IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC 315/11

IN THE MATTER:
of the Territorial Constituency of Vaisigano No. 1

BETWEEN:

TUFUGA GAFOALEATA FAITUA
of Asau, a candidate for election
Petitioner

AND:

VAAI PAPU VAELUPE
of Vaisala, a candidate for election
Respondent

Coram: Honourable Chief Justice Sapolu
Honourable Justice Slicer

Counsel: S Wulf for Petitioner
R Schuster and J Annandale for Respondent 

Hearing: 12 – 15 April and 18 April 2011
Written Submissions: 21 April 2011
Orders: 29 April 2011
Reasons for Decision: 10 May 2011	

REASONS FOR DECISION OF THE COURT

1.	The general election for the State of Samoa was held on 4 March 2011 in accordance with the Constitution, Articles 63 and 64. The result of that election was announced by the Chief Electoral Officer ("the Officer") on 14 March.

2.	Voting in the Constituency of Vaisigano No. 1 was recorded by the Chief Electoral Officer as:

Vaai Papu Vaelupe	731	
Tufuga Gafoaleata Faitua	693	
Taavao Tiama Tapu	233	
Total number of valid votes	1,657	
Informal votes	13	

3.	The Respondent was, by public notice dated 14 March 2011, declared as being duly elected. Each candidate had been nominated by their respective villages of Vaisala, Asau and Auala respectively. 

4.	Following the declaration, the Petitioner commenced proceedings in this Court on 22 March 2011 seeking a declaration 'that the Respondent was not duly elected and that the election was void.' He claimed that the Respondent had committed four 'acts of corrupt practices namely bribery' contrary to the Electoral Act 1963 ("the Act"), section 96 3(a) and (c).

5.	The Respondent, in turn adduced evidence claiming that the Petitioner had committed, directly or through his agents, acts of treating, corrupt and illegal practices which would prevent him from being admitted to the Legislative Assembly.

General Background

6.	The Constituency comprises over 1,600 electors, many of whom live in the three main villages referred to above. Asau is the largest of the three villages. The Electoral Office provides four voting booths, two in Asau, one at Matavai with a second at Utuloa, and one at each of the other two villages. Each village had nominated its favoured candidate. The Respondent was the sitting member. In 2010 he had resigned his seat at the Legislative Assembly as a consequence of the operation of the Act concerning political parties. He was re-elected at the ensuing by-election. Evidence was given that he had received the support of the council of Asau so as to permit his 'serving out his term' but that members of that village had an expectation that he would return his seat and not oppose an election of a person coming from Asau or at least the village would promote its own candidate. Some of the events following the March election requiring consideration by the Court and its reporting to the Speaker are a product of those events.

7.	The Court is required in the circumstances of this case to consider matters of custom, ceremony, and the tensions between the rights of a village council, an inherited electoral system and obligations both to the laws of a nation state and a village culture.

Treating

8.	Bribery, treating, corrupt practices and the like have been considered by this Court in previous cases and require no further detailed consideration.

9.	We will apply the principles as stated or applied in Posala v Su'a [2006] WSSC 29; Vui v Ah Chong [2006] WSSC 52; Petaia v Pa'u [2007] WSSC 19 and Olaf v Chan Chui [2001] WSSC 18 and do not need to restate them. Here the question is not whether the gift made or the words used occurred since their making is not significantly disputed. It is the state of mind or intention of the Respondent which is in issue. The Petitioner accepts both the onus and standard of proof. On the facts of this case if the allegation in Ground 1 is confined to money, proof of a dishonest gift of money would produce the same outcome as that of treating. 

10.	We accept the principles governing findings of multiple intentions as stated in Posala (supra). Questions of timing or a defence of custom have been determined by this Court in Ah Him v Amosa [2001] WSSC 16, and we see no reason to depart from the general principles stated therein. We note the statements of principle pronounced by this Court, differently constituted in Moefa'auo Lufilufi v Alaiasa Schwartz Hunt (2011) unreported judgment delivered on 26 April 2011.

11.	This case concerns issues of fact rather than legal definition other than those ones involving transportation, treating and agency.

