidate on behalf of whom the seat is claimed by the petition. Section 119(2) provides that in the case of someone who is not a party to the petition nor a candidate on behalf of whom the seat is claimed by the petition, the Court shall, before reporting him to have been proved guilty of any corrupt or illegal practice, first cause notice to be given to him and if he appears in pursuance of the notice, shall give him an opportunity of being heard and of calling evidence in his defence to show why he should not be so reported. Section 119(2) is an important provision of the Electoral Act.

We have so far not heard any oral or written request to report any person coming within the ambit of s.119(2) and there has been no request to give any notice to that person.


  1. We make clear that we do not need any request to report under s.119-the making of that report is mandatory once any charge is made in an election petition of any corrupt or illegal practice having been committed at the election. (see s.119(1)). However, if a report is to be made, in the circumstances applying in s.119(2) notice is first to be given to the affected person or persons. We add that in our opinion, on the trial of an election petition the burden of proving guilt in respect of each charge lies on the prosecution and that the standard of proof is proof beyond reasonable doubt. We consider the same standard of proof applies in respect of trial of election petitions as in respect of Part IX offences.
  2. We do not accept that a lesser standard of proof should apply to proof of charges brought before an Election Court than to the same charges when prosecuted and dealt with under Part IX.
  3. Corrupt and Illegal Practices are important concerns of the Electoral Act. The Supreme Court is required to report to the Speaker of the Legislative Assembly as to any corrupt or illegal practice having been committed at the election and the Court must do this when in an election petition any such charge is made. A finding at the trial of an election petition that an elected candidate is proved to have been guilty of a corrupt practice (personation s.95, bribery s.96, treating s.97 or undue influence s.98 renders the election of that candidate void. (see s.112 Act). We shall later consider s.97A and whether non compliance with that section can render an election void.

Not to be overlooked is s.113 which is in Part X ELECTORAL PETITIONS and in the sub-part of Part X headed "Trial of Election Petitions" which reads:


49. "113. Avoidance of Election for general corruption


(1) Where it is reported by the Supreme Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidate thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election, if he has been elected, shall be void.

(2) Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices".

Alternate Findings –
Finding under s.112 -


  1. Where a candidate who has been elected at any election is proved at trial of an election petition to have been guilty of any corrupt practice at the election his election shall be void (s.112). (emphasis is ours)
  2. Section 112, which we have already mentioned, is expressed so as to apply only in respect of any corrupt practice. Proof on trial of an election petition of an illegal practice does not avoid an election unless the Supreme Court reports (under s.113(1)) on the trial of the election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidate thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election, if he has been elected, shall be void. There is no suggestion that s.113(1) applies in the present case.

52. We have noted s.113 (2) which says:-


"(2) Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices"


  1. As we have said s.112 ante [para 10] applies only to "any corrupt practice". We have earlier mentioned that the Act names personation (s.95) bribery (s.96) treating (s.97) and undue influence (s.98) as corrupt practices. Section 97A "Conduct of "O’o" and "Momoli" which we have earlier set out [see para 15] specifies that "Despite the other provisions of this Act, the traditional presentation of ’O’o’ and ‘Momoli’ (as described in s.97A) shall not be considered as treating or bribery or an illegal or corrupt activity or practice provided that the conditions set out in s.97A are met.

In our opinion, if the proviso has not been fulfilled then the traditional presentation of "O’o" and "Momoli" must be regarded as (inter alia) a corrupt practice. Now s.97A is one of a group of five practices in Part IX under the sub-heading "Corrupt Practices".


Does s.97A apply to offences alleged in the counter petition against the respondent.


  1. Exactly what period of time is covered by the phrase "the election" is unclear. We find it unnecessary to attempt to define the exact time limits covered by the phrase. Suffice to say that the phrase encompasses a period before the actual hours of polling and certainly covers at least the period of time commencing on the day after the Electoral Commissioner gives public notice of polling day and ending at the close of the poll on polling day. We add that in s.99A Parliament has defined "period of election" and expressly limited that definition to s.99A. – the section begins "(1). In this section "period of election "means..."
  2. As already stated [para 50] a finding at the trial of an election petition that a candidate who has been elected at any election, is proved to have been guilty of a corrupt practice e.g. personation (s.95) bribery (s.96) treating (s.97) or undue influence (s.98) avoids the election of that candidate (s.112). It seems to us also that where a candidate has committed the offence of bribery, treating or other corrupt activity and is not protected by s.97A such a finding will avoid the candidate’s election. If he is guilty only of an illegal practice, and not guilty of a corrupt practice, it seems to us that his election will not be void.

We must say that we find unhelpful the use of the phrase "illegal activities" at the commencement of s.99A. We think that "illegal activities" must be considered to mean "illegal practices". We say that because the phrase "Illegal Practices" is the sub-heading and is consistently used throughout s.99A save for the use of "illegal activities" as already indicated.


Counter Petitions – Growth of, in response to Electoral Petitions


  1. We are conscious that at the everyday trial in the everyday court only matters in issue and raised by the respective parties in their pleadings are decided by the Court. We understand the good reasons for that practice and for the requirement of pleadings. To do away with pleadings may be unfair to the parties, may obscure the factual allegations by each party and result in confusion, delay and obstruction of real justice and interfere with the substantial "merits and justice of the case" as required by s.115 of the Act.
  2. In trials of election petitions in Samoa, litigants and their lawyers have adapted the English system of pleadings in framing documents intended to enable the parties engaged in such trials to find out what issues are in dispute between the litigants.
  3. Whilst we approve of the requirement of pleadings as a general practice, not least because they enable the parties to identify the issues on which each side proposes to contest the petition or counter-petition (as the case may be), we do not countenance a view that this Court should accept that the pleadings confine this Court or provide the parameters of the matters within which the petition or counter-petition is to be tried. The Act s.111(4) provides the Court ("Subject to this Act") with "jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as it thinks fit..." -

This subsection appears in a section of the Act headed "Trial of petition"


  1. The Court which tries an electoral petition is entitled to enquire into and receive evidence about a charge of a corrupt or illegal practice before any proof has been given "that any candidate was aware of or consenting to the corrupt or illegal practice "(s.111(5). This Court reports, not to the parties as in ordinary civil proceedings, but to the Speaker of the Legislative Assembly of Samoa and hopes that the report’s contents are fully disclosed to the electors of Samoa. Neither is this Court, as the Election Court, concerned with an "ordinary prosecution" in the sense in which that phrase is used in criminal law with a consequence of imprisonment or fine if an accused is found guilty (s.101). Parliament itself has made that distinction (s.103). When reporting to the Speaker, this Court must report in writing as required by s.119 headed "Report of court as to corrupt or illegal practices". We have earlier discussed s.119 [see paras 43, 44, 45, 46 ante]. Our report will be based on the findings on the evidence which we make. Pleadings define issues between parties but cannot be used to countenance avoidance of the provisions of general and statute law – in this case the Electoral Act 1963.

Counter Petitions


  1. Although the parties have used the phrase "Cross-petition" or "counter petition" the Electoral Act 1963 does not contain that phrase. It speaks only of petitions. As already pointed out, the Act contains Part X headed "ELECTION PETITIONS" with its various sub-parts, which we have already mentioned. We note s.108 which is in Part X and reads:

61. "108. More than one petition relating to same election.


Where more petitions than one are presented relating to the same election or result, all those petitions shall be dealt with as one petition".


  1. The practice has developed in Samoa of using a document called a cross petition or counter petition to be relied on by a person who is respondent to the petition. That person may be the person who polled the highest number of lawful votes and the person whom the petitioner wishes to unseat. It appears to us that the practice we have just mentioned may be based on s.111(6) of the Act which reads:-

"(6) On the trial of an election petition complaining of an unlawful declaration or report and claiming the seat for some person, the respondent may give evidence to prove that that person was not duly elected, in the same manner as if he had presented a petition against the election of that person."


63. We have earlier mentioned that the Act s.102 relevantly provides that:


"102. Persons charged with corrupt practice may be found guilty of illegal practice.


"Any person charged with a corrupt practice may, if the circumstances warrant that finding, be found guilty of an illegal practice, and any person charged with an illegal practice may be found guilty of that offence notwithstanding that the act constituting the offence amounted to a corrupt practice"


  1. This provision appears to be confined to a trial conducted by a District Court Judge exercising the District Court criminal jurisdiction for an offence against the Electoral Act but we do not believe that the Legislature intended to extend this provision 102 to a trial of an election petition conducted in accordance with the Act Part X.

Before considering the evidence relied on it is first necessary to determine other relevant legal principles.


