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Lameko v Onesemo [2026] WSSC 10 (24 March 2026)

IN THE ELECTORAL COURT OF SAMOA
Lameko v Onesemo [2026] WSSC 10 (24 March 2026)


Case name:
Lameko v Onesemo


Citation:


Decision date:
24 March 2026


Parties:
TUILOMA TUSA LANISELOTA LAMEKO (Petitioner) v TOELUPE POUMULINUKU ONESEMO (Respondent)


Hearing date(s):



File number(s):
2025-01229 & 2025-01245 SC/CV/UP


Jurisdiction:
Supreme Court – CIVIL (ELECTORAL)


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Leiataualesa Daryl Clarke


On appeal from:


Order:
For the reasons stated, the Court finds allegation 5(d) against the Respondent proven beyond a reasonable doubt. The Court makes the following determination:

(i) The Court is satisfied to the required standard of proof of the Respondent and Mr Petelo’s agency are properly inferred from Mr Petelo’s actions of (1) inviting Mr Nofovaega and offering to transport Mr Nofovaega to attend a sign up meeting to support the Respondent on the Sunday before the 2025 General Election an agent of the Respondent, and (2) when he visited Mr Nofovaega at his residence at 11pm on the eve of the 2025 General Election and gave $150 to Mr Nofovaega with the express intention of influencing Mr Nofovaega to vote for the Respondent; and (3) the reasons more broadly set out in this judgment.
(ii) The Respondent is liable for Mr Petelo’s actions therefore the Respondent is found guilty beyond reasonable doubt of the corrupt practice carried out by Mr Petelo as described above, conducted in breach of s. 94 of the EA;
(iii) The Court accordingly declares the election of the Respondent void pursuant to section 116 of the Electoral Act 2019;
(iv) The Respondent did not prosecute his CP against the Petitioner, and it is accordingly struck out;
(v) In the unique circumstances of this case, costs lie where they fall; and
(vi) Security for costs paid by both parties is forfeited to the Court as Court costs.
The Court will report its findings on these and other matters it considers relevant to the Honourable Speaker accordingly.


Representation:
A. Su’a and R. Schuster for the Petitioner
M. Lui for the Respondent
D.J. Fong and V. Leilua as Amicus Curiae


Catchwords:
Electoral petition – counter petition – bribery – corrupt practice – agency – agent – general election.


Words and phrases:
“non-appearance of witnesses” – “joint application to withdraw dismissed”


Legislation cited:
Constitution of the Independent State of Samoa 1961
Electoral Act 2019, ss. 96; 115(4); 116; 118; 126(3).


Cases cited:
Afzal v Khan [2023] EWHC 376;
Anderson v R [2020] 3 NZLR 429;
Angus v R [2017] NZCA 454;
Lameko v Onesemo [2025] WSSC 115;
Miller v R [2024] NZHC 3753;
Petaia v Pa’u [2006] WSSC 1;
Police v Brown (Unreported) Supreme Court of Samoa, 04/09/2020;
R v L [1994] 2 NZLR 54;
Simmons v Khan [2008] EWHC B4 (QB).


Summary of decision:

THE ELECTORAL COURT OF SAMOA
HELD AT MULINUU


in the matter: of Election Petitions as per Part 14 of the Electoral Act 2019


BETWEEN:


TUILOMA TUSA LANISELOTA LAMEKO


Petitioner


AND:


TOELUPE POUMULINUKU ONESEMO


Respondent


Counsel: A. Su’a and R. Schuster for the Petitioner
M. Lui for the Respondent
D.J. Fong and V. Leilua as Amicus Curiae
Closing 20 February 2026
Submissions:
Judgment: 24 March 2026