The Petition

12.	Particulars of the allegations of bribery are:

"1.	On or about the 4th of January 2011 at or about 10:20 a.m., the Respondent gave $300 tala and 1 bottle of whisky to Fao Ualesi, a matai of Asau, an elector, such conduct amounting to the corrupt practice of bribery under section 96(3)(a) and (c) of the Act in that the giving of the $300 and 1 bottle of whisky was for the purpose of inducing Fao Ualesi to vote for the Respondent;

2.	On or about the 14th of January 2011 at about 2:00 p.m., the Respondent gave $500 to Fao Ualesi, a matai of Asau, an elector, such conduct amounting to the corrupt practice of bribery under section 96(3)(a) of the Act in that the giving of the $500 was for the purpose of inducing Fao Ualesi to vote for the Respondent;

3.	On or about the 4th of January 2011, at about 12:30 p.m., one Masoe Foi, on behalf of the Respondent, gave $20 to Tineleti Mamapo, 39 years of age of Asau, an elector, such conduct amounting to the corrupt practice of bribery under section 96(3)(a) of the Act in that the giving of the $20 was for the purpose of inducing Tineleti Mamapo to vote for the Respondent;

4.	On or about the 4th of January 2011, at about 12:30 p.m., one Foi Masoe, on behalf of the Respondent, gave $20 to Kalala Sopo Tanielu, 36 years of age of Asau, an elector, such conduct amounting to the corrupt practice of bribery under section 96(3)(a) of the Act in that the giving of the $20 was for the purpose of inducing Kalala Sopo Tanielu to vote for the Respondent."

13.	Strictly speaking, the gift of whisky could be regarded as an act of treating proscribed by the Act, section 97. The terms of section 97 (2) may be interpreted in two ways. The use of the word 'or' connecting subsections (a), (b) and (c) can be regarded as three distinct manners of bribery. The use of the terms 'such' and 'aforesaid' suggest that the gift or provision is confined to money.

14.	The fourth allegation which is similar to that stated in 3 concerned Kalala Sopo Tanielu who attended the meeting. At trial she advised the Court that she was not an elector of the Constituency, a matter stated in her affidavit. The ground was withdrawn and the Court now dismisses the allegation. This case is not authority for the proposition that it is impossible in law to bribe or treat a 'disqualified voter'.

Test Applied by the Court

15.	Grounds 1 and 2, simply put, involve a testing of word against word. Fao Ualesi ("Fao") and his wife Tautalagia gave evidence that a bottle of whisky and money were given on 4 and 14 January. The Respondent does not dispute the 'gifts' but maintains that the first was a gift to family or one of respect and the second an offered payment to Fao for his services to act as 'a spokesperson for the Tautua Party.' The issue is that of inference and interpretation rather than that of an 'actus reus' (Posala, supra).

16.	Ground 3 concerns the nexus between the Respondent, his sister Foilagi Masoe and the presentation of money to the meeting of the Asau Women's South Pacific Business Development (SPBD).

17.	The Court is required to consider the various events and allegations in the context of surrounding circumstances (Barrow-in-Furness [1886] 2 TLR 356).

Ground 1

18.	On 4 January the Respondent went to Fao's home and gave him $300 tala and a bottle of whisky. Fao was and remains the paramount orator for the village of Asau. He deposed that in presenting the gifts the Respondent said,

"oute faia le measili mo oe pea ou tulai mai i le paolota." (I will do the best for you if I am elected).

19.	Fao's wife was not present when the money or whisky were delivered but claims to have heard the statement. Her evidence is corroborative although weakened in cross-examination. But what was said and done is not seriously disputed between the Petitioner and Respondent. The interpretation placed on the conduct and words of the Respondent made by the Petitioner is of little use to our consideration of the issue since we must exercise our own judgment in that interpretation. We accept that the Petitioner had reason or motive to accept the gifts without objection. We accept that he had reason not to voice rejection of the gift since it might provide a basis for future challenge to the outcome of the election. But his opinion and motive are irrelevant to our consideration of the issue except in assessing his credit as a witness. We are required to consider the surrounding circumstances.

20.	We find that the gifts were made and the mind of the Respondent was corrupt at the time of the gift.

21.	Our reasons for accepting the conclusion advocated by the Petitioner are:

(1)	as trial Judges we observed the testimony of both the Respondent and Fao, and prefer the latter's testimony;

(2)	the testimony of Tautalagia is corroborative of Fao's testimony;

(3)	the visit by the Respondent occurred on a day when, according to his own witness Masoe Serota, he was engaged in a campaign trip around Savaii;

(4)	although there were social and customary relationships between the parties, a visit to the home of another was a rare if unique event. Fao and his wife testified that the visit by the Respondent on 4 January 2011 was the first visit ever made by the Respondent to their home whereas the Respondent testified he had made a previous visit to Fao's home in January 2009;

(5)	the visit coincided with another event which involved the provision of money, directly or indirectly, to a group of electors. We are required to consider each event separately but we are entitled to pay regard to elements of similar fact or evidence of coincidence to determine intent;

(6)	 the value of the claimed gifts seem excessive for either a formal or casual meeting as claimed by the Respondent or which may be said of a charitable exercise of good will (Law and Conduct of Elections, Parker, Vol. 1, 20.5); and

(7)	the time of their making in relation to an election.