Role of Court


  1. We sit as an Election Court comprised of three Judges of the Supreme Court of Samoa required in the present case to decide questions concerning the electoral constituency of Aleipata Itupa I Lalo.
  2. Other election courts of Samoa of the same or different composition will decide matters concerning different constituencies. This Court has a number of functions some of which we have already mentioned. They are:-
    1. A Court to try election petitions – the Court consists of two or more judges of the Supreme Court (the Act s.110)
    2. A Court of Inquiry (the Act, ss.111(4) and (5) 122(2) and (3)).
    3. A Court of certification (the Act s.118)
    4. A Court required, in certain events, to report to Parliament (the Act s.119)
    5. A Court empowered to give a Special Report to the Speaker of matters arising in the course of trial which in the Court’s judgment ought to be submitted to the Legislative Assembly. (s.120)
  3. We are not a Court able to try prosecutions brought in accordance with the Act s.103, nor impose punishment for the commission of offences prosecuted (the Act s.101).
  4. We have powers to make findings which if exercised, result in disqualification of Members of Parliament from holding their seats (s.10(e)); declaring an election void (s.10(g); avoiding an election of a candidate (ss.112, 113 and 114); validating procedural irregularities (s.116) striking off votes for corrupt practices (s.114) and causing a Member of Parliament to become disqualified from being a Member of Parliament (if he becomes disqualified under the provisions of any Act (s.49(2)(d) of the Constitution).
  5. We are required to give prior notice to persons who might be adversely affected when the Court reports to the Speaker of the Legislative Assembly (s.119(2) and, after notice, to continue with a general inquiry.
  6. We are not required to permit a petitioner to withdraw an election petition but have power to give leave to withdraw such petition upon special application made in the prescribed manner (s.127 (1). No application for such leave to withdraw shall be made until the prescribed notice of the intention to make it has been given in the constituency or among the individual voters to which the petition relates (s.127 (2)).
  7. By s.127 (3) where there are more petitioners than one, an application to withdraw the petition shall not be made except with the consent of all petitioners (s.127(3).
  8. We have power ourselves to order any person who appears to us to have been concerned in the election to attend as a witness. Every person who refuses to obey such order shall be guilty of contempt of court (s.122 (2)).
  9. We note that under s.122 (3) we may examine any person so required to attend or any person in court although he is not called or examined by any party to the petition.

74. We sit as judges of fact and law, each independent in our judgment.


  1. We note here s.114 under which on the trial of an election petition claiming the seat for any person a candidate is reported by the Supreme Court to have been guilty of named corrupt practices in respect of any person who voted at the election there exists power to strike off votes as stated in the section.

Totality of Evidence


  1. This Court sitting as a court trying cases must consider its verdict or finding on each charge and it does so by considering all the evidence called before it in relation to the charge it is then considering. That evidence may have been oral from the witness box or by affidavit or both oral and by affidavit. The Court has had the benefit of seeing and hearing each witness in the witness box and observing his or her demeanour. What the Court seeks is credible evidence i.e. evidence on which it believes it can safely act.
  2. When considering each charge in the petition (or counter petition) this Court bears in mind that the petitioner (or counter petitioner) bears the onus of proving the respondent’s guilt on each charge brought and that the standard of proof in each charge is proof beyond reasonable doubt. We have earlier written on the onus and standard of proof and we do not propose to add to what we have said.
  3. We do not, as it were lump all the charges together in order to consider the evidence and decide guilty or no – we consider each charge and evidence relating to that charge separately from other charges and separately from the evidence in relation to those other charges.
  4. We point out that apart from the affidavit evidence given by a witness in respect of a particular charge that same witness frequently gave oral evidence and was cross-examined. His oral evidence in the witness box became part of the overall body of evidence relevant to the particular charge and it was taken into account by this Court when, as judges of the facts, this Court was considering its verdict in respect of that charge.
  5. It was only after all evidence was received concerning a particular charge that this Court was in a position to decide whether or not the petitioner had proved beyond reasonable doubt the guilt of the person against whom the charge was brought.
  6. When it came to the counter petition this Court considered the evidence in relation to each charge separately, it considered each charge separately and decided whether or not the counter petitioner who was the respondent named in the petition and who bore the onus of proof of the charges he had made in his counter petition, had proved the party against whom he brought charges was beyond reasonable doubt guilty.

Calculation of Time for holding a General Election


  1. The Parliament of Samoa has a formula for calculating a prescribed time for holding a general election. However the timing of an election may not be decided by the Government or the Prime Minister until late in a Government’s term of office.
  2. Parliament might be dissolved early because of a vote of the House. The Prime Minister might decide to advise the Head of State to permit the holding of an early election and do so seeking to gain a tactical or political advantage over its opposition.
  3. In the Constitution of the Independent State of Samoa Act 1960 Parliament enacted Articles 63(4) and 64 which read:-

"63. Prorogation and dissolution of Legislative Assembly –

...


(4) The Head of State shall dissolve the Legislative Assembly at the expiration of 5 years from the date of the last preceding general election, if it has not been sooner dissolved.
  1. General elections – There shall be a general election of the Legislative Assembly at such time within 3 months after every dissolution of the Assembly as the Head of State appoints by notice in the Samoa Gazette"
  2. Thus Parliament has chosen a mandatory period being 5 years from the date of the last preceding election as the maximum term for a Legislative Assembly to be in power before the Legislative Assembly is dissolved and Samoa moves on to elect a new Legislative Assembly.
  3. The Court heard unchallenged evidence that the last preceding election was on 2nd March 2001. Thus, if it were not sooner dissolved, the government elected on 2.3.2001 was to be dissolved by the Head of State on that date which was 5 years from 2.3.2001. In the events which happened the 5 years expired on 2nd March 2006 and 31st March 2006 was the date for the general election of the Legislative Assembly fixed by the Head of State.
  4. We mention that we heard evidence from the Clerk of the Legislative Assembly and also the Electoral Commissioner. This Court is grateful to these witnesses for their assistance by giving evidence on this issue.

Calculation of times under s.97A


  1. We now return to s.97A of the Electoral Act dealing with Conduct of "O’o" and "Momoli" and particularly the arithmetical calculations to be made under that section which section we have earlier set out at [para 15]-
  2. Again it has been necessary to make arithmetical calculations in order to find out "the period commencing with the 180th day and ending with the 90th day from expiry of the then Parliament at 5 years from the date of the last preceding General Election" (s.97A).
  3. The Court was told and accepts that the date of the last preceding General Election was 2nd March 2001; 5 years from that date was the 2nd March 2006.
  4. Our calculations (which take into account s.10 (2) of the Acts Interpretation Act 1974) are:-
  5. We should say that in making these calculations we have borne in mind the provisions of s.10 (2) of the Acts Interpretation Act 1974 which reads:-

"10(2) When any Act or any provision of an Act is expressed to take effect "from " a certain day, it shall, unless a contrary intention appears, take effect immediately on the commencement of the next succeeding day"


Mistake of Fact


  1. In respect of the following gifts of "O’o" and "Momoli" Mr Vaai has made submissions in respect of the following charges of bribery alleged to have been committed by his client, the respondent:
    1. Allegation 5(a) – gifts at Tiavea on 5.12.2005 of $1500 and 100 loaves of bread in order to induce the village of Tiavea to vote
    2. Allegation 5(b) – gifts at Satitoa of $1500 to Lesa Toni between 5.12.2005 and 7.1.06 in order to induce the village of Satitoa to vote.
  2. Mr Vaai pleaded in respect of allegation 5(a) that if the Court concluded that the actus reus of the offence had been proven, that the respondent Paepae made an honest and reasonable mistake in presenting his O’o and Momoli on 5th December as he intended to be within the time period allowed by law for making such presentation. Mr Vaai submitted that his client’s action is within the principle laid down in Proudman v Dayman (1941) 67 CLR536 and therefore his client should be found "not guilty".

He made a similar submission in respect of allegation 5(b)


  1. In our opinion Proudman v Dayman, a decision of the High Court of Australia, is relevant only if there is evidence justifying a defence of honest and reasonable mistake of fact. Mr Vaai has cited the following extract from Proudman v Dayman -

"As a general rule an honest and reasonable belief in a state of facts which if they existed would make the defendant’s act innocent can afford an excuse for doing what would otherwise be an offence. The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts which if true would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt".


Mr Vaai also refers to one commentator who has written


"The mistake must not only be a genuine one on the part of the accused, but it also must be assessed as acceptable according to the objective standard of the reasonable person"


  1. A preliminary hurdle for this so called defence in the present case is that the evidence must show an honest and reasonable belief by Paepae in a state of facts.
  2. Here the evidence falls short of that and indeed discloses not a mistake of fact but a mistake of law based on ignorance of the law.

