Appeal Court dismisses election challenge of Feleti Ulakai [1]
Friday, July 28, 2023 - 20:25
Feleti Ulakai, who challenged the election of People's Representative Piveni Piukala last year, has lost an appeal against the dismissal of his petition by the Supreme Court of Tonga.
A Court of Appeal judgment released on 26 July, dismissed his appeal with costs. The appellant must pay the appeal court costs of the respondent Paula Piveni Piukala.
The 18-pages judgment said there was insufficient evidence and key witnesses were not called. Unverified social media posts were unacceptable.
The appeal related to the 13 February dismissal by Justice Cooper of a petition brought by Feleti Ulakai, which had unsuccessfully claimed that the respondent had committed bribery during the 2022 general election campaign.
In discussing the challenge to the decision the appeal court judges made note of several aspects of the case.
Absence of proof
“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). The proof offered was almost completely based on social media posts of people not called at the trial.
“Mr Hopoi [a witness for the appellant] created the videos and images from social media posts which were, themselves, not made by him.... The material was therefore simply unverified as to source and content and strictly inadmissible.”
“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.
“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.
“As to the groceries, neither of the two women who were said to have delivered them was called, nor was the recipient, Mamata Kohinoa,” the Appeal Court judgment stated.
Reasonable doubt
“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.
“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.
“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,” said the judges.
The Appeal Court hearing was held on 11 July.
Mr W. C. Edwards appeared for the Appellant and the respondent represented himself.