IN THE COURT OF APPEAL OF TONGA 
CIVIL JURISDICTION 
NUKU’ALOFA REGISTRY 

AC 3 of 2023 
[CV 82 of 2022] 

IN THE MATTER OF 	THE ELECTORAL ACT (“the Act”)

BETWEEN:
FELETI ULAKAI                                                                                   	 Appellant                                                                                      	
-v-
PAULA PIVENI PIUKALA	Respondent

JUDGMENT OF THE COURT

Coram:	Randerson J
	White J
	Morrison J
	 
Appearances:	Mr W C Edwards SC for the Appellant 
	The Respondent in person

Date of hearing:	11 July 2023
Date of judgment:	26 July 2023

Introduction

1.	On 13 February 2023, Cooper J dismissed a petition brought by Feleti Ulakai, challenging the election of Paula Piveni Piukala on 3 November 2022. Mr Ulakai was also ordered to pay the costs.
2.	Mr Ulakai now appeals against those orders.
Legal principles

3.	The petition alleged that the respondent committed bribery under s 21(1)(a) of the Electoral Act (the Act). It relevantly provides:
“(1)	Every person commits the offence of bribery who, directly or indirectly, by himself or by any other person on his behalf — 
(a)	gives any money or valuable gift to or for any elector, or to or for any other person on behalf of any elector or to or for any other person, in order to induce any elector to vote or refrain from voting; … 
(2)	In this section, a reference to giving money or valuable gift includes a reference to giving, lending, agreeing to give or lend, offering, promising or promising to procure or try to procure, any money or valuable gift. 
(3)	For the purposes of this section, any money or valuable gift given or offered or agreed to be given (in the absence of good consideration) to any person … within 3 months of any election by or on behalf of a candidate, shall be deemed to have been given or offered or agreed to be given for the purpose of influencing the vote, unless the contrary be proved.”

4.	The Act provides that the person giving the bribe under s 21(1)(a) is guilty of a criminal offence: s 21(8). The same applies to the recipient of a bribe: s 21(1)(g) and s 21(8). Therefore, as will be seen, it is not surprising that the standard of proof applicable to the allegation of committing bribery is the criminal standard, i.e. beyond reasonable doubt.
5.	There are a number of legal principles applicable to the hearing of a petition based on alleged bribery under s 21(1)(a).
6.	The requisite standard of proof to be met by the petitioner is the criminal standard, i.e. beyond reasonable doubt: Tu’i’onetoa v Kiu. There, after a careful review of the statutory provisions and authority, this Court said:
“14.	In contrast to Mauritius, but like the United Kingdom, s 32 of the Electoral Act of Tonga uses the language of the criminal law to describe the determination of the electoral petition. Accordingly, except where s 21(3) casts the onus of proof on the candidate, the onus is on the petitioner to establish the offence beyond reasonable doubt.
15. 	This conclusion is not affected by s 35 which permits the court to have regard to evidence that would be inadmissible on a criminal prosecution and to proceed without regard to forms or technicalities. In determining where the substantial merits and justice of the case lies, the court must be satisfied beyond reasonable doubt (except where the onus lies on the candidate under s 21(3)) that the petitioner has established that the candidate committed the offence. No doubt the same considerations apply where the petitioner charges the candidate with offences under ss 22 or 24, although that is not a question that presently arises.”

7.	However, if s 21(3) comes into operation because the money or gift is within three months of the election, then the respondent assumes a burden of proof only on the balance of probabilities:
“17.	In this case, where the alleged bribery was within three months of the election, the petitioner needed to establish beyond reasonable doubt that:
(a)	there was an offer or promise by Dr Tu'i'onetoa, or by someone on his behalf;
(b) 	of a gift of money or other valuable thing;
(c) 	to an elector or electors or to any other person on behalf of an elector or electors or to any other person. (This third requirement is complicated and is discussed below at paras 38 - 40.)
If that could be proved by the petitioner, it was then for Dr Tu'i'onetoa to prove on the balance of probabilities that the offer of the gift was not made in order to induce any elector or electors to vote or refrain from voting. It was irrelevant whether the impugned action actually had any effect on voting.”