22.	The Petitioner bears the onus of proof but where a defendant (in criminal cases) or respondent (in election cases) gives evidence, the Court is required to assess the totality of the evidence. Here the Respondent gave evidence. Evidence of an alibi, if rejected by a 'fact finder' (Judge or assessors) strengthens the case of the opponent. In this case the Respondent stated that in his mind the visit was innocent of a dishonest intent or purpose. He claimed, directly or by inference:

(a)	the gifts were a sign of respect for Fao and due to past relationship; and

(b)	they were a belated Christmas present.

23.	Masoe Serota who promoted the Respondent in his campaign and called as a witness said that on 4 January there was a campaign trip around Savaii for the Tautua Party which commenced at about 9 a.m. Initially he claimed to have traveled in company with the Respondent but in re-examination altered his version of events to state that the group had traveled in two vehicles. He denied that he had gone to Fao's house or waited outside. If either version is correct it weakens the evidence of the Respondent. In either case his claim of a casual, personal and spontaneous gesture of friendship is belied by the fact that on that day he was engaged in election business.

24.	We reject the Respondent's evidence of 'gift' for the reasons:

(1)	there had been one, if any previous visits by the Respondent to Fao's house;

(2)	the Respondent appeared uninvited to Fao's house when the election was imminent;

(3)	the Respondent was at the time on the campaign trail and electioneering for the Tautua Party;

(4)	it is clear from the words spoken by the Respondent at the material time "ou te faia le mea sili mo oe pea ou tula'i mai ile palota" (I will do the best for you if I am elected), the nature of the alleged gift, and the imminence of the election that the so-called gift was in relation to the election in order to induce Fao to support the Respondent's candidacy; and

(5)	the Respondent was aware that at the time of his visit Fao was the paramount orator for the village of Asau which had proposed the Petitioner as its preferred candidate and that Fao is very influential within the village.

25.	The Respondent claimed that his words were intended to mean that if elected he would pursue his attempts to have the law amended so as to permit the Constituency to elect two rather than one member of the Legislative Assembly. In doing so he claimed a state of mind undisclosed to others including Fao. The Court is entitled to interpret his state of mind by what he did and said rather than an undisclosed mental solution (Vui v Ah Chong, supra).

26.	The Court is satisfied beyond reasonable doubt that the Respondent committed an act of bribery and treating on 4 January 2011 and does not accept that there is a reasonable hypothesis consistent with innocence which would require the Court to return a finding in favour of the Respondent.

Ground 2

27.	On 14 January, the Respondent returned to Fao's home at around 2 p.m. Fao said that the Respondent had telephoned him earlier asking Fao to wait for him since he had almost reached the house. Fao's version was that the two had talked inside the home and that the Respondent said;

"…he wants me to be the spokesperson for the Tautua Party when Party members travel around Savaii."
and 

"…gave me money in the amount of $500.00 tala in the presence of my wife."

28.	Tautalagia Fao, his wife, corroborated his version of events.

29.	The Respondent confirmed the gift of money but in his affidavit explained:

"That the $500 payment for his services referred in paragraph 4 of Fao Ualesi and Tautalagia Fao's affidavits when I approached Fao Ualesi to be our spokesperson for the Tautua party for our national road campaign in Savaii and Upolu given the death of my tulafale Malolo Olomana. I chose Fao Ualesi as I was very aware of his eloquence and expert knowledge in Samoan oratory given our long relationship. This was also again my acknowledgment, recognition and respect afforded to Fao Ualesi that he do me the honour of being our spokesperson being the top orator in the district."

30.	The three witnesses Fao, his wife Tautalagia, and the Respondent were extensively cross-examined on their respective versions of the meeting. There was little difference between the primary events although Fao said that he made no reply to the offer whilst the Respondent claimed that Fao said he would think it over.

31.	The Court accepts that:

(1)	the Respondent had gone to the home of Fao uninvited;

(2)	it was the second visit made within 10 days;

(3)	the Respondent claimed that the gifts made on 4 January were ones given through respect for Fao or personal friendship as distinct from that given on 14 January which was said to be a payment for a future political alliance;

(4)	on either version Fao did not accept the proposal;

(5)	the subject matter raised by the Respondent was of a political nature;

(6)	the Respondent made no further contact with Fao to find out the outcome of the meeting; and

(7)	the imminence of the election.