RESERVED JUDGMENT OF THE COURT

INTRODUCTION

  1. This is an Electoral Petition (“EP”) and Counter Petition (“CP”) case concerning the result of the 2025 General Election of the Falealili 1 Constituency (“Constituency”).[1] The parties involved are Tuiloma Lameko, the Petitioner (“Petitioner”), and Toelupe Onesemo the elected Member of Parliament for Falealili 1 as the Respondent (“Respondent”).[2]
  2. As developed below, the issue in this case concerns the Petitioner’s claim that the Respondent is guilty of the corrupt practice of bribery because his agent gave a voter of the Constituency $150 to induce that voter to vote for the Respondent.
  3. The election of a candidate proven at the trial of an EP to have been guilty of a corrupt practice is void.[3] A single act of bribery, no matter how large or small is enough to void an election. The rationale for this strict approach is distilled from the principles of the Electoral Act 2019 (“the EA”), that elections must be free and fair and even small bribes will erode trust in democratic institutions. Therefore, over the years, and as it will do for years to come, the Court has consistently applied the bright-line rule to preserve the virtue of democratic elections as the method by which Samoa chooses its political leaders.
  4. The Court considers it especially important in the context of a contest between political candidates, that there continues to be respect for the fundamental principle that all persons are equal before the law and no one is above the law. This means that regardless of status or office, all persons are subject to the checks and balances expressed in the Constitution of the Independent State of Samoa 1961 (“the Constitution”); the provisions of the EA and related relevant legislation such as the Evidence Act 2016; Samoa custom; the principles of the common law, and the Supreme Court’s inherent jurisdiction.
  5. It is further noteworthy that the claim of the corrupt practice in this EP was put into issue by (1) the only witness who appeared to give evidence, and (2) in the affidavits of two other Petitioner witnesses on the same subject. The Court has decided this case on the strength of their evidence, which must satisfy the Court beyond reasonable doubt of the Respondent’s guilt.[4]
  6. This determination is in five parts. The first discusses the pleadings and the issues the Court must determine; the second part discusses the evidence; the third is concerned with the principles of law; the fourth concerns the Court’s application of legal principles to the facts; and the fifth sets out the Court’s decision.

PART 1
THE PLEADINGS AND EVIDENCE

The Petitioner’s pleadings

  1. The Petitioner filed his EP on 19 September 2025 with supporting affidavits and statutory declarations that the Petitioner had not engaged in a corrupt practice. The EP makes these corrupt practices claims:
  2. The Petitioner filed 11 affidavits setting the evidence supporting his claims.
  3. Due to the non-appearance of witnesses, which the Court referred to briefly above and will discuss below, the only allegation of a corrupt practice that remains against the Respondent is allegation 5(d) of the EP which relevantly provides:

The Respondent’s pleadings

  1. The Respondent filed a reply to the EP and a counter petition (“CP”) on 30 September 2025. These pleadings provided that he:
  2. The Respondent filed 42 affidavits in support, setting out the evidence of his claims.
  3. The Respondent did not in the end apply to strike out the EP. Therefore, the Respondent’s remaining pleading to the Petitioner’s EP is his denial of all allegations of bribery and puts the Petitioner to the proof – [10](b) above.

Other pleadings and affidavits

  1. There are a further 8 affidavits, 4 from the Petitioner (dated 25 September 2025) and 4 replies from the Respondent (dated 17 and 21 October 2025) concerning allegations of witness interference. We discuss this further below.
  2. For this chronology of the pleadings and evidence the Court next turns to the settlement reached by the parties.