S.25 of the Crimes Act 1961 reads:


"The fact that an offender is ignorant of the law is not an excuse for any offence committed by him"


  1. In our opinion the offences allegedly committed in allegations 5(a) and 5(b) were indefensible being based on a belief as to what was a matter of law and the respondent is guilty of those 2 offences which it should be noted are "corrupt practices" within sections 95 to 98 (both inclusive) of the Electoral Act.
  2. If we should be wrong in our opinion that the respondent is guilty of the above 2 offences and that mistake of fact does properly fall to be considered in respect of allegations 5(a) and 5(b) then we consider that the oral evidence given by the respondent fell short of satisfying us that there was a credible mistake on his part.
  3. We base this finding partly on evidence, which we noted the respondent gave in Court. He told us he first knew somewhere around October or November that the election date had been moved to 31 March, that in November, after the death of his brother he decided to run as an election candidate and that in November (on a date he could not recall) he resigned from the Police Force.
  4. The respondent was an obviously intelligent man who made a decision to become a candidate at the then forthcoming election and did so only after his brother’s death. We formed the impression of him while in the witness box, that his decision to become a candidate was hurriedly made and that he did not keep his finger on the election date pulse but rather, when he did find out that the date had been moved to 31 March, committed the offences in 5(a) and 5(b) recklessly, hoping to pick up some votes from the activities on 5 and 7 December and knowing that his activities were beyond the safe dates for O’o and Momoli. We find the respondent guilty of the offences in charges 5(a) and 5(b).

Petitioners Allegations against Respondent


  1. The Petitioner’s allegations of bribery made against the respondent are particularised in Paragraph 5 of the petition. These allegations cover the period 5th December 2005 to 29th March 2006 (both dates inclusive). (see paragraph 20 ante). We have already found the respondent guilty of charges 5(a) and 5(b).
  2. The petitioner alleged that the respondent committed treating on 7 occasions particularised in paragraph 6 of his petition. These offences are alleged to have occurred between 21st January 2006 and 25th February 2006 (both dates inclusive) (see paragraph 21 ante)
  3. We have already dismissed (for lack of evidence) the allegations in paragraphs 5(i) (24th March 2006) and 6(g) (25 February 2006). We have found that the conduct of "O’o" and "Momoli" was permitted in the period commencing on 3 September 2005 and ending on 2 December 2005). We have also found that in terms of s.99A of the Act the period of election defined in s.99A (1) applicable in the instant case was from 3rd March to 31st March 2006.
  4. As Mr Enari, Counsel for the Petitioner submitted there are 5 charges of what he called "common bribery". The remaining charges are counts 5(c), 5(d), 5(e), 5(g) and 5(h). He further pointed out that the recipients of the alleged bribes are accomplices and the danger of convicting on the uncorroborated evidence of an accomplice. As he also correctly pointed out it is this Court’s task assess the credit worthiness of each accomplice. He submitted that in respect of the charge in paragraph 5(h), 2 witnesses corroborated each others evidence.
  5. We have heard and read quite lengthy submissions from Mr Enari submitting that the petitioner has proved beyond reasonable doubt the respondent’s guilt of the bribery alleged. We have also considered submissions by the respondent’s counsel.

We have considered submissions from counsel the evidence from the witnesses, and the witnesses themselves, and at the end of the day have decided that the petitioner has failed to prove beyond reasonable doubt the respondent’s guilt of any of the remaining charges of common bribery


  1. We turn now to the remaining charges of bribery – see paragraph 5(f) and 5(j). One of these 5(f) concerned gifts of money and fine mats at a funeral.
  2. The evidence touching this charge showed a dispute as to whether there was any connection between the respondent Paepae and the family of the deceased. Paepae’s evidence was uncorroborated. The evidence showed that these particular presentations caused some disquiet in the family of the donees because it is said to be a requirement of Samoan Culture that anyone making a presentation at a funeral must give good grounds for making the presentation and here there was no evidence of such grounds. This lack had led to the family being mystified at the presentation. Mr Enari in his outline of argument referred to "suspicion" of the basis for the presentation by the Respondent". Suspicion alone does not prove guilt. We find that the Petitioner has failed to prove beyond reasonable doubt the charges in paragraphs 5(f) and 5(j).
  3. There remain then the allegations of treating made in paragraph 6 of the Petition. Of these the allegation in paragraph 6(g) has already been dismissed for lack of evidence.
  4. Mr Enari has recognised that in effect the outcome of each of the 5 remaining charges of treating defends on the Court’s judgment of the witness’s credibility. He recognises too the need for corroboration and the danger of convicting on uncorroborated evidence.

In evidence the respondent denied all charges and, in respect of some, said that he was not at Samusu (where the offences are alleged to have occurred) because he was in Apia all the time because he was involved in preparations for and in the funeral at Apia of a Cardinal of the Roman Catholic Church. It was undisputed that the respondent was involved in the funeral celebration and rites for Cardinal Pio Taofinuu in Apia.


  1. In short, the respondent Paepae denied that he was at Samusu the place where he was alleged to have committed each of the treating offences because his involvement in and presence at the funeral in Apia meant that he simply could not have been at Samusu at the time of the offences alleged to have been committed on 21st January 2006, 28 January 2006 and 4th February 2006.

112. Treating is alleged in paragraph 6(a), 6(b), and 6(c) on these above dates.


The evidence before us showed Paepae to be a person of some importance in the Roman Catholic Church in Apia. And Mr Enari submitted that Paepae did not provide the Court with sufficient evidence upon which to base his defence of alibi and to allow the petitioners to test the defence.


  1. The Petitioner’s submission is that it would have been quite possible for Paepae to have attended the Cardinal’s funeral at Apia and on the same day have treated as alleged at Samusu. The court heard evidence as to distances and travelling times but on all the evidence relevant to the charges in paragraphs 6(a) (b) and (c) of the Petition we are not satisfied beyond reasonable doubt that Paepae is guilty of any of those charges. The persons named in those charges whom the respondent is alleged to have treated were persons whose creditworthiness did not assist the petitioner to prove the offences alleged in paragraphs 6(a), 6(b) and 6 (c) of the Petition. We also formed the same view of the petitioner’s creditworthiness.

Bribery

??

  1. We return to this offence and mention that the Act, s96 (3)(a), as worded and strictly construed, gives the appearance of creating an offence of strict liability. Such cannot have been the intention of Parliament and the interpretation is rejected. The Act in s.2 (1) recognises that there is a distinction between corrupt and illegal practices, regards the former as being more serious (s101), and permits alternate conviction of the lesser offence involving strict liability (s.102). It requires the element of "corruptly" in its definition of the different and lesser offence of treating (s97 (2)). It is inconceivable that Parliament would convert the offence of bribery into that of simply the making of a gift with a state of mind, which hoped the outcome to be to his advantage. There must be an element of corruption in the mind of the donor. We note that bribery is one of several "Corrupt Practices" in Part IX of the Act.
  2. We adopt the conclusion reached by this Court in Olaf v Chan Chui [2001] WSSC 18 (31 May 2001) in applying the earlier decision of In the Wairau Election Petition [1912] NZGazLawRp 37; (1912) 31 NZLR 321, Re Election Petition Anoama'a East Territorial Constituency: Faamatuainu Tala Mailei v Savea Sione (unreported Supreme Court Misc No 6007 28/7/1982) that:

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


  1. The analogy can be made with crimes involving misappropriation of money, abuse of public office and receiving. The criminal law requires proof of dishonest intent. A trustee who pays money to another wrongly but with no corrupt or dishonest intent may be liable in civil law, but not criminal. A receiver of stolen property must have a belief and had mere suspicion that what he is receiving is stolen property. We will return to that distinction upon considering the application of the law to our findings of fact.

