Tywearingatie (Appellant) v SD (Respondent) 2025 SDCR 37
Tie (Appellant) v SD (Respondent) [2025] SDCR 37
| Date of judgment | 5th January 2026 |
| Judges |
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| Held | The verdict in SD v tywearingatie [2025] Crim 104 is upheld. |
| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge Brandmal
(with Judge Thyme agreeing and Judge Ppatpat concurring)
Introduction and Argumentation
[1] Appellant (Tie) is appealing SD v tywearingatie [2025] Crim 104 for several reasons:
- [1.1] Firstly, they claim that the trial Court, by laying out three elements to be satisfied in order to find the defendant guilty of the crime of Vote Buying (Art. 41 Criminal Code), namely a) An offer being made, b) to exchange goods etc. and c) for a certain effect of election, and then subsequently assuming a), when a transaction that satisfies b) and c) can be proven, violated Art. 2 § 1. of the Criminal Code, that states that all elements must be proven beyond reasonable doubt.
- [1.2] Secondly, the appellant argues that the trial Court erred in finding the above mentioned element c) to be satisfied beyond reasonable doubt, because merely having access to another person's SUIT won’t always impact an electoral outcome. It therefore found the defendant guilty contrary to Art. 2 § 1. and Art. 41 of the Criminal Code.
- [1.3] Thirdly, the trial Court found Art. 41 to be a strict liability offense, with which the appellant disagrees, as to make an offer, they claim, one must be at least aware that one is doing so and therefore the language of the definition implies some form of intent. According to the appellant it would follow, that jest should have been considered as a defense pursuant to Ad Hoc Advocates LLP, ex parte adeacentpear (Appellant) v State of Simdemocracy (Respondent) [2025] SDSC 15.
- [1.4] Fourthly, the trial Court allegedly misapplied Art. 13 § 4, 5 CPA when it took judicial notice of the meaning of the english word “offer” even though both sides in the trial heavily argued and disagreed in the matter. Alternatively, it should have used the definition of the then repealed Commerce Actualizations Act of the word “offer” and not a dictionary definition.
[2] The Respondent (The State) disagreed with the appellant’s submissions and rebuts with the following:
- [2.1] Firstly, the Respondent agrees with the assessment of the trial Court, that Art. 41 consists of the three elements described above and that each element must be proven. However, they argue that if b) and c) are present in a transaction, a) must logically be present as well. Therefore, assuming it in this case, is not illegal, but rather a legally sound logical conclusion.
- [2.2] Secondly, they characterise the appellant’s fourth point as moot, as the definitions of the Commerce Actualizations Act are functionally equivalent anyways.
- [2.3] Thirdly and on the appellant’s third point, the State claims that offers are generally defined objectively and independent of personal intent and that fulfilling said offer is sufficient “mens rea” in most real life jurisdictions. Additionally, Art. 41 lacks any “identifying word” for a non-strict liability defense under Ad Hoc Advocates LLP, ex parte adeacentpear (Appellant) v State of Simdemocracy (Respondent) [2025] SDSC 15.
- [2.4] Fourthly and on the appellants second point, the Respondent claims that interpreting the statute to require definitive proof of a certain outcome would leave it without almost any effect and as such contrary to the lawmakers intent.
[3] The appellant was allowed to respond to the above points, which they briefly did, claiming that:
- [3.1] From a transaction satisfying the elements b) and c), a) does indeed not follow logically.
- [3.2] The rule in Ad Hoc Advocates LLP, ex parte adeacentpear (Appellant) v State of Simdemocracy (Respondent) [2025] SDSC 15 is a general rule that does not apply in this case due to the nature of an offer.
- [3.3] To interpret Art. 41 as the Respondent argued is not based in the text and therefore contrary to the principle of plain textualism that ought to be applied in a criminal context. A case of In re Replacement of KingRed31 [2020] SDSC 21 is not apparent. The argument of legislative intent is unconvincing.
On the issue of the implied element a).
[4] As statutory law dictates, all elements of a crime must be proven beyond reasonable doubt (Art. 2 §1. Criminal Code). The elements of Art. 41 are no exception. The room for logical conclusions á la “Well he had the gun so he must have murdered the victim” is very small (see SD v Peppa [2025] Crim 86 [12] where the prosecution had failed to argue that an element was present so the Court had to assume it wasn’t or SD v Satitty [2025] Crim 91 [14] where direct evidence was required). Persuasive Precedent is clear, generally, there must be direct evidence of an element of a crime presented by the prosecution and that evidence must prove the element to have been present beyond reasonable doubt.
[5] However, the Court can imagine situations where this is not the case. Namely, when the burden of proof is not carried by direct evidence, but rather by so many incidental facts (which themselves must of course be proven) that the logical conclusion from those facts is, beyond reasonable doubt, that the element was present (see SD v Traditionalist Insurgency for Defense and Enforcement (TIDE) [2025] Crim 70 [24.1]). Courts must be hesitant when applying this, as it cannot lead to effectively lessening the burden of proof, but on the other hand, especially for inner facts, such as malicious intent, direct evidence from the offender testifying will be rare to non-existent and in that case incidental facts may have to suffice.