Settlement between the parties and their joint application for leave to withdraw

  1. The parties concluded an agreement to settle their dispute on a no admission of liability basis; its terms set out in a Deed of Settlement, dated 27 October 2025. What drove the settlement is represented to be set out in paragraph 7:
  2. Following the settlement, the parties joined forces and made a joint application to the Court for leave to withdraw the EP and CP, as is required under the EA.[5] The joint application was supported by affidavits from the Petitioner and Respondent. In these affidavits they certified their respective withdrawals were not the result of a corrupt arrangement or in consideration of the withdrawal of any other electoral petition. The parties acknowledged the seriousness of their certification meant that a breach of their certification may be treated as a contempt of Court punishable by a penalty that may include a period of imprisonment.
  3. The form and basis for the joint application for withdrawal were unremarkable. However, a claim later emerged that the settlement involved an alleged bribe of $100,000. The sum was paid by and on behalf of the Respondent (who was by this time the Deputy Prime Minister of Samoa) to the Petitioner on or about 22 October 2025. The claim of a $100,000 bribe is made in an affidavit that was filed by Namulauulu Papalii Leota Sami Leota, dated 11 November 2025.[6]
  4. The Court dismissed the joint application for leave to withdraw on 3rd December 2025 for the reasons stated in our written ruling issued on 11th December 2025.[7] Following the dismissal of the joint application for leave to withdraw, the Court directed the parties to proceed with the EP and the CP, and set a hearing date of 8 December 2025.

The commencement of the EP and CP hearing

  1. The following section of this decision discusses the events following the dismissal and how that shaped the evidence that the Court was to finally consider. The Court notes that although it directed the parties to proceed with the EP and the CP, neither party was particularly enthusiastic.
  2. Ms Lui, at the application for leave to withdraw hearing submitted, as one of the grounds supporting the withdrawal of the proceedings, that many of the Respondent’s witnesses were unwilling to give evidence. This was because of the position taken by the Alii and Faipule of the various villages of the Constituency, that the proceeding should be settled. Mr Su’a had earlier expressed his concern that some of his witnesses had been the subject of intimidation and threats to not give evidence. Some of Mr Su’a’s witnesses indicated to him they were not going to give evidence. This led Mr Su’a to make an application for leave to withdraw the claims that were affected.[8]
  3. The Court attempted to address the issue of witness availability, on both sides, by issuing subpoenas to all witnesses, to be served by the Police.
  4. At the start of the EP and CP hearing on 8th December 2025, a total of 50 witnesses had been served and had signed proof of service of the subpoenas - 15 of the Petitioner’s affidavit witnesses and 35 of the Respondent’s affidavit witnesses. However, unexpectedly, 49 of the 50 witnesses failed to turn up to Court.
  5. The failure of witnesses to attend and give evidence has the same practical effect as parties not offering any evidence; it ordinarily means a party is unable to prosecute its claim, which may result in dismissal for want of prosecution.
  6. Only one witness turned up – Leapagatele Alema, and his evidence is discussed below.
  7. It is critical to note the novelty of the situation before the Court, where almost all but one witness turned up to Court to give evidence. There is no evidence before the Court as to the cause or causes behind the witnesses not appearing. Given that a contempt of the Court’s orders may result in a period of imprisonment, the Court reserves its judgment on this issue pending further consideration by the Attorney General’s Office, as referred to an Ancillary Matters remarks, to follow.
  8. Respectfully, any thought that the witness’ failure to turn up to give evidence would put an end the Electoral Petition is plainly wrong in the Electoral Act context. Hearings of an EP and CP are generally conducted within the rules and processes used in the adversarial system. However, the statutory framework set out in the EA places the Electoral Court in an inquisitorial role, as well.
  9. The inquisitorial jurisdiction means, subject to fair trial rights of natural justice and fairness, the Court may decide what statements it may take into evidence to deal effectively with a case even if that statement is not normally admissible in the Supreme Court; the Electoral Court may call any witnesses to give evidence even if those witnesses are not called by the Petitioner or Respondent; and the Electoral Court is required to be guided by the substantial merits and justice of the case. In other words, the Court’s jurisdiction in EA matters is not limited to the matters parties may choose to argue or present in evidence as is generally the case in an adversarial hearing.
  10. The principle in electoral law is that an Electoral Petition “is not a purely private law action but rather an inquiry into the conduct of an election in the public interest”.[9] In this case, after hearing from Mr Alema who gave evidence that a party to a bribe, Mr Nofovaega, had confessed to him the receipt of a bribe, there was dispute before the Court that needed to be determined. This means that in response to situations such as the wholesale failure of witnesses to answer subpoenas arises, the Court has the duty to consider its inquisitorial powers under ss 115(4), 118 and 126 of the EA, to resolve the issue.