Custom, Tradition and Ritual


  1. Custom is uniform throughout Samoa except for a few variations from the norm in some villages. The word "aganu’u" describes general custom and the word "agaifanua" describes the variations in custom in some villages.
  2. It has been the custom at the end of a parliamentary term for a Member of Parliament to formally return his parliamentary seat to his constituency by making a presentation of money and food to his constituency. This practice is accompanied by a speech by or on behalf of the Member of Parliament thanking his constituency for their support during the parliamentary term, which has ended, and seeking their support for the next election if the Member wants to run again. Such a presentation of money and food by a Member has been described as a "o’o" or "momoli". The two terms have been used interchangeably to mean the same thing.
  3. The problem which arose is that o’o and momoli, particularly if it is accompanied by a request for support from the constituency in the next election, ran the risk of offending the provisions of the Electoral Act 1963 on bribery and treating because there was no provision in the Act to exempt o’o and momoli from the requirements of bribery and treating. And since the law prevails over custom in the event of a conflict, a Member of Parliament who runs again in the next election and is successful, faces the risk of having his election declared void by the Court on an election petition. The issue arose before the Court in Re Territorial Constituency of Sagaga Le Usoga Election Petition, Muagututagata Peter Ah Him v Maulalo Tavita Amosa [2001] WSSC 16 where it was held that the o’o of the successful candidate who was the sitting Member of the constituency constituted bribery and his election was therefore declared void.
  4. In the same case, concern was expressed from the Bar that if the ‘o’o and momoli’ of the sitting Members of Parliament were legalised it would place them at an advantage over other candidates in the next election. It was therefore submitted that for there to be a level playing field for all concerned, other election candidates should also be permitted to make ‘o’o or momoli’ to their constituencies. The outcome of all this was the Electoral Amendment Act 2005 which introduced into the principal Act the present s.97A which permits a Member or Candidate for Parliament to make a presentation of ‘o’o’ and ‘momoli’ within a defined period without that presentation being considered bribery or treating or an illegal or corrupt practice or activity. So legal immunity was conferred on o’o and momoli provided it was performed within the defined period.

Briefly expressed then, s.97A


(1) Extended the permitted custom to all candidates for election, whether sitting members or not, to achieve fairness and equality of opportunity.

(2) Exempted the custom of ‘o’o’ or ‘momoli’ from the offences of bribery illegal or corrupt practice but only during a prescribed period.

The above comments are in addition to what we have already written on O’o and Momoli at paras 89-93.


Illegal practices and funeral exemption


  1. Illegal practices in relation to an election or by-election are dealt with under ss.99 and 99A of the Electoral Act 1963. Section 99 is not relevant to this case but s.99A is relevant and provides as far as relevant:

122. 99A. Illegal activities during period of election –


(1) In this section "period of election" means the period during any election or by-election, commencing on the day after the Commissioner gives public notice of polling day and ending at the close of poll on polling day.

(2) Every candidate who, during a period of election, except at a funeral, directly or indirectly, by himself or by any other person on his behalf, renders or makes presentation of any food, beverage, money or other valuable to an elector of his constituency or to an individual voter, at a ceremony or activity, is guilty of an illegal practice.
  1. The effect of s.99A is to impose an absolute prohibition on the acts of giving or exchange of food, money or other valuable at a ceremony or activity, except at funeral, during a prescribed period described as the "period of election". It is not required that such acts of giving or exchange be accompanied by a corrupt intent in order to constitute an illegal practice. Thus s.99A creates a strict liability offence which is punishable under s.101.
  2. The expression "period of election" is defined in s.99A(1) in relation to an election or by-election to mean the period commencing on the day after the Commissioner gives public notice of polling day and ending at the close of poll on polling day. For the general election held on 31 March 2006, the Commissioner gave public notice of polling day on 3 March 2006 so that the period of election commenced on 4 March and ended at the close of the poll on 31 March. Any presentation of food, money or other valuable made by or on behalf of an election candidate at a ceremony or activity, except a funeral, during the period of election would be an illegal practice (s.99A(2)). Likewise every elector or voter who accepts, obtains or attempts to obtain any food, money or other valuable from an election candidate at a ceremony or activity, except a funeral, during the period of election would also be guilty of an illegal practice (s.99A(3)).
  3. Section 99A does not define what is a "ceremony or activity". However it is clearly implicit from the wording of s.99A (2) and (3) that a ceremony or activity refers to such occasions when Samoans are expected or required as a matter of custom to make presentations of money, food, fine mats or other valuables. These occasions include a funeral, wedding, dedication of a new church or saofa’i (conferral ceremony for a matai title). Whilst a funeral is exempted from the prohibition in s.99A, other ceremonies or activities are not.
  4. An issue that was raised by the Court with counsel during the trial is whether the funeral exemption applies to every funeral since the exemption is worded as "except at a funeral". It should be noted that the exemption does not really relate to a funeral as such. It really refers to a presentation of food, money, or other valuables made by or on behalf of an election candidate to an elector or electors of his constituency at a funeral during a period of election. Counsel for the petitioner said that the exemption refers to the funeral of a relative of an election candidate. If the exemption is so restricted then what about the funeral of a priest, catechist, pastor, pastor’s wife, paramount titleholder (alii sa’o) or tu’ua of the village of an election candidate who is not a relative? These are also the kind of funerals to which one would be expected, by custom to make presentations of food, money, fine mats or other valuables. What about the funeral of a close friend or fellow employee of an election candidate who is not a relative? These are also the kind of funerals to which one would be expected, as a matter of human relationship, to make a presentation. The point is that the funeral exemption as it is presently worded has not been restricted by the legislature to the funerals of relatives of an election candidate or to any particular category of funerals. The exemption seems to apply generally.
  5. It is also to be noted that the general prohibition in s.99A applies to a presentation of food, money or other valuable made by or on behalf of an election candidate during a period of election to an elector of his constituency at a ceremony or activity. There is no requirement that an elector to whom such presentation is made must be a relative of an election candidate. It can be any elector. That is the general prohibition from which presentations made by election candidates at funerals are exempted. There is nothing in s.99A which qualifies the exemption by restricting it to funerals of families of electors who are relatives of an election candidate. If a partial exemption was intended for funerals, the exemption should have been qualified. As it is, the exemption is not a partial but a total exemption from the general prohibition in s.99A.

Facts


  1. It is convenient to consider the factual material adduced on the trial within a number of identified categories which categories are:

(1) Gifts to individuals who included the elector Ioane Logo.

(2) Gifts to individuals who included Mikaele Matiasi.

(3) Gifts to the villagers.

(4) Gifts to the family at the funeral of Seupale Tiva.


Gifts Involving Ioane Logo


  1. These allegations involved claimed gifts of money or alcohol at the village of Samusu on 21 January 6(a), 28 January 6(b), 11 February 6(d) and 25 February 2000 6(e). Samusu was the home village of the respondent, Paepae Kapeli Sua ("Paepae"). The allegations were ones of bribery or treating.
  2. The Court is not satisfied beyond reasonable doubt that the respondent Paepae is guilty of the offences although it is not necessary to consider the evidence in detail, except to state that the Court is not satisfied to the requisite degree that the events occurred. Our reasoning can be summarised as:
  3. (1) All of the alleged gifts were to Ioane Logo and Mikaele Matiasi. We would

point out that charges involving Mikaele Matiasi 6(g), Faaletaua Tofilega 5(i) and 6(g) have already been dismissed for lack of evidence. Matiasi did not attend Court when requested as a witness and a warrant issued for his arrest. He was a witness named by counsel for the petitioner brought before the Court by warrant but not called.


  1. (2) The sole remaining witness was Ioane Logo who, on his own account, was a party to the receipt of the gifts and must be regarded by this Court as an accomplice (the Act, ss96(7), 97(3). It is permitted, but dangerous, to convict on the uncorroborated evidence of an accomplice.
  2. (3) Some of the evidence given by Ioane Logo was inconsistent, evasive and self-serving. An example will suffice. He claimed innocence in accepting the money, but guilt on the part of the respondent.
  3. (4) In respect of some of the allegations, the case was circumstantial in nature. The witness Logo claimed to have seen his compatriots enter a home in which Paepae was present and later emerge with liquor. We are asked to infer that it was the respondent, Paepae who had provided the gifts. A court or jury, and here we are both, ought not convict on a wholly circumstantial case unless satisfied beyond reasonable doubt that there was no reasonable alternate hypothesis consistent with innocence open on the evidence. We are not so satisfied that there is no other hypothesis. Indeed, in each instance, we are satisfied affirmatively that there exists a reasonable alternative hypothesis consistent with innocence.
  4. (5) But there are more compelling reasons for our conclusion and these arise from consideration of the evidence touching the events of 21 and 28 January. Cardinal Archbishop Pio Taofinuu, the first Polynesian Cardinal ever appointed, died on 19 January 2006. There could not have been greater reason through Christian values and customary duties and observances for the holding of rites, ceremonies and marks of respect, grief and honour to mark the event. The ceremonies were conducted throughout the period 21 – 28 January. Paepae is a prominent Roman Catholic who was responsible for some of those ceremonies. Two in particular are significant. On 21 January, a solemn mass for the late Cardinal was held in Apia. It would be difficult to believe that a prominent Catholic would not attend that ceremony. On 28 January at 9am, the Funeral Mass was held at Apia, a solemn occasion taking considerable time and followed by a day of events, both mourning and celebrating the death of an Archbishop, Cardinal and Samoan is as unbelievable as the novel, the Da Vinci Code. It destroys the credibility of Logo and his accounts of events. On the evidence there is a minimum time of 1 hour, 30 minutes to travel from Apia to Amusu. The witness Logo claimed that on 21 and 28 January the respondent Paepae, between 5 and 7am gave him and Matiasi bottles of Vodka, asking them to remember his candidacy for election. That a man would forego, or leave such solemn ceremonies, drive for 1½ hours and possibly return to the ceremony unnoticed is beyond credibility.