8.	The first limb of s 21(1)(a) requires an act on the part of the respondent, that is, directly giving money or a gift to someone.
9.	The second limb of s 21(1)(a) requires that there be proof of actual or inferred knowledge and assent by the respondent to an act of another person, that is, money or a gift being given by that person on the respondent’s behalf. As LCJ Whitten QC said in Sika v Fasi:
“On its proper interpretation, the second limb requires actual or inferred knowledge and assent on the part of the respondent to the money or gift being given by that other person on his behalf. Otherwise, if a supporter gave money or a gift to a voter without any knowledge or authorization by the candidate (or even contrary to the candidate’s express instruction not to do so), a candidate could be found guilty of bribery. That, in my view, is not a result Parliament may be presumed to have intended.”

10.	In other words, what is required is a subjective and not objective consideration of the actions and mental state of the respondent.
11.	The recipient of the money or gift, the “elector” referred to in s 21(1)(a), must be a registered voter. 
12.	Thus, the three elements that the petitioner had to prove beyond reasonable doubt were:
(a)	that money or a valuable gift was given (or offered) by the respondent directly, or indirectly by someone on his behalf;
(b)	the money or gift was given (or offered) to an elector, namely a registered voter; or to another person on behalf of a registered voter, or to someone else; and
(c)	the money or gift was given (or offered) in order to induce a registered voter to vote or refrain from voting.
The appellant’s case at the trial

13.	The petition alleged the following specified acts constituting the bribery:
(a)	someone giving money on the respondent’s behalf to electors of Tokomololo, Pea and Ha’ateiho; and
(b)	someone giving a gift such as groceries on the respondent’s behalf to electors of Tokomololo, Pea and Ha’ateiho.
14.	The money giving occurred in this way:
(a)	on 30 September 2022, at the residence of Mr Fevaleaki, prizes were announced for three people participating in a poetry competition;
(b)	on 28 October 2022, at Ha’ateiho, prizes were given for participants in a poetry competition; 
(c)	the prizes for poetry competitions were, in each case, from sponsors; and
(d)	on 17 September, at the Ha’ateiho Golf Club, the respondent gave an envelope of money to Tevita ‘Eli and a person called Pita.
15.	On 8 October 2022, two women distributed groceries to older people at Ha’ateiho, including the home of Mamata Kohinoa.
16.	As can be seen the case for the petitioner was that, except in the case of the money given by the respondent himself at the Golf Club, all other acts were of things done indirectly on the respondent’s behalf.
17.	The respondent’s response to the petition made it clear, as the trial judge found, that the petitioner was put to strict proof of the elements of the claim.
18.	At the trial the witnesses for the appellant (the petitioner) were:
(a)	the petitioner, Mr Ulakai;
(b)	Mr Hopoi;
(c)	Mr Halaholo; and
(d)	Mr Mr Vea.
19.	The evidence adduced from them can be split into two general categories: (i) documentary evidence in the form of Facebook screenshots and videos; and (ii) oral evidence, largely about how the Facebook screenshots and videos were produced, what the witnesses said was shown by them, and what their opinion was as to what they signified.
Documentary and other evidence