Evidence before the Court

  1. The evidence before the Court is as follows:

PART 2
BACKGROUND

Mr Nofovaega

  1. On Sunday 24 August 2025, the Sunday before the General Election held on 29 August 2025, Mr Nofovaega said that he went to preach at the village of Siuniu, Falealili. He says Mr Petelo told him he would come with his wife to pick him up so that they could go to a meeting to finalise a list of people from the Tafatafa village who would vote for the Respondent. Mr Nofovaega deflected the invitation by saying that it would depend on his availability, and he says he did not go to the meeting. He says:
  2. At around 11pm, on Thursday 28 August 2025, the day before the 2025 General Election, Mr Nofovaega and his wife Mrs Seu were at home in their village of Tafatafa, Falealili. Mrs Seu was settling in to rest for the night in her mosquito net; Mr Nofovaega was reading his Bible by a lamp on a table he used for reading. All the lights of the house had been turned off, except for the lamp. Mr Nofovaega says where he sat could not be seen from outside the house. A car approached their home. Mr Nofovaega heard his name being called by a male voice. After being called a second time, he went to open the door.
  3. When he opened the door he saw Mr Petelo standing there. Mr Nofovaega says:
  4. Mr Nofovaega claims Mr Petelo gave him $150.00 accompanied with the words "tautuana lau palota ". He understood this to mean he was supposed to vote to the Respondent:
  5. Mr Nofovaega claims that he knew Mr Petelo was a member of the Respondent’s komiti. He observed that the car in which Mr Petelo came to his house was owned by Mr Moli Sagaga (“Mr Sagaga”) another member of the Respondent komiti whom he knew from attending the same Mormon Church in Tafatafa.
  6. After Mr Petelo left, Mr Nofovaega says Mrs Seu asked him who had come to the house. Mr Nofovaega’s response was that Mr Petelo had come and that he came with some money for him.

Mrs Seu

  1. Mrs Seu’s recollection of this exchange differs slightly. She says she did not find out until the next morning that Mr Petelo came to the house and gave money – $150. She said Mr Nofovaega showed her the money and said to her that it was for them to “tautuana le palota”. Mrs Seu’s evidence is that at about 11pm on Thursday 28 August 2025 she was lying inside a mosquito net covering her bed and preparing to sleep. All the lights in their house had been turned off. She heard the voice of a man calling out, and she heard this person talking with her husband, but she could not hear their discussion.
  2. Mrs Seu says it was the next morning, the day of the 2025 General Election when she awoke and asked her husband about who had come around last night. Mr Nofovaega said to her it was Mr Petelo came to bring the $150 and he showed her the money that had been brought around. Ms Seu claims that she was told that the money was for their household to remind them “e tautuna le palota”.
  3. Mrs Seu, says she belongs to the village of Tafatafa, it is her “nuu moni”. She claims that Mr Petelo lives just along from them, drives a taxi, and she has often seen him and Mr Sagaga going around with other members of the Respondent’s committee.
  4. Finally, Mrs Seu says that it is not usual for Mr Petelo to give them money. She says:

Mr Alema

  1. Mr Alema claims that when Mr Nofovaega greeted him, he was told about the visit Mr Nofovaega had from Mr Petelo who gave him $150. Mr Alema says the topic of the $150 arose when Mr Nofovaega asked him whether the komiti came to him as they were distributing money the night before. Mr Alema replied, no. Mr Alema’s affidavit provides:
  2. Mr Alema then says:
  3. The exchange between Mr Alema and Mr Nofovaega occurred at about 9am on the morning of the 2025 General Election on Friday 29 August 2025. Mr Alema says he had pre-arranged with Mr Nofovaega and Mrs Seu that they would meet to go to cast their vote at the same time. Mr Alema says that he visited Mr Nofovaega and Mrs Seu because they were elderly and did not find it easy to get around.
  4. Mr Alema asserts that he belongs to village of Tafatafa where he resides with his wife.
  5. Mr Alema said he knew Mr Petelo as a matai of the village who operated a taxi.
  6. In the course of what were effectively closing submissions, Ms Lui spent some time discussing Mr Nofovaega’s supplementary affidavit, dated 25 September 2025, understanding this affidavit formed part of the petitioner’s admitted evidence. In this affidavit Mr Nofovaega claims matai from the Respondent’s komiti were trying to stop him from giving evidence. Ms Lui submitted Mr Nofovaega’s claims of threats could not have been so serious because if they were, he would have advised in his affidavit that he was withdrawing his affidavit. The Court admitted the supplementary affidavit into evidence in order for the Court to deal effectively with the case and counsel’s submissions about the degree of seriousness of the threats to Mr Nofovaega.
  7. Mr Nofovaega supplementary affidavit, dated 25 September 2025, speak to matters that arose after the alleged bribe concerning attempts to dissuade Mr Nofovaega from giving evidence. The Court finds the unchallenged evidence does not assist in the determination of the issue in this case.

PART 3
PRINCIPLES OF LAW

The issue for determination - Bribery

  1. The offence of bribery is committed by a person who directly or indirectly gives any money to a voter with the intention of influencing the vote of the voter.[14]
  2. The issue for the Court to determine is whether in this case the Respondent committed bribery, by the actions of Mr Petelo who gave money to Mr Nofovaega, a voter of the Constituency of Falealili 1, for the purpose of inducing Mr Nofovaega to vote for the Respondent.
  3. The issue can be further broken down to these questions:
  4. The first question concerns agency.

Agency

  1. The principles of agency law are summarised in Petaia v Pa’u, as follows:[15]
  2. We add to these learned observations, the commentary in the leading legal text of Halsbury's Laws of England, where the learned authors observe:
  3. In an English authority: Simmons v Khan,[16] the Court examined the question of who is an agent? The Court explained agency in an electoral context in the following way:
  4. These and other well-established principles are settled law that have guided the Electoral Court through many electoral cycles. The Court does not see any reason to take a different approach.

The Court’s powers

  1. The relevant powers are set out in the EA; firstly. s. 115(4) of the EA, which provides:
  2. Secondly, s. 118 that provides:
  3. Finally, s. 126(3) provides:

PART 4
APPLICATION OF THE PRINCIPLES TO THE FACTS

Is there an agency between Mr Petelo and the Respondent?

  1. The principles of law in agency in the context of EPs are settled - that a candidate for election will be taken to be responsible for the actions of an agent, even if the candidate did not appoint the agent, so long as the “candidate or his authorised agents have reasonable knowledge that those persons are so acting” to promote the candidate’s election.
  2. Furthermore, as the learned authors in Halsbury’s stated, “persons who do what members of the committee generally do are just as much members of the committee as if they were expressly called so for that reason”. A candidate’s agents can include “a wide range of canvassers, committees and supporters”.
  3. The Court finds that Mr Petelo was an agent of the Respondent, arising by implication. The Court considers the following evidence is relevant to this finding
  4. The Court is satisfied beyond reasonable doubt on the evidence set out at (a) – (e) that Mr Petelo was acting as an agent for the Respondent. Mr Nofovaega’s account that Mr Petelo personally invited him to a pledging meeting to sign up voters for the Respondent shows Mr Petelo’s direct involvement in canvassing and electioneering for the Respondent. Mrs Seu’s observation of Mr Petelo travelling with known members of the Respondent’s committee, including Mr Sagaga, demonstrates his close association with the Respondent’s campaign and to Mr Sagaga. On the eve of the General Election, Mr Petelo arrived at Mr Nofovaega’s house in a car owned by Mr Sagaga to pay him $150 and stating “tautuana lau palota”, further links him to the Respondent’s committee. In all the circumstances, the Court is satisfied that Mr Petelo by implication was the Respondent’s agent.