It must follow that we cannot be satisfied beyond reasonable doubt that charges 5(g), 6(a), 6 (b), 6 (d) and 6 (e) have been proved; each charge ought be dismissed.


Gifts Involving Mikaele Matiasi and Faaletaua Tofilega


  1. These charges, 5(c), 5(e) and 6(c), ought be similarly dismissed. They are said to have occurred on 4, 18 February and 11 March at Samusu. Neither man gave evidence, in circumstances already stated. In each case only one witness, Afioa'e Potoi Su'a, Penitito Aukusitino and Tielu Feu, gave evidence. Each was a supporter of the petitioner. Their initial statement, in similar form and terms, was taken, not by a lawyer, but by the petitioner's agent and later put in affidavit form. The circumstances of the taking of the statement, the similarity of language, and the inadequate form of checking by the witness, weakens the impact of their evidence.
  2. We make no finding that Afioa’e Potoi Su'a or Penitito Aukusitino committed perjury, but in each case their evidence was inconsistent and contained internal contradictions. Their evidence was unreliable each instance the petitioner's case depended on the uncorroborated evidence of a single accomplice. The respondent gave evidence denying the charge. Whilst it is permitted to convict on such evidence, a court should be careful in so doing.

We are not persuaded, to the requisite degree, that the allegations have been proven and would dismiss the charges of bribery (5(c) and (e) and treating 6(c).


138. Gift to Kovati Soopaipa


  1. This allegation, 5(d), concerns an event said to have occurred on 25 February 2006. The evidence by the witness Kovati Soopaipa was that at Utufaalalafa on Saturday, 25 February 2006 while he was playing volleyball, Paepae came by in his van and called out to him to come for a ride to Vailoa to put some petrol in his van. As he is acquainted with Paepae he accompanied him to Vailoa. Kovati said that on the way to Vailoa Paepae bought two bottles of beer for him and when they returned the van stopped and picked up some people at Saleaumua before they drove to Paepae’s home at Samusu. Some of these people were Faaletaua Tofilega and Mikaele Matiasi. Kovati also said that at Samusu Paepae gave him $30 and asked him to bear in mind the election. The alleged purchase of two bottles of beer by Paepae for Kovati is not the subject of any allegation of treating in the petition.
  2. 2) The names of Faaletaua Tofilega and Mikaele Matiasi appeared on the petitioner’s list of witnesses but these persons did not appear when called to testify by the petitioner. Summonses were then issued for their attendance. When Faaletaua Tofilega subsequently appeared and was called by counsel for the petitioner, he was on the witness stand un-sworn for a short time and his announced evidence appeared to be inconsistent with what is in his affidavit prepared on behalf of the petitioner. Counsel for the petitioner then applied for Faaletaua to be stood down and he was accordingly stood down. He was not called as a witness again. The Court was also informed that Mikaele Matiasi was outside the Courtroom but he was not called in to testify. In consequence there was no evidence to corroborate the evidence of Kovati Soopaipa against Paepae.
  3. 3) On the evidence of Kovati Soopaipa, he would be an accomplice. Even though the Court may convict on the uncorroborated testimony of an accomplice if it is satisfied of its truth, it must bear in mind that it is dangerous to do so.
  4. 4) Paepae in his evidence denied that he was at Samusu on 25 February 2006 and therefore he could not have given $30 to Kovati Soopaipa at his home at Samusu on that day. Paepae said that in the morning of Saturday, 25 February 2006, he attended the village council meeting of Leauvaa where he holds the title Tevaga. After that he went to Salani, Falealili, to the conferral ceremony of the title Fuimaono on his daughter Juliana Su’a. A saofai certificate was produced to confirm that the conferral ceremony of the title Fuimaono on Paepae’s daughter was held on 25 February 2006. Paepae also said that after the conferral ceremony he and his family returned to his home at Lalovaea in Apia to prepare for the traditional Sunday toonai (lunch) which follows a conferral of title ceremony. This was held at Salani the following day.
  5. 5) Paepae also testified that he distinctly remembers that on the last day of December 2005, Kovati Soopaipa, with whom he is acquainted, came and begged him for some money to feed his family for the New Year and said he would pay it back. Paepae said he pitied on him and gave him $30.
  6. 6) We have decided to accept the evidence of Paepae, which was supported by documentary evidence, that he was not at Samusu on 25 February 2006 and therefore could not have given any money to Kovati Soopaipa at Samusu on that day. We therefore reject the uncorroborated testimony of Kovati to the contrary.
  7. 7) We are also not satisfied beyond reasonable doubt that Paepae had the requisite intent for bribery when he gave $30 to Kovati Soopaipa who is an acquaintance and whom Paepae said had begged him for money on the last day of December 2005 to feed his family for the New Year and he would pay it back.

8) Charge 5(d) is therefore dismissed.


Gifts to Villages


  1. We find, and there is but a minor dispute as to date, that the respondent made presentations to the villages of Tiavea and Satitoa on 5 and 7 December 2005, as alleged by particulars 5(a) and (b). We find that the customary and formal rites were observed on both occasions. The presentations were made outside of the period permitted by the Act, s97A. We are satisfied that the acts performed were proscribed.
  2. The election was held on 31 March 2006. However, evidence showed that at some earlier stage it was reported, correctly or not is irrelevant, that the Prime Minister had suggested the appropriate election date to be 24 February. There was some confusion about this. The warrant, for the original and correct date, was issued but not announced until 3 March. There was some understandable confusion in late November and early December, a time shortly after Paepae had decided to replace his recently deceased brother, the previous sitting member, as a candidate for the election. The Commissioner himself placed a notice at his office on 3 December stating that the permitted time for O'o and Momoli had elapsed. There was no general public announcement. That was unfortunate. The general confusion caused him to believe, wrongly, that the "change" to the latter date altered the period permitted by the Act, s97A, to an end date of 31 December. He was wrong to do so. It might be that he was careless with his enquiries or even opportunistic his calculations, but such does necessarily give rise to criminal responsibility. In doing so he erred.
  3. The presentations were to the village, itself a living entity through its chiefs and orators. He believed that they were entitled to receive the presentations as a lawful O'o or Momoli. He believed the chiefs and orators to be the lawful recipients of his presentations. In the exceptional circumstances of general confusion caused by the incorrect reporting of the election date as 24 February, later corrected to 31 March, and differing interpretations of the meaning of the Act, s97A, the respondent apparently genuinely, if mistakenly and carelessly, believed that the matai and orators of the villages of Tiavea and Satitoa were lawfully entitled to receive the presentation of 1,500 tala, loaves of bread and 1,500 tala respectively. That he hoped to gain advantage from the presentations is self-evident as is the fact that they were unlawful. They were a corrupt activity not within the protection of s.97A.

?

  1. The application of the law to our findings of fact has led us to conclude that he is guilty of the offences of bribery alleged in the petition, paras 5(a) and (b).