32.	On those findings the Court was required to draw primary inferences or conclusions. In doing so we take into account, the date of the election, the evidence of other witnesses whose evidence is common to the three allegations, motive, internal inconsistencies within the evidence and the like.

33.	Bribery is not to be construed as extending to money paid or agreed to be paid for or on any expenses incurred in good faith at or concerning any election provided those expenses are not illegal on some other ground (Coventry Case [1869] 1 O'M. & H. 97). The controlling principle is one of good faith.

34.	The Respondent claimed that the money was but an advanced payment for services to be performed, in future, by Fao if and when he agreed or acted as an orator speaking in support of the Tautua Party during the election. He conceded that such an outcome was unlikely. Fao had reason to support the election of a candidate from Asau. He was not close to the Respondent and had little reason to support an opponent. The claim that the 4 January visit was gift and respect and the later visit that of payment for services yet to be provided and the two but coincidental is difficult to believe.

35.	The amount given 'as a deposit' was excessive (Parker 20.5, supra) and akin to sham employment (Salisbury (1883) 4 O'M. & H. 21; Parker 20.9). On his own version he had given a significant amount of money before the other had agreed to the proposal. That he had the money, ready for payment itself, colours his claim that he went there for discussion.

36.	The Court does not accept the veracity of his account. That taken together with our finding on Ground 1, together with other evidence such as his performance of ifoga and corroboration by Fao's wife lead us to the conclusion that he had a corrupt intent at the relevant time.

Evidence of Accomplice

37.	Counsel contended that the evidence of an accomplice cannot provide independent corroborating evidence of another accomplice. It was said that if Fao was an accomplice to the dishonest reception of money and his wife complicit in his conduct, her evidence could not be used as corroboration of his testimony against the Respondent. However, we find no evidence that Fao's wife was an accomplice. The same was said of the evidence of Tineleti Mamapo and Kalala Sopo Tanielu, witnesses in the third and fourth allegations concerning the gift to the women's committee.

38.	We do not agree. In respect of an allegation of election corrupt practice such as bribery, the Court is not bound by the strict practice applicable to criminal cases but may act on the uncorroborated testimony of an accomplice (M'Clory v Wright (1860) 10 ICLR 514 cited in 4 Halsbury's Laws of England, paragraph 780 fn5).

Conclusion

39.	The Court finds that the evidence of Fao was corroborated by his wife and the Respondent himself. It is safe to convict on his evidence even if he Fao is to be regarded as an accomplice.

40.	Ground 2 is made out to the requisite degree. The Court is able to draw inferences from the evidence adduced in Allegation 1, the surrounding circumstances and his later performance of ifoga to the above and conclude to the requisite degree that he is guilty of bribery in the term alleged in Ground 2.

Evidence of Ifoga

41.	Masoe and his wife Foilagi were banished from Asau on 17 March 2011. The circumstances of that action will be separately considered. The Petition was filed on 22 March 2011. In the course of cross-examination the Petitioner told the Court that on Sunday 27 March, the Respondent and members of his family went to Fao's fale at about 5:30 a.m. Fao was awakened by his wife and met the Respondent who was wearing a traditional fine mat. Fao told the Court that the Respondent apologised for the gifts which he had given Fao and for any harm or offence for conduct or statements which he or members of his family had given which might have led to the banishment.

42.	The Respondent agreed that he had performed a ifoga but denied that the ifoga was connected with any gifts or payments made on January 4 and 14.

43.	The custom of ifoga covers many forms of conduct. Its role in the criminal law as stated in Attorney-General v Matalavea [2007] WSCA 8 differs for its place in other forms of human conduct and reconciliation. In this case the import of the ifoga is that of an implicit admission of wrongdoing in the Respondent giving the money and whisky and seeking forgiveness. The Respondent claims that the ifoga was a consequence of banishment and was personal to Fao. The Court does not accept his version. It accepts that the ifoga was an apology connected with the election gifts and the possibility of allegations of bribery and their possible consequences. We accept the evidence of Fao that the words were spoken. The inference drawn by the Court is that the apology and attempted reconciliation related to the events of 4 and 14 January.

44.	Reasons for our conclusion include:

(1)	the ifoga was carried out on a Sunday;

(2)	it was made to Fao at Fao's fale rather than to the village council of Asau that had banished the Respondent's brother-in-law and his wife;

(3)	it was made on 27 March after the presentation of the Petition on 22 March; and

(4)	even though Fao's evidence had not been stated in his affidavit or relied upon in evidence-in-chief or early in cross-examination, he gave it after prolonged cross-examination on other relatively inconsequential matters.