Did Mr Petelo give Mr Nofovaega money?

  1. The Court accepts that Mr Petelo gave to Mr Nofovaega $150. The relevant evidence is as follows:

Was the money given with the intention of influencing Mr Nofovaega to vote for the Respondent?

  1. The Court also accepts that Mr Petelo paid $150 to Mr Nofovaega to influence Mr Nofovaega to vote for the Respondent. The relevant evidence is as follows:
  2. The Court notes that a feature of the evidence, which distinguishes this case, relates to the hour and place of the Mr Petelo’s visit. The Court considers it implausible that there would be some harmless or bland reason for a Samoan Matai to attend on another person’s home late at night. Furthermore, the Court considers it equally implausible that Mr Petelo would go to Mr Nofovaega’s home at this late hour, on the eve of the 2025 General Election, to give him $150 from his own pocket.

The Respondent’s challenge to the statements at the hearing

  1. Turning to the submissions of the Respondent’s submissions urging the Court to give no or little weight to the affidavits. Ms Lui relied on three broad grounds:

A. Inconsistencies and lack of corroboration

  1. The Respondent challenged the statements of the witnesses as being inconsistent with each other, and this showed them to be unreliable, and should therefore be given little or no weight.
  2. The Court accepts that there are inconsistencies and differences in recollections, but, respectfully, the differences do not concern the elements of the offence of bribery – agency, payment of money, to induce a voter to vote a particular way. Both Mr Nofoveaga and Mrs Seu give the evidence that a person came to their house at 11pm on the 28th August 2025. Mr Nofovaega identified the person as Mr Petelo who he says is an agent of the Respondent. Mrs Seu claims Mr Petelo associates with members of the Respondent’s komiti. Mr Nofovaega says Mr Petelo gave him $150, and Mrs Seu says she saw the money the following morning. Both say that the money was given with the condition “tautuana le palota”. As for the inconsistency about who was in the car, the inconsistency does not appear to be material. The allegation of agency is made against Mr Petelo and not Mr Sagaga. The key evidence on this point is that of Mr Nofovaega; if it was necessary, the Court would prefer the first-hand evidence given by Mr Nofovaega.
  3. On the question that Mr Nofovaega did not explain why he thought Mr Petelo was an agent, Counsel’s submission overlooks Mr Nofovaega’s evidence that Mr Petelo had asked him to attend a sign up meeting to pledge his support for the Respondent. The Court considers this evidence of agency compelling. Finally, on the submission that neither Mr Nofovaega or Mrs Seu mentioned in their affidavits that they were meeting Mr Alema the following day, the Court does not regard this as relevant. On the contrary, had the link with Mr Alema been mentioned, it might have given rise to a concern that the evidence was being cherry picked to suit a particular narrative.
  4. Respectfully, what the differences highlight for the Court is an inherent credibility in the witness statements. The two affidavits demonstrate the independent recollections of each witness. In this case, although the formatting and structure of the affidavits follow the same pattern, the contents of the affidavits, by the inconsistencies, demonstrate that the statements are of each of the witnesses and their independent recollection of events. Had there been a serious difference in the amount of money involved, hour of the day, or the words used to induce Mr Nofovaega, then it might have been arguable that the inconsistencies were serious and tended to undermine the narrative the Petitioner sought to rely on. The Court notes further that there was no evidence placed before the Court challenging the witnesses’ honesty or credit.
  5. For the reasons given, the inconsistencies do not undermine the statements, which the Court accepts are inherently reliable.
  6. Ms Lui submits that there is no independent witness who corroborates the bribe and the words of inducement. She submits that someone independent had to have observed the “transaction” taking place, and the absence of such corroboration reduced the weight the Court could give Mr Nofovaega’s statements. Respectfully, Mr Alema gave evidence about what he was told but was not cross examined. Counsel may have taken the view that Mr Alema’s statement was a hearsay statement – Mr Alema giving evidence of what Mr Nofovaega told him what another person had told Mr Nofovaega. Such a view is a misjudgement in light of the jurisdiction of the Court to take into account evidence that may not otherwise be admitted in the Supreme Court.