Presentation at funeral of Seupule Tiva


  1. It is alleged in para 5(f) of the petition that at Satitoa on Sunday, 12 March 2006, the respondent in the company of another orator Leia Tavita made a presentation of $300 and one large fine mat to the funeral of Seupule Tiva a matai of Satitoa. These details of the allegation appear in the affidavit of the witness Leota La’i Tauese for the petitioner.
  2. There was no dispute that the presentation was made within the "period of election" prescribed by the Act, s.99A(1). This period was from 4 March to the close of the poll on 31 March. We do not accept the claims of the respondent Paepae that he had made the presentation as a blood relative or matai of equal rank to the deceased.
  3. Counsel for the petitioner in his submissions put the issue as follows. Section 99A prohibits and makes it an illegal practice for an election candidate to make a presentation of money or other valuable during a period of election to an elector of his constituency at a "ceremony or activity". A funeral would come within the meaning of the words ceremony or activity, but a presentation at a funeral is exempt from the prohibition (s.99A(2)). What is in dispute, according to counsel for the petitioner, is whether the presentation was in accordance with Samoan custom and therefore attracts the exemption or whether it was not in accordance with Samoan custom and therefore falls outside the exemption. Counsel then went on in his submissions to explain why he considers that the presentation by Paepae was not in accordance with Samoan custom and therefore falls outside the exemption. This he submitted is because the relevant witnesses for the petitioner testified that Paepae and the deceased were not blood relatives.
  4. We have already dealt with s.99A in this judgment. Subject to a stated exception it prohibits an election candidate from making a presentation of food, beverage money or other valuable during a period of election to an elector of his constituency or to an individual voter at a ceremony or activity. This is a general and absolute prohibition. Whether or not the elector to whom the election candidate made the presentation is a relative or not is immaterial. Likewise, it is immaterial whether the presentation by the election candidate was made in accordance with Samoan custom or not. So long as the presentation is one that comes within the prohibition it is an illegal practice. Liability is strict and there is no requirement that the presentation must be accompanied by a corrupt intent.
  5. The only ceremony or activity that is exempted from the general prohibition in s.99A is a funeral. This must mean that an election candidate who makes a presentation of food, money or other valuable during a period of election to an elector of his constituency at a funeral would not be found guilty of an illegal practice. There is no qualification on the exemption that the presentation must be made at a funeral by an election candidate to an elector of his constituency who is a relative or that the presentation must be in accordance with Samoa custom. If there is to be a qualification on the exemption then that is a matter for the legislature to decide.
  6. It follows that the presentation made by Paepae at the funeral of Seupule Tiva is covered by the exemption in s.99A.

Allegation 5(f) of the petition is therefore dismissed.


155. Counter Petition


Status of Petition and Counter Petition


Logic would suggest that where a petition is dismissed, say through a successful no case submission, the counter petition ought also be dismissed instanter. After all, the elected member is not disqualified so there is little purpose for further investigation or trial of the conduct of the original petitioner who remains an unsuccessful candidate.


  1. Nevertheless in the present state of the practice of this Court we do not accept the conclusion. The Act, s113, applies where it is reported by the Supreme Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidate thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the candidate’s election, if he has been elected, shall be void. The Act, s119, through its use of the word "shall" requires the Court where in any election petition any charge is made of any corrupt or illegal practice having been committed at the election to report in writing to the Speaker as required by s.119. The Speaker’s report must deal with whether any corrupt or illegal practice has or has not been proved to have been committed.

(i) by any candidate, his or her agent or another person "with the knowledge or consent" of that candidate (s119(a) and (b));

(ii) the names of all persons proved at the trial to have been guilty of corrupt or illegal practice and "whether they have received certificates of indemnity" (s119(c), 119(1)(2) and (3));

(iii) whether there is reason to believe that corrupt or illegal practice "extensively prevailed at the election" (s119(1)(d));

(iv) particular matters comprised in s119(4) which the court further reports and which apply if a candidate is reported to have been guilty by his agents of treating, undue influence or illegal practice.


  1. The duty imposed on the Court is onerous, but is the decision of the Parliament. The breadth of the duty and the resources provided for the execution of the duty might be matters for consideration when and if the Court makes special report in accordance with the provisions of s120. But it is clear that the legislation is intended to deal with corruption generally as well as illegal practices and not permit its exposure and concealment to remain the province of the respective parties.
  2. There are cogent further reasons requiring the conclusion that dismissal of the original petition (through a "no case" or ultimate finding) does not automatically result in the dismissal of the counter petition. The trial includes consideration of allegations made by the respondent (s111(6)). A second reason is the potential consequence that a challenging unsuccessful candidate may himself or herself be disqualified from presenting as a candidate at the following election.
  3. For the above reasons, we conclude that disposal of the petition by verdict does not vitiate the counter petition.
  4. There are no existing rules or statutory provisions governing the time limits and procedures for the filing of counter petitions. Indeed the Act does not use the phrase "counter petition". In our opinion they are matters which ought be addressed either by Parliament or possibly by the Head of State acting on the advice of Cabinet pursuant to s.136 of the Act. Those matters will be the subject of a special report made under s120.

161. Counter Petition by petitioner Paepae


Paepae has brought his own petition against Tautoloitua. He claims that his challenger committed acts of bribery and treating on the day of the election. No issues of custom or time are raised here.


  1. The allegations of bribery which are contained in the counter petition and which concern the giving of money are:

"3 That the petitioner could and should not be declared as being duly elected as prayed in his petition as he had committed bribery and treating by giving moneys and alcoholic beverages to electors and voters of the constituency of Aleipata Itupa i Lalo for the purpose of inducing the said voters and electors to vote for him at the General Election 2006. Instances of such bribery are:


"1) on the 31st day of March 2006 in the early hours of the election morning the petitioner committed the act of bribery when he personally gave an elector TAVALE TUSITALA of Tiavea the sum of $100.00 and asked him for his vote in the elections;

  1. On the 31st day of March 2006 in the early hours of the election morning the petitioner committed bribery when he personally gave an elector PENITITO TAIAO of Tiavea the sum of $50.00 and asked him for his vote in the elections.
  2. On the 31st day of March 2006 in the early hours of the election morning the petitioner committed the act of bribery when he personally gave an elector MAULUPE ESEKIELU the sum of $20.00 and asked him for his vote in the elections.
  3. On the 31st day of March 2006 at around 11 am in the morning the petitioner committed the act of bribery when he personally gave an elector PETELO TIA the sum of $20.00 and asked him for his vote in the elections."

163. The parallel allegations of treating are:


"1) On the 31st day of March 2006 in the early hours of the election morning the petitioner committed the act of treating when in his presence, knowledge and consent (sic) a bottle of Vodka was given to an elector TAVALE TUSITALA of Tiavea with a request to vote for the petitioner in the election;

  1. On the 31st day of March 2006 in the early hours of the election morning the petitioner committed the act of treating when in his presence, knowledge and consent (sic) a bottle of Vodka was given to an elector PENITITO TAIAO of Tiavea with a request to vote for the petitioner in the elections.
  2. On the 31st day of March 2006 in the early hours of the morning the petitioner committed the act of treating when in his presence, knowledge and consent (sic) a bottle of Vodka was given to an elector MAULUPE ESEKIELU of Tiavea with a request to vote for the petitioner in the elections.
  3. On the 31st day of March 2006 at around 11 am in the morning the petitioner committed the act of treating when in his presence, knowledge and consent a bottle of Vodka was given to an elector PETELO TIA with a request to vote for the petitioner in the elections."
  4. There are no complicated legal questions raised by the counter petition by Paepae. Either illegal gifts were made by someone or not. Either they were made by Puipui Samoa on his own account or not. Either they were made by Tautoloitua or not. Either they were made by Puipui Samoa as an agent of Tautoloitua or not. If in the circumstances, gifts were made directly by Tautoloitua or by another acting at his behest and with knowledge, he is guilty of the offence of bribery and treating.
  5. There is but one village of Tiavea, but it is locally called two, Tiavea-tai being the part closest to the ocean. The constituency of Aleipata Itupa I Lalo comprises 9 villages. Tiavea is on a secondary road which branches north of the main arterial road between Apia and the villages of Samusu, Saleaeumua and Satitoa. Unlike the last named, Tiavea has no adjoining villages and is comparatively isolated, being just south of Cape Saeivaa. It is some two hours' drive from Apia. Geographical location and relative isolation are matters significant to any determination of this case.

Events in Early Hours of Election Day


  1. The respondent’s evidence in support of his counter petition is, at first blush, relatively weak. Three electors who lived in the village, Tavale Tusitala, Penitito Taiao and Maulupe Esekielu, claimed to have been awakened in the early hours of 31st March by the arrival of a motor vehicle and an intoxicated man, Puipui Samoa, a relative of one of the families and a former resident of the village. The role of Puipui Samoa, both before and after these events is crucial in deciding whether or not the respondent has proved beyond reasonable doubt the petitioner’s guilt of any of the offences charged against him.
  2. The evidence from the three families was similar. In the early hours of 31 March, a large vehicle, variously described, arrived in the village and Puipui Samoa, obviously intoxicated, created a general disturbance. Tavale Tusitala, the brother of Puipui Samoa, and his wife Romana, testified that when awakened by Puipui, he was taken to a parked car where he met with Tautoloitia, outside of the vehicle, and was given 100 tala and a bottle of vodka with the general suggestion that the elector "show the candidate some love at the election". Other persons from adjoining or nearby houses, Penitito Taiao and his wife, Talanoa, and Maulupe Esekielu, gave similar accounts. There were weaknesses in, and minor inconsistencies between, the accounts. The claim by Tavale Tusitala that he could fix the time by reference to the crow of the cock which varies according to the hour, will or ought enter village legend. There were difficulties of light, distances and potential mis-identification which detracted from the cases of alleged bribery and treating. Alone, the evidence would not have justified a finding, beyond reasonable doubt, adverse to Tautoloitua.