20.	The documentary and oral evidence can be summarized as set out below. A fuller summary of the evidence is to be found in the reasons of the trial judge, but what follows is sufficient for the purposes of this appeal.
21.	Mr Hopoi produced the documents that became Exhibits B, C, D, E and P2. Exhibits B, C, D and E consisted of four video files he had downloaded from a Facebook site. Exhibit P2 was a bundle of images and text, also taken by him from a Facebook site.
22.	In his evidence Mr Hopoi said that:
(a)	he was a senior lecturer at the School of Information and Computer Science at the national University of Tonga;
(b)	he had watched the respondent’s campaign “through live streaming on a few of the respondent’s supporters’ facebook accounts”, but did not watch it at the same time as the event occurred, but “the following day after … each campaign”; these documents were Annexure A to his affidavit;
(c)	he “screenshot photos, status, comments, participants at the poetry competition and awardees which were posting on facebook and also from the same live videos of the respondent’s campaign”; these documents were Annexure B to his affidavit;
(d)	one of the videos of a campaign event records the MC announcing the names of two sponsors and the amounts they provided, Tonga Vunipola for 300 and 500 from Joecy Taufa; 
(e)	Exhibits A, B, C, D and E were created by him,
(f)	some photos from Annexure B to his affidavit had been created by him by using: “an application software which is usually used in forensic which is called snipping tool which allowed me to … copy this technique is called forensic copy”;
(g)	Exhibits A, B, C, D and E all contained photos or videos which were downloaded by him the day after they had been uploaded to the Facebook accounts;
(h)	he created the screenshots in Annexure B to his affidavit because:
“I had a feeling or curiosity because there appears to be a lot of [prizes] that there was something wrong. I got this idea if I could quote there was a civil case last year between Tatafu Moeaki and Mateni Tapueluelu. The presiding judge was Justice Niu. On paragraph 100 on this decision which appears at page 23 his honour quoted a phrase from a court case. This phrase appeared and let me share it to you in the English language. “Giving of money always likely to be misconstrued. I then tried to define misconstrued and the English meaning of the word is the understanding of something that is wrong. Understanding that is mental elements. … The understanding as part of the mental element. … That understanding allows influence to interfere. That is the real reason I conducted this work.
[as to the mental element] From my recollection the term was cognitive domain. Giving of money is always likely to be misconstrued. The repeated presence of money in the videos I downloaded clearly shows that the minds of those who competed in the poetry competition are being influenced. And if the element of the bribe is complete then it is a bribe. … Cognitive domain refers to the way individual thinks. And when money appears like what I said before it influences the thinking which is totally different from paying money in secrecy.”

(i)	he had not spoken to any recipient or sponsor, but left that to the lawyers;
(j)	when asked whether he had spoken to the receiver of the gift at the Golf Club, he reiterated his position:
“Like my previous evidence I have mentioned there the civil case between Tatafu Moeaki and Mateni Tapueluelu which there was a phrase that appeared there paragraph 100 where the phrase that appeared at that paragraph “giving of money is always likely to be misconstrued” it started in the video Mr Piukala is referring to where I noticed the actual giving of money. I then took time there and speculate whether would there be any campaign that shows this. 3 videos later that were added to this. [As] the time went on the appearance or the presence of money became more and more clear or occurred more and more. Because of this it increased my ability to prove this misconstrued. That is the main reason of these videos and photographs. I gave them to the lawyer and if consultation was to be done with the people who appear in those videos and photographs that would be the lawyer’s responsibility.”

23.	In Mr Ulakai’s affidavit he said he had not been at any of the events where the poetry competition occurred, nor at the Golf Club. His comments were based upon his watching the videos and screenshots. However, he had been present at the home of Mamata Kohinoa when the two women distributed the groceries, and heard them calling out to her to serve her with the groceries.
24.	In oral evidence Mr Ulakai added nothing of substance to his affidavit, which became Exhibit B3. In cross-examination he said:
(a)	he had campaigned for one of the respondent’s opponents;
(b)	he had not asked the MC at the campaign events where the money came from or who the sponsors were;
(c)	he had not asked any prize winner if they felt bribed or induced;
(d)	at no point had the respondent expressed any assent or claim that the prize money was directly or indirectly from him;
(e)	he had not spoken to the recipients at the Golf Club; and
(f)	he did not ask Mamata Kohinoa where the gift of groceries came from, nor did he hear her say it was from the respondent; however, he knew that the two women had taken groceries around previously on behalf of a group called Vincent Paul; he spoke to one of the two women (Mele Folaumoeloa) who told him the groceries came from the St Vincent de Paul group.
25.	Mr Halaholo’s affidavit simply referred to his having watched a live stream of a campaign event where a poetry competition was held and prizes were announced but not given at that time. In cross-examination he said he had not spoken to the prize winners to find out if they were bribed, and the affidavit was his opinion based on watching the video. 
26.	Mr Vea’s affidavit referred to his watching live Facebook video of one of the respondent’s campaign events, that a poetry competition took place during the event and the MC announced prizes for all those who read a poem. 
27.	In his oral evidence he said he had seen videos of the Golf Club event as well as one at the Fevaleaki residence. He was at neither event.
28.	In cross-examination he said he spoke to the two recipients from the Golf Club but did not ask them if they had been bribed by the respondent.
29.	Apart from the matters dealt with above, all of the evidence from the four witnesses consisted of their opinions and assumptions about what the videos and photos revealed, hearsay evidence of some conversations, and (in some cases) their personal belief about whether any individual was a registered voter.
Challenge to the decision below – discussion