[6] In his verdict, Judge Ivy claims in [25] that if a transaction occurred where goods were exchanged for a certain effect in an election, an implicit offer must have existed. This is however not always the case. Simply imagine the following: Person A sends Person B their SUIT with the words “for you my friend” without any prior contact on the matter. As a “thank you” person B sends person A 100t. An exchange of goods for a particular outcome in an election happened. Yet no offer, not even an implicit one, is detectable. This logic needs not apply to the specific case, but element a) can not be abstractly implied. However in [61], [53] and [44] Judge Ivy did find that an offer was, to some extent, present. The appeal did not contest these findings.
[7] It must follow that the persuasive precedent established in [25]'s last sentence is struck, but the individual convictions upheld.
On the level of certainty required for the effect on an election
[8] Once more, as statutory law dictates, all elements of a crime must be proven beyond reasonable doubt (Art. 2 §1. Criminal Code). The now relevant element c) “ for a certain effect of election” is however a property of the offer, not something that actually has to happen. It is similar to a murder not having to have happened in order to convict for attempted murder. The question is therefore, whether the offer was made and whether that offer was to exchange goods etc.. Consequently it is of no importance if the election was ever affected, as Judge Ivy correctly identified in [25] and [26] of his verdict. The appeal is hence unjustified in that regard.
On the nature of Art. 41 as a strict liability offense
[9] This Court is bound by Ad Hoc Advocates LLP, ex parte adeacentpear (Appellant) v State of Simdemocracy (Respondent) [2025] SDSC 15 [20] which reads: “Many crimes on SimDemocracy are “strict liability offenses”, in that they don’t have any mens rea whatsoever. The exceptions can generally be noticed by paying close attention to the words “purpose”, “intent”, “knowingly”, as well as their derivatives and synonyms.”. From this, it is clear that, absent any identifying words, extraordinary evidence is required for identifying a crime as a non-strict liability offense.
[10] The appellant argues that an offer is inherently connected to a certain state of mind and as such Art. 41 requires mens rea. This Court is not convinced by this, seeing how Art. 41 specifically talks about “Vote buying is the act of offering [...]” (highlights added), and thus refers expressly not to any mental state but rather a certain objective conduct. Art. 41 is a strict liability offense and the appeal must fail in this regard too.
On the word “offer” and how its meaning was found
[11] The trial Court saw the discussions about the meaning of the word “to offer”, discussed the definition of the repealed Commerce Actualizations Act and then decided on an independent definition. Insofar as the appellant requests a different evaluation they have presented no convincing legal reason for doing so. Repealed laws are just that, repealed and therefore a legal nullum. The appellant can also not claim a violation of Art. 21 § 3. of the Constitution, as their defense was heard and discussed in the final verdict. There is no Right to have a Court agree with you.
[12] To avoid doubt, for the definition of the word “offer” the Court did also not have to discuss SD v Traditionalist Insurgency for Defense and Enforcement (TIDE) [2025] Crim 70 [23] as that verdict merely described offers to not be necessarily explicit and did not definitely define them.
Verdict
[13] The verdict in SD v tywearingatie Crim 104 is upheld, except for those parts that claim the offer can abstractly be inferred from a transaction, especially [25]'s last sentence. A retrial is not necessary, as no miscarriage of justice occurred (see Art. 9 § 2. of the Judiciary Act).
CONCURRING OPINION by Judge ppatpat
[14] I join the Court’s judgment affirming the convictions. I also join the Court’s reasoning, with one reservation about the language that can be read to allow an element of the offence to be presumed rather than found.
[15] Even where the surrounding facts make guilt appear plain, a court must still identify—carefully and separately—why each statutory element is established beyond reasonable doubt. I would avoid any formulation that suggests an “offer” may be treated as automatically satisfied whenever an exchange and an election-related objective are shown.
[16] The question should be whether, taking the communications and acts as a whole, the defendant’s conduct would be understood as proposing a quid pro quo tied to an electoral outcome. On this matter, if both parties understand there to be a quid pro quo, I find it to be a reasonable inference that there is a quid pro quo.
[17] On this record, that standard is met. The transactions and contemporaneous messages are not ambiguous gestures later recharacterised; they are conduct that a rational factfinder could conclude embodied a bargain. The “offer” element is not supplied by assumption, rather, it is supplied by inference from proven facts.
[18] I also agree with the Court’s treatment of the SUIT count. However, on this, I would like to elaborate on my thoughts more than the majority has. Firstly, I completely disagree that one has to have the vote affect the outcome of the election for it to be criminal. The offence is complete upon the offer; performance is unnecessary, and in fact, illegal. Illegal contracts cannot be enforced. The statute criminalises the offer in exchange for a particular outcome, which means the offer has to be for a specific outcome, not that the outcome has to come to fruition. As such, I find the appellant’s argument to be utter nonsense.
[19] Finally, I agree that “jest” is not a freestanding defence here. Still, courts should be cautious not to transform overbreadth into inevitability. There will be cases in which context makes clear that no reasonable recipient could understand the words or conduct as a genuine proposal of an exchange for electoral advantage. In such circumstances, it is not that “jest” negates culpability; it is that the actus reus—an offer in exchange for electoral effect—has not been established.
- [19.1] I suppose an argument can be made that “offer” should be read to mean a genuine offer, and in that case, jest could apply. However, in a virtual democracy like ours where tone is not easy to infer given the lack of tone in a text message, I am wary of inserting such an argument when it is not readily apparent in the text. I expect a case to bubble up to the Supreme Court eventually regarding a similar matter to such, and look forward to its resolution.
[20] For the reasons above, I concur.
Citations
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