168. But three things were certain:


(1) Each villager knew Puipui Samoa and Tautoloitua and claimed to have recognised the petitioner.


(2) Each witness saw but two men at or near the car and did not claim to see the presence of two others. At first glance, their testimony ought be disregarded if there was proof of the presence of others, but for reasons which will be later stated, their evidence became more credible by their claim and damning for the petitioner.


(3) There was no room for misunderstanding of the implications of their accounts. There was no room for "O'o" or "Momoli". If money and alcohol were given to the villagers by the petitioner Tautoloitua, or at least by Puipui Samoa at his behest and with his approval bribery and treating were committed by the petitioner.


If the evidence were left there, the Court would not be satisfied beyond reasonable doubt that the petitioner had committed corrupt practices.


Totality of Evidence


  1. This Court is required, as in criminal cases, to consider its verdict or finding on each charge after hearing the whole of the evidence given in respect of that charge. We have already spoken on the topics of burden of proof and consideration of evidence by the tribunal of fact.
  2. At the end of the evidence, it does not weigh that of petitioner and respondent against each other, but considers the whole and only then decides whether it is satisfied to the requisite degree.

In his counter petition the respondent retains the onus of proof of each charge beyond reasonable doubt in which the whole of the evidence relating to the charge is considered. Here there was sufficient evidence at the close of the petitioner’s case to withstand a "no case submission" or to establish a "case to answer", but not to convict.


The petitioner elected to give evidence himself and to adduce evidence through witnesses. This evidence become part of the evidence given in respect of the relevant charge. Before considering the evidence adduced by the petitioner, it is necessary to provide a brief outline of the background, role and circumstances of two persons who have been referred to in the hearing of this petition.


Polling Place


  1. Petelo Tia said he had received a bottle of vodka (the treat) and 25 tala (the bribe) from Tautotoloitua at the polling booth. His wife, Tafaoganiu Petelo confirmed his story, but the evidence showed she was too busy scrambling after the departing vehicle "for her share" to pay attention to detail. She had not previously met with Tautoloitua and her evidence of identification given at trial was vague and insufficient to establish that it was the petitioner and not another acting on his behalf. We find that it is more likely that it was another election worker and not Tautoloitua who was present at the time. It is certain that someone, possibly an agent of the petitioner, was responsible. But we are not satisfied beyond reasonable doubt that it was either Tautoloitua or a person acting on his behalf or with his knowledge and consent. The evidence of the accomplice, uncorroborated, ought not be relied upon.

Allegations 3(4) (the bribe) and 4(4) (the treat) are not made out and ought be dismissed.


Puipui Samoa


  1. Puipui Samoa is the brother of Tavale Tusitala and at the time of these events was a public servant employed by the Government Printer in Apia. He was known to the other two village families whose names were mentioned in evidence. The witnesses all claimed that he was present with Tautoloitua in the village in the early hours of 31 March. It was he who called out to Tavale Tusitala and Maulupe Esekielu and had been present when the money and alcohol were given. He was a potential crucial witness. Tautoloitua claimed in his evidence that Puipui Samoa had earlier been introduced to him, at his home at Vailima, by Fuimaono Maiava Viiga, a public servant working at the Ministry of Women's Affairs, for the purpose of presenting Tautolaitua, as a candidate, with a roll of electors, for the constituency of Aleipata Itupai I Lalo. Tautoloitua states that he had again met Puipui on 27 March in the presence of Aukuso Seumalu Sefo and later with Puipuifatu Faalagiga. Puipui Samoa said to be affected by alcohol, had promised his total support to Tautoloitua in the election before presenting him with the electoral roll, which has respective individual photographs of electors. Tautoloitua claimed at trial that he was suspicious of the conduct of Puipui at that stage. It is appropriate to set out in full the events, as described by the petitioner, leading up to the journey to Tiavea on 30 March in his affidavit sworn 10 May, para5, which states:
  2. "5 ON Thursday 30th March 2006, at around about 4:00pm, Samoa rang my home and office telephones telling my employees who answered that he was voting for Tautoloitua Farani Posala and therefore requesting and demanding transport assistance to Aleipata where he was going to cast his vote and as well as visiting his family. Eventually, at around about 8:00pm or thereabouts, a member of my work force, Puipuifatu Faalagiga, without instruction from me, picked Samoa from his home in the village of Apia and brought him to my house at Vailima, drunk and with about a dozen of large vailima beer bottles in a box. At around about 9:00pm same evening I met Samoa down at the ground floor of my house at Vailima and he told me that he was looking for transport to take him to Tiavea Aleipata. He has not seen his family for a long time. I told him that I was just about to leave for Saleaaumua with Puipuifatu Faalagiga. He immediately asked if he could join us up to Tiavea only.
  3. 6 SAMOA was drinking beer in my car up to Tiavea and did not stop my car and so we continued on to Saleaaumua. We arrive at Saleaaumua at around about 10:30pm or thereabouts, made arrangements with my family and committee members for the following morning. Samoa at that time was still drinking beer by himself inside my car that was parked near our house. At around about 12:30am or thereabouts we, Puipuifatu Faalagiga, Tolu Tavita Iosefa and Samoa left Saleaaumua for Tiavea and Vailima, Apia. When reaching the village of Tiaveauta, Samoa asked me to stop and pull the car into a family by the left hand side of the road. This was the first family stop of the three family stops commandeered by Samoa."
  4. The version of events thereafter as described by the petitioner and corroborated by Puipuifatu Faalagiga, Tolu Tavita Iosefa and Malaeulu Vaili was that Puipui Samoa had effectively commandeered the vehicles and been solely responsible for any illegal conduct at the village. Those events will be later considered in more detail.
  5. The thrust of the critique advanced by the petitioner is that Puipui Samoa:

(1) Was an agent of Paepae and reported directly to him.

(2) Had been responsible for the giving of money and alcohol to the villagers on 31 March in order to falsely entrap the petitioner.

(3) Was an agent employed by Paepae for the purpose of destroying him (the petitioner) politically and personally.


  1. Puipui Samoa originally was not called as a witness on the trial. Puipuifatu Faalagiga claimed to have interviewed Puipui Samoa on 28 April 2006 and failed to secure his co-operation. No application was made for a warrant for his arrest. No obligation existed on the petitioner to call Puipui Samoa. But the accusations made have not been tested. The petitioner, who claims Puipui Samoa to be an agent and accomplice of the respondent, has reason not to call him as a witness. Two contradictory inferences could have been suggested from his absence, namely:

(1) He was an active participant with the petitioner in the commission of electoral fraud and has absented himself or hidden to avoid the exposure of criminal conduct.


(2) He was an agent of the respondent and he Puipui Samoa engaged in a conspiracy with the respondent to give false or at least slanted evidence.


  1. Puipui Samoa appeared voluntarily at the hearing on Friday 9 June, and swore an affidavit on that day. He was subjected to rigorous cross-examination on 12 June. His evidence was damning to the petitioner Tautoloitua's cause and will be later considered in detail.

Puipuifatu Faalagiga


  1. Faalagiga was at the relevant times employed by Tautoloitua and acted as his agent, both during the election period and in the preparation of this case. He was not called as a witness for the petitioner Tautoloitua on the trial of the petition but only on the trial of the counter petition. However, the evidence established that another employee of the petitioner, Tu'u Faasavalu had interviewed many of the witnesses called by Tautoloitua in support of his petition. Here Puipuifatu Faalagiga had attempted to obtain a statement from Puipui Samoa. He corroborated much of the version given by Tautoloitua. The Court could not rely on his evidence as credible.