30.	It is convenient to deal with the challenge to the trial judge’s decision, at the same time outlining the submissions for the appellant.
31.	However, it is, in our view, important to first note several particular aspects of the case below.
32.	The first is that there was a complete absence of proof of the essential elements other than unverified social media posts and videos since no witnesses were present at the events (except in the case of the delivery of groceries to Mamata Kohinoa).
33.	The proof offered was almost completely based on social media posts of people not called at the trial. If a person was present at an event and took a video or photos, and identified them when they were produced at the trial, that would usually make them admissible.  There was nothing of that kind in this case. Mr Hopoi created the videos and images from social media posts which were, themselves, not made by him. No other witness produced videos or photos made by themselves. The material was therefore simply unverified as to source and content and strictly inadmissible. 
34.	The respondent agreed that the videos and photos could be tendered but did not waive the requirement of strict proof of all elements under s 21(1) of the Act.
35.	Secondly, this was a case based on circumstantial evidence. All the witnesses gave evidence based on what they saw after the event on videos or photos taken from the videos. With the exception of Mr Ulakai having been present when the groceries were given, no witness was actually present at any relevant time. No recipient of a money prize or gift was called, no sponsor of the poetry prizes was called, and the MC was not called. In fact, no evidence was given by any attendee at the poetry competitions.
36.	Further, there was no evidence of where the money came from, or to whom it went (beyond what might be inferred from the videos and photos). There was no direct evidence that any money was actually given. 
37.	As to the groceries, neither of the two women who were said to have delivered them was called, nor was the recipient, Mamata Kohinoa.
38.	The consequence is that proof of the elements of s 21(1)(a) beyond reasonable doubt depends on inferences to be drawn from the evidence, such as it is. As this Court has pointed out previously, the alleged breach is a criminal offence and the standard of proof required is that to establish a crime. In our view, what follows is that to reach the required level of satisfaction as to the commission of bribery, the petitioner has to exclude alternative inferences beyond reasonable doubt. If there is a competing inference that is fairly open and consistent with innocence, and it is not excluded, that inference must be drawn in favour of the respondent. 
39.	Thirdly, given that s 21(1)(a) of the Act creates a criminal offence, and the allegation of bribery under that provision attracts the criminal standard of proof, there is no obligation on the part of a respondent to incriminate themselves by going into evidence. The consequence is that the repeated references, below and before this Court, to the respondent having failed to put, deny or challenge some fact, are not to the point. The onus of proof does not shift to the respondent to such an allegation, subject to the one situation covered by s 21(3).
40.	The deemed position in s 21(3) is that money or a gift given or offered within three months of an election is deemed to have been given or offered for the purpose of influencing the vote. On that issue only the burden of proof falls on the respondent to prove the contrary. It changes nothing as to proof of the elements otherwise.
41.	Fourthly, a striking feature of the appellant’s case before the trial judge was that despite issuing subpoenas to the various people shown in the screen shots and videos, and both those alleged to be sponsors and recipients of the money or gifts said to be bribes, none of those people were called as witnesses. No proper explanation was given for the failure to call them. The respondent referred to the fact that conduct money had not been given to those witnesses, but all that was then said for the petitioner was that “the situation changed”, and to debate whether conduct money was payable at all. The matter was left to be reviewed later. All that was said later was that Counsel for the petitioner had reconsidered the case and decided not to call them.
Ground 1 - poetry prizes