45.	Acceptance of Fao's testimony colours or impacts on any interpretation of the Respondent's explanations for his January conduct. It weakens his claim that the first gift was an act of kindness and respect and the second gift was payment for future services. That in turn affects his claimed explanations for his claim of repaying a loan from his sister Foilagi relevant to Ground 3 of the Petition.

Ground 3

46.	The Petitioner alleges that on 4 January at approximately 12:30 p.m. the Respondent and his sister Foilagi Masoe drove to a meeting of the Asau women's committee. Foilagi was the President of the Asau Women's South Pacific Business Development (SPBD). There he gave her $500 tala which she took into the meeting and gave it to the Secretary who in turn distributed $400 tala to attending members leaving $100 tala for the purchase of drinks and twisties as a refreshment. The joint conduct is said to be corrupt.

47.	The Respondent and his sister say that he had previously borrowed $1,000 because there was not enough money available at his business.

48.	There is a coincidence of his visit to Fao, his repayment of a loan of $500 at the time of his presence outside the meeting of the Asau Women's SPBD and independent evidence that on the same day he was on the campaign trail.

49.	The Court accepts the virtually undisputed evidence:

(1)	he was outside the meeting place at the relevant time;

(2)	he handed Foilagi the sum of $500 tala in cash and she went inside the meeting;

(3)	Foilagi was the President of the women's committee;

(4)	money was distributed to those attending the meeting one of whom, Tineleti, was shown to be an elector of the Vaisigano No. 1 constituency;

(5)	notice had been given of the date of the election; and

(6)	the amount given was not insignificant.

50.	Bribery is often given in the guise of charity. No witness corroborated the evidence of Foilagi Masoe. There was evidence of others who received the money and attested to the words used when the money was handed over.

51.	The Court does not need to consider whether a sister is presumed to be an agent of the candidate: Halsbury, 4th Ed., Vol. 15, paragraph 703 deals with the question of family and agency in the following terms:

"If a candidate's wife interferes in an election she is ipso facto his agent5. Personal intimacy with a candidate is evidence of agency. The mere fact, however, that the alleged agent is a brother of the candidate7 or the partner8 or son9 of an authorised agent is not sufficient to establish agency. A confidential employee, even though active in the election, is not necessarily an agent10.

(n5 Hasting Case (1869); n6 Sligo Borough (No.2) Case (1848) 1 Pow R & D 208; n7 Ipswich Case (1857) Wolf & D. 173; n8 Mallow Borough Case (1870) 2 O'M. & H. 18; n9 Westminster Borough Case (1869) 1 O'M. & H. 89; n10 Cockermouth Case (1853) 2 Pow R. & D. 167)."

52.	Here both were complicit as parties. The Respondent was physically present outside his sister's house; he gave her money and waited until she had returned. He was an instigator and aider. In such a case any question of agency does not arise.

53.	Even though there is a presumption that a close family member is an agent for a candidate, the mere fact that an alleged agent is a brother of the candidate is not sufficient to establish agency (Ipswich Case (1857) Wolf & D. 173 at 178). It is not necessary to determine in this case whether the Respondent was guilty through agency. He was a party to the transaction alleged, and guilty of the offence of bribery.

Ground 4

54.	Kalala Sopo Tanielu, contrary to her affidavit, told the Court that she was not an elector of the Constituency and Ground 4 was withdrawn and will be dismissed.

Cross Allegations or Recrimination

55.	The Respondent made cross-allegations. The first was that of 'undue influence' and the remainder, those of treating and/or illegal practices. A third issue raised was that of banishment, an action occurring after the election and which will be mentioned in the Court's report to the Speaker.

56.	The acts of treating are all said to have occurred on Election Day and that of undue influence a product of the meeting held by the village council before the election. The respective acts are said to be ones of agency by the village council and the influence or a product of decisions made prior to the Election Day and events on the day itself.

Agency

57.	The primary principle is that a candidate remains responsible for the conduct of his or her agent.

58.	The principle of strict liability of acts of an agent even if unauthorised or forbidden by the candidate was established by the Corrupt and Illegal Practices Prevention Act 1883 in the United Kingdom. That Act set limits on a candidate's expenses and ensured that no money could be spent on the election campaign except by the election agent. As Gibson J. observed in East Cork [1911] 6 O'M. & H. 318 at 346:

"the election agent is made the sole legitimate paymaster."

since the Act ensured that the payment of expenses was not left to

"uncertain bodies of people…whose acts no one would be responsible for or know anything at all about."

and that the election agent should be the person

"who can be looked to afterwards for an explanation of his conduct in the election" (Barrow-in-Furness [1886] 4 O'M. & H. 76 Field J. at 82.3).