Evidence called by the petitioner


  1. It matters little if there were two or four persons in the vehicle in the early hours of election morning. It is common ground that Tautoloitua and Puipui Samoa were both there. Whether Puipuifatu Faalagiga and Tolu Iosefa were present is of little import. It may be that before the villagers were approached, Tolu Iosefa had gone to his own home with Faalagiga. It might be that Puipui is lying to protect another, or mistaken on this point. What is certain is the following:
  2. (1) Puipui Samoa was brought to the home of Tautoloitua and introduced to him by Fuimaono Maiava Viiga, the superior to Puipui Samoa within the Ministry of Women Affairs on 21 March. Puipui Samoa, a public servant, improperly presented him with an electoral roll. He met with him on 27 March and a later date when a further roll was improperly provided. On each occasion, Tautoloitua wrongly paid the public servant, a matter admitted by Tautolo in the course of his evidence, 50 tala, a total of 150 tala. Whether another man, Maulupe, was paid money at the same time is irrelevant. Payments to Puipui Samoa were improper.
  3. (2) Puipui Samoa and Tautoloitua travelled to Saleaamua on the evening of 30 March. Whether they picked up hitchhikers on the way as claimed, is of little consequence. It is likely, but not certain, that Faalagiga travelled on the same journey. The village of Tiavea is on the northern side of the main road to Amaile and Samusu. Puipui Samoa was not dropped off on the way.
  4. (3) There was an election committee meeting held for the candidate Tautoloitua in Saleaamua on the evening of 30 March. Puipui Samoa was not a member of that committee. Whether or not the petitioner’s vehicle was driven to Saleapaga to collect Tolu Iosefa and his wife, a matter contested, is of little import.
  5. (4) The vehicle returned with at least the petitioner, Puipui Samoa and probably Tolu Iosefa and Faalagiga. Tautoloitua visited at least one family the matai Seiuli Popoai and her sister, Togialelei Maselusa, where the election was discussed although no allegation relates to this meeting.
  6. (5) Puipui Samoa returned to Apia in the early hours of 31 March with the petitioner. He was not left at the village. He returned again to the constituency on the same day with the petitioner Tautoloitua and Faalagiga and claimed that Puipui Samoa had been returned to Apia for his protection and that to leave him at Tiavea would have exposed him to the risk of attack from the villagers. That may be correct, but permits the reasoning that he needed that protection for acts of bribery for a rival candidate, Tautoloitua, in the early hours of 31 March.
  7. (6) If bottles of vodka were handed to villagers by Puipui Samoa, they could only have come from the petitioner’s vehicle and inevitably with the knowledge and permission of Tautoloitua. There were no shops open.
  8. (7) When Puipui Samoa returned with the petitioner to Apia in the early hours of 31 March, Puipui Samoa was not dropped off at his home at Vaisigano and left there. Instead, the petitioner took Puipui Samoa with him to his home at Vailima. About 6am the same morning, Puipui Samoa woke up the petitioner and they travelled together again to Aleipata Itupa I Lalo and then travelled back together again to the special polling booth at Malifa in Apia. This was not a sign that the petitioner wanted Puipui Samoa to go away or to leave him alone as appeared implicit in the evidence of the petitioner and Faalagiga. The petitioner allowed Puipui Samoa to accompany him as he moved around on polling day.
  9. Those certain facts permit the reasoning which destroys the account given by Tautoloitua (the petitioner) and Faalagiga. They do not weaken the petitioner’s case, they destroy it and damage his credibility. None of the above requires assessment of the integrity of Puipui Samoa. We do not accept all of his evidence as a witness. We were not impressed with his overall credibility. But based on the relevant evidence we heard we have been able to put together a believable and consistent sequence of events. That sequence confirms the direct evidence of the villagers. Vodka and money were provided.

Sequence of Events of 30th and 31st March


  1. The sequence is recounted by witnesses in different ways. At best we are able to accept the sequence as recounted by Puipui Samoa and attested to by Tautoloitua is as follows:
  2. Puipui Samoa and Tautoloitua (the petitioner) left Apia at approximately 8pm. The two go to a "supermarket" and buy beer and vodka which they load into the petitioner’s vehicle. They leave Apia and on the "coast" road, pick up a man and a woman "hitching" to Samusu. The four travel south to the Le Mafa Pass and thence east to Samusu where they leave the "hitching" couple. Puipui and Tautoloitua travel to Saleapaga where they collected Tolu Tavita Iosefa and his wife and transported them to Tiavea. Thus four people arrived in the respondent's vehicle at Tiavea at approximately 10pm. Having deposited Tolu Iosefa and his wife, the vehicle, now carrying two people, Puipui Samoa and Tautoloitua, returned to Saleaamua where the election committee was meeting. Puipui Samoa does not attend the meeting since he is not a member of the committee. Puipuifatu Faalagiga does attend the meeting. Some little time before 4am, Puipui and Tautoloitua leave Saleaaumua and return to Tiavea. On the journey Puipui suggests the names of villagers whose votes can be bought and the amount required. Vodka and money are given to those named. Romana Tavale was correct – Puipui Samoa betrayed his chief and family as the cock crowed. Tavale Tusitala, whose name ought enter the village legend, was, in substance, correct. We do not necessarily accept that between the voices he could tell who was speaking and the cock’s pitch change. The interpretation and detail of that basic account is at the core of this petition. The explanation of how and why the petitioner and his vehicle came to be in the village of Tiavea and what then happened is, in the human experience, unbelievable. To accept his version, one would have to accept that a person, previously unknown to the petitioner and suspected by him to be "in the other's camp", effectively persuaded the petitioner who we thought was a strong minded person, to provide a journey, and then commandeer the vehicle to visit his family in order to "entrap" the candidate. If the petitioner is to be believed, he drove past the turn off to Tiavea, allowed a possible enemy to travel with him, returned to Tiavea and waited for a man, who had wanted simply to be taken to that village. If Puipui Samoa had simply wanted a lift to his village, then why not drop him there on the road to Samusu? Why wait in the village on the second occasion rather than just leave Puipui there? How could Puipui hide vodka in the vehicle without the knowledge of Tautoloitua?
  3. Once it is accepted that Tautoloitua was in the village at about between 3 and 4am, the evidence of the villagers makes sense and is corroborated. Someone, either Puipui or Tautoloitua gave them money and vodka. The vodka and money must have come from Tautoloitua's vehicle. How could that be so without Tautoloitua's knowledge. Why wait while Puipui does wrong unless he was a party to bribing and treating?
  4. Acceptance of the general thrust of Puipui's version is consistent with other evidence. It explains why the villagers saw only two people in the vehicle, whereas earlier there had been four. It explains the times of the second visit to the village. The version of Tautoloitua (the petitioner) is rejected. Likewise we do not accept the evidence of Puipuifatu Faelagiga or Tolu Iosefa. Puipuifatu Faalagiga was an election agent for Tautoloitua (the petitioner) and on all the evidence we suspect that he is implicated in the affair. The same can be said about Tolu Iosefa. We suspect the involvement of Fuimaono Maiava Viiga and Aukuso Seumalu Sefo in the election matters raised by this case. However suspicion does not provide proof.

Conclusion


  1. We find that the petitioner is guilty of the following offences of bribery and treating, contrary to the Electoral Act 1963 (ss96 and 97).

At the said trial the Court made the following findings of the corrupt practice of bribery within s.96 of the Electoral Act 1963:-


(A) against the above-named respondent Paepae Kapeli Su’a:-


(a) On the 5th December 2005 was guilty of committing bribery when he gave to Tolu Tavita Iosefa for the village of Tiavea the sum of $1500 and 100 loaves of bread;

(b) Between 7th December 2005 and 7th January 2006 was guilty of committing bribery when he gave to Lesa Toni for the village of Satitoa the sum of $1500.

(B) against the above-named petitioner Tautoloitua Farani Posala:-


(a) On 31st March 2006 in the early hours of election morning the petitioner was guilty of committing bribery when he personally gave the voter Tavale Tusitala of Tiavea the sum of $100 and asked him for his vote in the elections;
(b) On 31st March 2006 in the early hours of the election morning the petitioner was guilty of committing bribery when he personally gave a voter Penitito Taiao of Tiavea the sum of $50 and asked him for his vote in the elections;
(c) On the 31st March 2006 in the early hours of the election morning the petitioner was guilty of committing bribery when he personally gave a voter Maulupe Esekielu the sum of $20 and asked him for his vote in the elections;
(d) On the 31st day of March 2006 in the early hours of the election morning the petitioner committed the act of treating when in his presence, knowledge and consent a bottle of Vodka was given to a voter TAVALE TUSITALA of Tiavea with request to vote for the petitioner in the elections;
(e) On the 31st day of March 2006 in the early hours of the election morning the petitioner committed the act of treating when in his presence, knowledge and consent a bottle of Vodka was given to PENITITO TAIAO of Tiavea with a request to vote for the petitioner in the elections;
(f) On the 31st day of March 2006 in the early hours of the morning the petitioner committed the act of treating when in his presence, knowledge and consent a bottle of Vodka was given to a voter MAULUPE ESEKIELU of Tiavea with a request to vote for the petitioner in the elections.

We find the respondent guilty of bribery contrary to the Electoral Act 1963 (s.96) and declare his election void.


Chief Justice Sapolu
Justice Slicer
Justice Shepherdson


Solicitors
Kruse Enari & Barlow for Petitioner
Vaai Lawyers for Respondent
M Malietoa for Electoral Commissioner as amicus curiae

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