42.	The appellant contends that the evidence should have convinced the trial judge beyond reasonable doubt that the giving of prizes for reading a poem was bribery. In that respect the submissions refers to:
(a)	the evidence of Mr Vea that the poems were about the respondent and the MC called out the prizes;
(b)	the respondent did not deny that actual money was involved;
(c)	it is said that “it is not for the Appellant to prove that there were positive links between the sponsors of the poetry prizes and [the respondent]”; and
(d)	the petitioner proved that prizes were given for poetry read; the fact that the prizes were given within three months of the election and therefore s 21(3) applies.
43.	In our view, there are considerable hurdles confronting this ground, which depends upon showing that the trial judge must have been satisfied beyond reasonable doubt of the elements under s 21(1)(a). 
44.	First, the evidence simply did not establish that money or a valuable gift was given (or offered) by the respondent directly, or indirectly by someone on his behalf. There was no evidence that the respondent did any relevant thing directly. Presence at the event is no basis to prove that he did.
45.	Further, the evidence was that sponsors were said to be providing the money for the prizes. Indeed, the names of some sponsors were announced in the videos, and the differing amounts they were said to be contributing. An alternative inference to that sought to be drawn (that it was done on behalf of the respondent) and one consistent with innocence, is open. That is that the prizes were from sponsors, and whilst they were to be given at a campaign event, it was the work of the sponsors for themselves and not on behalf of the respondent.
46.	The failure to call the witnesses subpoenaed by the appellant allows that inference to be more strongly drawn. The fact is that the appellant’s case identified particular people who were said to be recipients, or sponsors, or otherwise involved, and they were subpoenaed to attend and give evidence. Had there been any evidence that would have assisted the appellant’s case it would likely have been called. The fact that none of the witnesses were called suggests strongly that their evidence would not have assisted the case.
47.	Secondly, there was no evidence to prove, beyond reasonable doubt, that any of the recipients were registered voters. The only evidence as to this came from inadmissible opinion evidence based on inadmissible assumptions from the four witnesses called. It could have been proved by calling the recipient witnesses, but they were not. The roll of registered voters could have been used, but it was not. The only evidence came in the format that recipient X was known to a witness, and that witness knew that X lived in a particular voting district or had voted in the past. Neither proves, beyond reasonable doubt, registration at the time of the alleged bribery.
48.	Further, the Electoral Act creates an obligation on Tongans who are 21 years or more, and not disqualified under clause 64 of the Constitution, to apply for registration as an elector, for the constituency in which they have been resident for the period of 3 months: s 4(3) and (4). Whilst that creates an obligation to apply, it does not prove that they have, or that the registration was effective. In other words, those provisions do not lead to the conclusion that just because someone has been a resident in a constituency for three months they must be registered as an elector. 
49.	We note also that for the purposes of this case any relevant registration would have to be in the constituency the subject of the particular by-election.