59.	It was for this reason that a candidate's election could be invalidated if the agent has not correctly performed his or her duties.

60.	The term 'agent' has since been extended in New Zealand and Samoa so as to embrace more than one person but the principle of strict liability has remained. The model of election agent and strict liability has not been adopted in Australia. The courts recognised that the definition of agency for election cases differs from that applicable to criminal liability. As Baron Martin stated in the Norwich Case (1869) 1 O'M. & H. 8 at 10: 

"The law of agency which would vitiate an election is utterly different from that which would subject 'a candidate to a penalty or an indictment and the question of his right to sit in Parliament has to be settled upon an entirely different principle."

61.	That principle was adopted by the New Zealand Court of Appeal in the Bay of Islands Election Petition [1915] 34 NZLR 578. This Court has applied the principle in Olaf & Others v Chan Chui [2001] WSSC 18 and Petaia v Pa'u [2007] WSSC 15 January 2007. In the former case Vaai J. said,

"A candidate, however innocent, would be liable and responsible for any illegal acts done by or under the authority of his agent in the sense that the election will be avoided. It makes no difference whether the candidate did not authorize, did not know, or had consented to the doing of the illegal act. In fact even if the agent acted illegally in defiance of express instructions to the contrary from the candidate, the election of the candidate will be avoided…This approach is consistent with the spirit of the legislation that elections should be conducted by honest and proper means and untainted by under hand influences."

62.	In the latter case, the Election Court stated:

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

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

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

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

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

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

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

64.	Conduct of a volunteer or a person purporting to act as an agent whose existence is unknown to the candidate would not constitute agency (Bolton (1874) 2 O'M. & H. 138; see generally: Parker, supra, 6.2ff, 19.47 – 19.65).

65.	In 1983, the English Parliament relieved a candidate from the need to appoint and register an agent in parish or council elections, by its enactment of the Representation of the People Act, section 7. It retained the requirement for an agent in national elections. In the same enactment it provided through sections 158, 159 that a candidate found guilty of a corrupt or illegal practice should not be reported or subject to sanction if the Election Court reports in an agency case that it is satisfied

"(a)	that no corrupt or illegal practice was committed by the candidate or his election agent and that the offences mentioned in the report were committed contrary to the orders and without the sanction or connivance of the candidate or his election agents; and

(b)	that the candidate and his election agent took all reasonable means for preventing the commission of corrupt and illegal practices at the election; and

(c)	that the offences mentioned in the report were of a trivial, unimportant and limited character; and

(d)	that in all other respects the election was free from any corrupt or illegal practice on the part of the candidate and of his agents."

or when no election agent has been appointed.

"(a)	that no corrupt or illegal practice was committed at the election by the candidate or with his knowledge or consent and the offences mentioned in the report were committed without the sanction or connivance of the candidate; and

(b)	that all reasonable means for preventing the commission of corrupt and illegal practices at the election were taken by or on behalf of the candidate."

66.	The Samoan legislature appears to have addressed the same issue in the provisions of the Act, section 119 which requires the Court to report any findings of corrupt or illegal practice to the Speaker and relevant to the question provides:

"If a candidate is reported to have been guilty by his agents of treating, undue influence, or any illegal practice, and the Court further reports:

(a)	That no corrupt or illegal practice was committed at the election by the candidate with his or her knowledge or consent, and that the offences mentioned in the report were committed without the sanction or connivance of the candidate; and

(b)	That all reasonable means for preventing the commission of corrupt and illegal practices at the election were taken by and on behalf of the candidate; and

(c)	That the offences mentioned in the report were of a trivial, unimportant, and limited character; and

(d)	That in all other respects the election was free from any corrupt or illegal practice on the part of the candidate and of his or her agents,

the candidate shall not be treated for the purposes of this Act as having been proved guilty of the offences mentioned in the report."

67.	It is not necessary to consider the full extent of section 119 (4) but it does not permit the Court to decline to disqualify a successful candidate or refuse to void his election if the defences stated by section 119 (4) are made out. The operation of section 119 (4) was not argued or considered in the Samoan case referred to above.

68.	In our opinion the law relevant to acts by an election agent can be summarised as:

(1)	The principles of strict liability through an agent do not apply in criminal cases or prosecutions brought in accordance with the Act Part IX. In those cases the ordinary principles of criminal conduct through agency apply;

(2)	The principles of strict liability through an agent apply to the Act Part X. Their application is an ingredient to any finding required by sections 112, 113 and 114;

(3)	The Court is required to report to the Speaker as to corrupt or illegal practices in accordance with section 119;

(4)	If the Court is satisfied that the corrupt or illegal practice was committed with the knowledge and consent of a candidate he shall be reported accordingly;

(5)	If the Court finds each of the preconditions required by section 119 (4), namely, that an otherwise innocent candidate:

(a)	who had not sanctioned or connived the conduct;
(b)	and taken all reasonable means to prevent its occurrence;
(c)	which was of a minor nature; and
(d)	reports its finding to the Speaker, the candidate is not to be treated as having proven not guilty.