B. A breach of the constitutional right to cross examine

  1. Ms Lui puts her concern in this way:
  2. The Court accepts, there is a Constitutional right to a fair trial, and this necessarily includes the right to cross examine. The general principle is that the right to cross examine is a vital pillar of the adversarial system, and cross examination is a critical tool for establishing the truth when facts are in dispute.[17]
  3. In this case, however, there are no facts in dispute. The Respondent, despite repeated invitations from the Court at key times, decided not to call any evidence to challenge or rebut the evidence of the witnesses for the Petitioner. In these circumstances, there is little if any point to cross examination, other than, perhaps, to point out inconsistencies and failure to mention things, which Ms Lui did by way of submission.
  4. What we do not have is a dispute of the facts - there is no evidence from a Respondent witness to say that Mr Nofovaega lied or was mistaken about his evidence, or that Mr Petelo was not an agent of the Respondent, or that Mr Petelo did not go to Mr Nofovaega’s house at 11pm or at any other time on the eve of the 2025 General Election, or that Mr Petelo did not give money to Mr Nofovaega, or that Mr Petelo never made suggestions to influence Mr Nofovaega’s vote. These challenges of the facts would give rise to a factual dispute that would require the Court to determine which version of the facts are to be believed. In this case, no such dispute arose. Indeed, the one witness that did turn up, Leapaga Alema, was not cross-examined on his evidence as to what Mr Nofovaega is alleged to have told him, nor was an application made for him to be recalled for cross examination after the affidavits of Mr Nofovaega and Ms Seu were tendered into evidence.
  5. If what Ms Lui means by cross examination is that she did not have the opportunity to put her client’s case, or that she was entitled to test whether the witnesses were being truthful, she will likely have encountered some difficulty. That the Respondent did not lead any evidence meant there was no case to put to the witness. Further, questions purporting to advance an evidential foundation, which did not exist, would have come under the scrutiny of s. 73 of the Evidence Act, which deals with improper or unfair questioning.
  6. The Court observes that whilst protecting the right to a fair trial is guaranteed under article 9 of the Constitution, the Court has developed principles concerning the admission of hearsay evidence, where witnesses do not appear in Court to give their evidence.[18] It should be noted the right protected by article 9(4)(d) is specifically for criminal offences; it is a right “to examine or have examined witnesses against him or her” and applies to “[e]very person charged with an offence”. This case is not a criminal trial, but an election petition heard before the Supreme Court in its civil jurisdiction.[19] The Court’s application of the criminal standard of proof in EP matters does not mean that the Court should therefore treat the case as a criminal proceeding. Such an approach would risk a distortion of the public interest purpose of the EA, which is to preserve the integrity of the electoral process by way of a civil proceeding in the Supreme Court’s Electoral jurisdiction. This Court’s purpose is not to determine criminal culpability, which is something for the District Court.
  7. For completeness, the Court notes that generally there are many cases involving defendants and accused person facing serious criminal charges, where hearsay statements made by complainants are admitted into evidence, where cross examination is not possible.[20] The Court accepts and applies the high authority of the New Zealand Court of Appeal stated in R v L [1994] 2 NZLR 54 at 53, for this principle:

C. Agency

  1. Ms Lui submitted the Petitioner has not proved agency, because the witnesses’ evidence does not prove beyond a reasonable doubt an agency arising out of an agency appointment, or by implication, through the Respondent’s recognition and acceptance.
  2. The Court rejects this submission for the reasons set out above. Taken together, the Petitioner’s evidence supports, beyond reasonable doubt, an inference that Mr Petelo was engaged in canvassing and electioneering, and distributing money late at night, on behalf of the Respondent to influence Mr Nofovaega’s vote. The doctrine of electoral agency applies to the circumstances of this case, and means the Respondent is responsible for Mr Petelo’s action of giving money to Mr Nofovaega to induce him to vote for the Respondent. This agency, therefore, means the Respondent is guilty of the corrupt practice of bribery, in breach of s. 94 of the Electoral Act.
  3. The Court notes that Ms Lui at one point considered asking the Court to admit a sentence in on part of one of the Respondents 4 affidavits filed in reply to the Petitioners supplementary affidavits referred to above. She had obtained Mr Su’a’s consent to the admission of a redacted copy of an affidavit, save the one sentence, which the Respondent wanted to have admitted as evidence. The Court asked that the witness come to Court to give that evidence, if he was able to be located.
  4. However, Ms Lui later advised that she was instructed to proceed and not call the witness. Had this witness given evidence, it may have put a key issue (whether Mr Petelo was an agent) in dispute, raising a doubt. If disputed in this way, it may have then also opened the way for Ms Lui to argue that the lack of an opportunity to test the Petitioner’s absent witnesses’ evidence significantly prejudiced her client, and therefore no or little weight could be placed on Mr Nofovaega or Mrs Seu’s evidence. However, the matter proceeded differently.

PART 5
THE DECISION

  1. For the reasons stated, the Court finds allegation 5(d) against the Respondent proven beyond a reasonable doubt. The Court makes the following determination:
  2. The Court will report its findings on these and other matters it considers relevant to the Honourable Speaker accordingly.

CHIEF JUSTICE PERESE
JUSTICE CLARKE

[1] The case has had its unique challenges, which have resulted in the delay of the delivery of this determination.
[2] Since the filing of the EP, the Respondent has been appointed to the position of Deputy Prime Minister of Samoa.
[3] Electoral Act 2019, s. 116.
[4] The Respondent was not obliged to and did not offer any evidence in chief or rebuttal to challenge the Petitioner’s three witnesses. The Respondent at one point considered applying to admit one sentence from one Respondent affidavit, see further at [82] and [83]
[5] s. 131(1) of the Electoral Act 2019 – A Petitioner shall not withdraw an election petition without the leave of the Supreme Court upon special application to be made in the prescribed manner.
[6] Exhibit I3 at the Hearing of the Joint Application for leave to withdraw the Petitioner and Counter Petition.
[7] Lameko v Onesemo [2025] WSSC 115
[8] Mr Su’a filed an undated “Memorandum confirming withdrawal of particular allegations for the Petitioner”, received by the court on 28 October 2025. This memorandum has not been determined by the court, and the allegations of bribery and treating particularised at para 1 of the memorandum remain on foot.
[9] Afzal v Khan [2023] EWHC 376 at [15].
[10] Exhibit 2
[11] Exhibit 3
[12] The Electoral Roll for Falealili No. 1 records that all three witnesses are voters at that Constituency.
[13] Exhibit 4
[14] s. 96 of the EA

[15] Petaia v Pa’u [2006] WSSC 1 (4 December 2006).

[16] Simmons v Khan [2008] EWHC B4 (QB) (18 March 2008)
[17] Miller v R [2024] NZHC 3753 [29]
[18] See discussion in: Police v Brown (Unreported) Supreme Court of Samoa, 04/09/2020
[19] See: Simmons v Khan [2008] EWHC B4 (QB) (18 March 2008) at [60], an election court being a civil court
[20] See: Police v Brown (Unreported) Supreme Court of Samoa, 04/09/2020; R v L [1994] 2 NZLR 54; Anderson v R [2020] 3 NZLR 429; Angus v R [2017] NZCA 454.

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