50.	We pause to note that many of the photos created by Mr Hopoi contained words inserted at the top which included the words “Voter Reg No”, and a number that followed. There are two things to note about that. First, the trial judge found that those words were not part of the proven evidence. No evidence was given as to the source of those words, beyond the fact that Mr Hopoi had created the documents using his forensic snipping tool application. The danger when a non-expert witness provides supposed evidence that is not simply a true copy of something, but rather the product of engaging in amateur sleuthing, is obvious. Mr Hopoi was not an expert nor called as one. A court would normally be very cautious about accepting at face value something that was not simply a copy but a new creation. The second thing is that there was no evidence given as to the source or veracity of the so-called voter registration information.
51.	Thirdly, the evidence was insufficient to prove, beyond reasonable doubt, that the money or gift was given (or offered) in order to induce a registered voter to vote or refrain from voting. The appellant submits, rhetorically, why else would prizes be given at a campaign event? The open competing inferences, consistent with innocence, are several:
(a)	the sponsors did it to encourage attendance or enhance excitement; 
(b)	the sponsors simply intended to encourage participation in publicly reading out a poem, offering a prize to get participants to overcome their reticence at public speaking; or
(c)	the sponsors did it to publicize themselves.
52.	Further still, there was some evidence that several $100 pa’anga sums were offered that were different from the prizes. That does not avail the appellant’s case, which was confined to the bribes being the prizes for the poetry. However, it lends weight to the competing inferences, as encouragement was being given for reasons apparently unrelated to the poetry competition.
53.	Because no sponsor or recipient was called, the inferences are all the more available to be drawn.
54.	Even more problematic for reaching a state of satisfaction beyond reasonable doubt is the fact that the evidence showed persons apparently below voting age getting a prize, or participating in reading poems.
55.	The trial judge was alive to the difficulties posed by the state of the evidence and possible other inferences that were open.
56.	Fourthly, proof beyond reasonable doubt that money was actually given is lacking. True it is that the photos show various people being handed an envelope with a money sum written on it. But, no witness was called to establish that a particular sum had, in fact, been paid to a particular person. The witnesses who were called all made inadmissible assumptions as to what the photos and videos signified in that respect. Any such conclusion was one for the trial judge to make. This difficulty in the proof to the requisite standard was referred to by the trial judge. As his Honour said, “in the frenzied world of election campaigning and social media posts (not to mention when both collide), what is real and what is sham with a view to induce goodwill and so votes through advertising needs to be carefully considered”. 
57.	That difficulty is enhanced when the evidence was that prizes were announced at one function but to be handed out at a later time. There was no evidence connecting the two. Mere offers of a prize was not within the case advanced by the appellant.
58.	Fifthly, reliance upon the Facebook posts for their truth, in the absence of the author being called, is insufficient proof, and certainly does not enable the standard of proof beyond reasonable doubt to be met. At the trial none of the witnesses called were able to say that any post was true – they simply assumed it or held the irrelevant opinion that it was. This difficulty was one that influenced the trial judge in his Honour’s reasoning.
59.	Sixthly, the failure to call the subpoenaed witnesses (recipients, sponsors and perhaps others) created a logical difficulty for the trial judge in reaching a state of satisfaction, beyond reasonable doubt, as to what the prize arrangements really were. The evidence that was offered was the videos and photos, without explanation beyond what they showed. No author was called, no participant, no organiser, no recipient, and no sponsor. The trial judge rightly saw that as creating a difficulty in the proof.
Ground 2 – the Golf Club event