(6)	In the event of (5) the candidate would not be disqualified as a future candidate by reason of the Act Part II or his name entered onto the corrupt practices list as required by the Act, section 32 A.

69.	Here, for reasons already stated, it is not necessary to consider whether the Respondent's sister was his agent since the Court is satisfied that he aided her in the conduct, and committed the offence in his own right. Future candidates ought understand that evidence of friendship or close acquaintanceship is important evidence to establish agency. The mere fact that the alleged agent is brother or sister to the candidate is not sufficient to establish agency (Ipswich, supra) but gives rise to a cogent evidentiary presumption (East Dorset 6 O'M. & H. 22). The question of any agency on the part of the Respondent's election campaign committee will be separately considered.

The Village, Custom and Political Parties

70.	Those who gave their nation their wisdom and experience in designing a Constitution have served their nation well. They successfully attempted to reconcile the pillars of village, custom, religion consistent with universal suffrage and self government. It has been possible to accommodate history and tradition with an elected form of self government. The Constitution has been flexible enough to meet legislative change such as extension of franchise, court supervision and varying requirements for eligibility and administrative efficiency.

71.	The Act originally made no reference to political parties. Part II A was added in 2002 to provide for and regulate the registration of political parties and their conduct in the electoral process as further amended by the Electoral Amendment Act 2009 No. 21. Section 15A provides for the registration of parties and section 15F for the election of endorsed candidates. Section 32A established a 'Corrupt Practice List' which together with section 16B provides a basis for disqualification. Section 56A enables the Electoral Commissioner to require confirmation of eligibility and rejection of an unregistered party. Relevant here are the amendments made through the enactment of sections 70A and C.

72.	Concurrently further amendments were made through sections 97 A and B to accommodate the customs of o'o, momoli and tautua fa'aauau.

73.	In 2010–11, the council decided to nominate and promote its own candidate against one who had contested elections for many years. In doing so it reflected history and custom. Future developments in 'party politics' may change the balance of custom. The council nominated and promoted its candidate and assigned some of its members to aid the promotion by the village in its objects.

74.	The Respondent in his recriminatory case (as if he had presented a Petition; see Parker, supra) alleged that the council had committed acts of undue influence and treating, as agent of the Petitioner. The latter was said to have been the provision of food and drinks on Election Day.

75.	The Act permits the village to nominate and promote its preferred candidate. Here its nomination was for a person who was both a villager and a member of a political party, a choice made by councils in many electorates, itself a decision permitted by the legislation. 

76.	Asau has traditionally provided food and drinks for election officials, scrutineers, transport, elderly voters and the like. The Petitioner had opposed that provision at more than one meeting held before the election.

77.	The Court accepts that the provision of food and drinks for election officials and scrutineers (see: the Act, section 64 (4)) is not unlawful provided that it is part of traditional Samoan courtesy and not for the purpose of influencing scrutineers who might also be electors (Barrow-in-Furness (supra); Cheltenham (1911) 6 O'M. & H. 194). The Court has accepted that the provision of transport by a council or candidate is lawful (Esau v Neri [2001] WSSC 12).

78.	It accepts that a village might provide food and refreshments to electors after the closing of the poll provided it was not made for a corrupt purpose (The Act, section 97(2)(c); Cheltenham (supra); Parker 20.11).

79.	In the circumstances of this case the Court is not satisfied that any provision of food or refreshments was made on behalf of the Petitioner. It is likely that food was provided to elderly matais before the closing of the poll but was not done as an agent of the Petitioner. There is no evidence that any provision distinguished between supporters of the Petitioner and those of the other candidates.

80.	The allegations of treating are dismissed.

Undue Influence

81.	The evidence at trial was that the practice in Asau included that of requiring voters to first go to a separate fale and receive a slip of paper containing their voter registration number, which would be presented to a polling officer. It was said that the process would assist the officer to more readily identify the voter (The Act, Part IV), thus making the process more efficient. The Court does not understand the practice of requiring the elector to return the slip. The practice is said to be of long standing. It may be a relic of the need to prevent personation (The Act, sections 95 and 99).

82.	Here the vice is said to be that the requirement that electors would be subject to the sanction of banishment if the residents of Asau did not vote within the village thus allowing a form of psychological pressure or control on electors.

