An election petition filed against Tongatapu 7 People’s Representative to the Legislative Assembly, Paula Piveni Piukala for alleged bribery, in the lead up to a By-Election on 3 November, 2022 was dismissed by a Supreme Court judge, today 28 February.

The petition was filed by Feleti Ulakai a registered voter for Tongatapu 7.

Ulakai sought a declaration from the court that Piukala’s election was void alleging that committed he bribery in five occasions in breach of section (1) (a) of the Electoral Act, and sought his election to be declared void.

The included claims of giving of cash prizes for poetry competitions at Piveni Piukala's campaign events, the giving of cash prizes at an event at the Golf Club and the giving of groceries to Mamata Kohinoa. He alleged that all took place within three-months of the by-election.

However, Ulakai failed to prove his claims.

Hon. Mr Justice Cooper issued a written 26-pages judgment dismissing the petition, after hearing evidence presented over three-days of trial from February 13-15, with further oral submission on 27 February, at the Supreme Court in Nuku'alofa.

"None of the allegations as set out in the petition, on the evidence called, was proved beyond a reasonable doubt, to the required standard. So the case for the petitioner has not been proved."

He ordered that Ulakai pay the costs in this proceedings.

Mr Piukala who disputed all the allegations in every respect, replaced former Tongatapu no. 7 Peole's Representative Sangster Saulala, whose election was voided, after he was found guilty on two counts of bribery in the lead up to the 2021 General Election, by Lord Chief Justice Whitten KC in 2022.

Allegations

The judge said this was an event where a poetry competition took place. It was held at a campaign event for  Mr Piukala and he was present throughout.

“From a video footage and the transcript, it is clear that during the course of that event poems were read and prizes announced, and the allegation is that money was given at this event and was a bribe, it being within three-months of the by-election.

“In any event, there are three aspects to this allegation that need to be analysed, (i) were these offers to give prize money for poems made on behalf of Mr. Piukala? (ii) was prize money given? If prize money was given on behalf of Mr. Piukala and was it to a registered elector?”, said the judge.

"The giving of the prizes for poems could have been a spontaneous event, for all I know. Fatafehi Lola was said to have been a sponsor, and has not been called to give evidence. What that person did and why is therefore unclear. Just as the arrangements made by other sponsors of the prize money."

“There is no evidence how this event was organised, for example whether there was a program of activities or not,” he said.

“In addition, none of the people associated with the poems or said to be recipients of the cash prizes were called. There then is no evidence from them as to whether they were registered voters. No document has been provided in respect of those registered to vote. In short, this issue has been entirely neglected. Thus it seems to me that every aspect of the first three elements that need to have been proved have failed.

“This part of the allegation has not been proved,” said the judge.

Rugby event

The judge said again, this was an event where a poetry competition took place as a campaign event for Mr Piukala, where he was was present.

He said in portions of audio recordings the respondent during evidence, “he makes a plea for votes, there is an announcement addressed to the "sponsors" of the poetry competition. There was then an announcement  that "a little girl," won a prize and that Joyce Taufa won $500. After that further speeches in support of him then an announcement that the poems would start.”

Exhibits also showed a Facebook page with the name "Fatafehi Lola". The author of that Facebook page was not called to give evidence.

The judge said, there were references to certrain people as having a stated "voter reg" number and while that had been printed on some of those pages, there was no evidence of this adduced.

“Were cash prizes given to a registered voter, there has been no evidence of this either; there appears to be a hole where the evidence was meant to be and nothing has been adduced to deal with this point.

“Again, not a single person said to have been given cash prizes for this event have been called to give evidence, or have the record of registered electors beenadduced and put into evidence.

“After carefully reviewing this allegation, I conclude every aspect of it has failed,” he said.

Kelepi Tauelangi residence event

The judge said once more, this was an event where a poetry competition, as his campaign event.

In this case, again, not a single person said to have been given cash prizes for this event have been called to give evidence, or have the record of registered electors been adduced and put into evidence.
v“This limb has not been established either; again, this allegation fails for the reasons,” ruled the judge.

Golf Club event

The judge said, Mr Piukala had accepted during the course of the trial, he had given a gift at that event and that the gift was money. Gifts of money had gone both to Tevita Eli and Pita Poleva who were both registered voters.

Mr Piukala had not given evidence so had not shifted the statutory assumption pursuant to section 21 (3) of the Act.161 but he submitted, that the recipients were people he knew well and friends, his actions were based only on friendship, and was not bribery, among others.

“It was agreed and concluded that that it did indeed contain money which was given to the person identified as Tevita 'Eli (and also one to Pita Poleva) directly by Mr Piukala.

"But was it to a registered voter?That part remains unknown. While, Tevita 'Eli had been the subject of summons and subpoena, he was not called. It might well be assumed he was a registered voter given his attendance at campaign events, yet since he did not give evidence nor was any register put into evidence, that side of the allegation remains unproved. The same applies to Pita Poleva."

“For those reasons this allegation also has failed to be proved,” he said.

Groceries gift

“In this occasion, unlike the other allegations there is no video evidence, facebook or other social media posts, still images or transcripts that relate to this allegation,” said the judge.

He said evidence came from, inter alia, Mr. Ulakai, stated that he was present at the home of Mamata Kohinoa when the groceries were given to her. It was accepted by Mr. Piukala that the groceries were given and that was done by Mele Folaumoeloa and Kili Silini He'akau.

“Without evidence from Mele Folaumoeloa, or Kili Silini He'akau, it is impossible for him to know what the arrangement was that led to groceries given to these people or what their relationship, if any, to Mr. Piukala was at that time,” he said.

"It was accepted that groceries, so a valuable gift was given. So I am quite sure that aspect has been proved. Once again there was never any evidence that Mamata Kohinoa was a registered voter, her having not been called to give evidence and no documentary evidence of that fact adduced."

He said from that analysis of the evidence this allegation also failed to be proved.

"None of the allegations as set out in the petition, on the evidence called, was proved beyond a reasonable doubt,so to the required standard. So the case for the petitioner has not been proved."

Pointed out

The judge then pointed out as a footnote, “that it might be thought that because section 21(1) includes within the giving of money or valuable gift the promise of doing the same, so that it could be argued that the petitioner in not proving money was given in respect of the poetry competitions events, could still rely on the promise when a person was told they had won.”

“Conceivably that argument would be obviated by section 35 of the Act:

“On the trial of any election petition, (a) the Court shall be guided by the substantial merits and justice of th e case without regard to legal forms ortechnicalities, (b) the Court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the Supreme Court.

"Yet, the need to prove all aspects of a case, where a respondent has clearly stated that he disputes all matters and puts the other side to strict proof, means a failure to prove a necessary element, such as the people allegedly given groceries or money were registered electors can not be overlooked and section 35, in my judgement, does not empower me to do so or allow me to have such evidence produced to fill a gap in a party's case," he stated.