60.	In respect of this aspect of the case the appellant challenges only the finding that it had not been proved that Tevita Eli was a registered voter. The appellant submits that Mr Vea’s evidence was sufficient to establish that fact.
61.	The relevant evidence relied upon commences with conversations Mr Vea said he had with Hola (a person said to have taken the video), Mr Eli and Pita, over kava. He said:
(a)	Mr Hola explained “how the two men got rich at the golf course”; and
(b)	Mr Eli said “at least we got a beer but its just a joke”.
62.	It is obvious that such out of court statements by a person not called are inadmissible.
63.	Next, in cross-examination Mr Vea said, responding to a question about whether he had asked Mr Eli if it was a bribe or not:
“Vea: 	At the beginning of the campaign of the bi-election there were 3 candidates from Haateiho and Tevita Eli and Pita Uoleva they supported a different candidate on the first election and not this representative. When we reached the bi-election I was able to tell how they had moved from this side to the other side even though that candidate did not run for this bi-election. That was my belief.
Piukala:	That was your opinion and assumption?
Vea:		Yes.”

64.	The trial judge found that it had not been proved that Mr Eli was a registered voter, noting that Mr Eli had not been called and no voter register was put in evidence.
65.	The submission made is that the trial judge erred in so finding because Mr Vea stated that Mr Eli supported a candidate from Haateiho, which is in Electorate 7. On that basis Mr Eli was voting in Electorate 7.
66.	There are several reasons why that submission cannot be accepted.
67.	First, Mr Vea’s opinion as to who Mr Eli “supported” in the first election, is inadmissible to prove that fact, even if it were otherwise relevant. It can only be based on hearsay.
68.	Secondly, he was not responding to a question concerned with Mr Eli’s registration as a voter, but whether there was evidence of a bribe. The answer says nothing about registration, even if Mr Vea was qualified to say something on that topic, which he was not.
69.	Thirdly, Mr Vea used to word “supported” rather than the phrase “voted for”. Given that proof beyond reasonable doubt is required for this element, that is too vague to be of utility.
70.	Fourthly, as the trial judge noted, Mr Eli, who could answer the question, was not called, nor was a voter register produced. 
71.	Fifthly, Mr Vea’s conclusion that he “was able to tell how [Mr Eli] had moved from this side to the other side even though that candidate did not run for this bi-election”, is plainly an inadmissible opinion based on something unstated and therefore unknowable. It is no basis for the conclusion sought. 
Ground 3 – the groceries

72.	The submission here is that the onus shifted under s 21(3) given that the respondent accepted that there was a gift of groceries to Mamata Kohinoa and did not deny that she lived in Electorate 7 or that the two women who gave the groceries were strong supporters of the respondent. It is submitted that: 
“With respect, the learned Trial Judge erred in finding that these elements had not been proved, when the essential element of giving of a gift, within 3 months of the election to a person in the electorate is taken to be a bribe unless proved to the contrary. All those elements existed and therefore the onus had shifted and the Respondent chose not to address the allegations with any witness.”

73.	There are a number of reasons why this ground cannot succeed.
74.	First, the submission overstates that which was accepted by the respondent. It was accepted that groceries had been given by the two women to Mamata Kohinoa, and that occurred within three months of the election. It was not accepted that the delivery met the elements of s 21(1)(a). Those elements remained to be proved beyond reasonable doubt.
75.	Secondly, the submission mis-states the effect of s 21(3). All it does (in summary) is to deem a gift or money given within three months of an election to have been done for the purpose of influencing the elector’s vote. On that aspect only the respondent bears the onus of disproving that which is deemed.  All the other elements remain to be proved beyond reasonable doubt by the petitioner.
76.	Thirdly, that Mamata Kohinoa lived in Electorate 7 does not equate to proof that she was a registered voter. She was not called, nor was a voter’s register put in evidence. If she was not an “elector”, i.e. a registered voter, there was no vote to influence.
77.	Fourthly, that the two women (Mele Folaumoeloa and Kili Silini He’akau) were supporters of the respondent was only said to be the case by Mr Ulakai. No other proof of that fact was offered. Mr Ulakai could hardly be described as an independent witness. Quite apart from any other fact, he admitted campaigning for one of the other candidates. The only evidence was therefore an opinion held on an unknown basis.
78.	Fifthly, the evidence did not go so far as to exclude a competing inference, consistent with innocence, namely that the delivery was on behalf of the Church group, St Vincent de Paul. That is what Mr Ulakai said he was told by Mele, and no mention was made of the respondent. The sole basis for his view that the delivery was a bribe was that the usual St Vincent de Paul delivery was on 27 September and this one was on 8 October. The fact that the usual St Vincent de Paul annual delivery was normally made a week earlier does not mean that this delivery may have simply been a little later than normal, or it was a case of the original delivery not having been completed on 27 September. 
79.	In the absence of evidence from Mele Folaumoeloa and Kili Silini He’akau, it is, as the trial judge said, impossible to know what the arrangements were.
80.	Further, according to Mr Ulakai’s evidence, deliveries were made on the same day by Mele Folaumoeloa and Kili Silini He’akau to other “older people”. Nothing is known about those deliveries, or on what basis they were made, let alone that they had any connection with the respondent.
Conclusion

81.	For the reasons given above all challenges to the orders below have failed. The appeal must be dismissed, with costs.
82.	We make the following orders:
1.	The appeal is dismissed.
2.	The appellant must pay the respondent’s costs of and incidental to the appeal, to be fixed by the Registrar if not agreed.

Randerson J

White J

Morrison J