83.	The Court accepts that elections can be voided through psychological pressure. The question was considered by the English Court of Appeal in R v Rowe [1992] 1 WLR 1059, a case involving the distribution of false advertising material by activists of a rival party. In the course of the judgment Farquharson L.J. said at 1064.5:

"…an improper influence which is brought to bear on the mind of the voter and causes him to vote as the person exercising that improper influence intended (when otherwise he would not), 'prevents' the free exercise of his franchise."

84.	Nolan L.J. agreed with the test propounded but added at 1068 – 9:

"I have no difficulty in visualising the concept of an elector being either impeded or prevented from casting his vote freely because his access to the polling booth has been obstructed by physical force or threats of the kind connoted by abduction and duress. He will be impeded – as distinct from being prevented – if – perish the thought at the present time – he is abducted on polling day, but manages to escape and to reach the polling station before it closes. He will be impeded – as distinct from being prevented – by duress if he is a known supporter of one political party, and members of the opposing political party try unsuccessfully to dissuade him by threats from entering the polling station. Such an elector, if sufficiently stout-hearted, will not be prevented from exercising his vote freely, but will have to overcome the impediment of fear to do so.

Purely psychological intimidation which continues to operate on the mind of the elector in the privacy of the polling booth itself must, I think, in principle come into the same category. So must deception. But their impeding – as distinct from preventing – influence may be very much harder to identify and prove."

and

"The crucial feature of the present case is the finding of the commissioner, that not one of the 16 electors called as witnesses by the petitioners was influenced by the pamphlet at the time when he cast his vote. I hope that this finding may be taken to reflect the alertness of the modern electorate to the dangers of accepting at face value the contents of every pamphlet which is distributed during an election campaign. Be that as it may, the petitioners in the present case have failed to prove by direct evidence that the fraudulent pamphlet impeded or prevented any free exercise of the franchise."

85.	Here the Respondent has not established a connection between any decision by the council of requiring intending electors to either vote within the village and/or return their slip of paper and the prohibitions of the Act, section 98.

86.	Our reasons are:

(1)	We do not accept that the council by resolution or consensus required villagers to vote only within their village. We accept that there was an expectation following the words of Logoitea Fogava'a made at a meeting but not a collective decision.

(2)	We accept that the Petitioner spoke against the risks of treating.

(3)	We do not accept, in the circumstances of this case, that the Respondent has established, to the requisite degree that the village council was an agent of the Petitioner in the acts of treating.

(4)	There is no evidence that the practice of prior 'checking of the rolls' amounted to an act of undue influence or that any elector acted as a consequence of that practice.

(5)	There is no evidence that any elector was induced or compelled to vote for the candidate preferred by the village.

(6)	The Court is not satisfied to the requisite degree that food before the closing of the poll was an act of any member of the Petitioner's election committee even if such committee was an agent of the Petitioner.

(7)	The speech of Logoitea made at the February meeting was heard by untitled men and may have influenced them in their voting. But absent a binding decision the speech was no more than an exhortation. Logoitea was not, for the purpose of the Act, an agent of the Petitioner.

87.	The issue of banishment or retribution following the election will be dealt with in the Court's report to the Speaker.

88.	Each of the cross-allegations of treating or undue influence against the Petitioner is dismissed.

Disposition

89.	The Court notes that the Petitioner seeks an order 'that the Respondent was not duly elected and that the election was void' in accordance with the Act, section 112. He does not seek recourse to a scrutiny under section 114. There is no 'claiming the seat for some person' as provided for in the Act, sections 111 (6) and 118. It is not necessary for the Court to determine whether the Court has jurisdiction to grant leave to permit the Petitioner to amend the Petition to add an additional prayer for relief (see: Maude v Lowley [1874] LRCP Vol. 9 165; Furness v Beresford [1898] 1 Q.B. 495; Ahmed v Kennedy [2003] 1 WLR 1820).

90.	As earlier stated there were three candidates for the election with the Petitioner obtaining 42% of the valid votes cast. The effect of our findings is provided for by the Act, section 46.

91.	It is for these reasons that on 29 April 2011 the Court made the following orders:

ORDERS

(1)	The Petition is upheld; and

(2)	The Respondent is guilty of the corrupt practices of Bribery and Treating.

(3)	The election for the Constituency of Vaisigano No. 1 is avoided.

(4)	The counter or cross-allegations against the Petitioner are dismissed.

(5)	The parties are to file and serve submissions as to costs within seven (7) days.

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Honourable Chief Justice Sapolu

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Honourable Justice Slicer