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Diau v Gubag [2003] PGNC 132; N2354 (7 March 2003)

N2354

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 30 of 2002

BENNY DIAU

V

MATHEW GUBAG

& EP 30 of 2002

ELECTORAL COMMISSION OF PNG

MADANG: SALIKA, J
7th March, 2003

ELECTIONS – Parliamentary Elections – practice and Procedure – No case submission at the end of petitioner’s case – no case submission upheld – no prima facie case established – Petition dismissed.

Cases Cited:

Delba Biri v Bill Ninkama [1982] PNGLR 342

Counsel:
Mr B Meten for Petitioner
Mr D Stevens for the First Respondent
Mr A Kongri for the Second Respondent

07th March, 2003

After the petitioner in the Election Petition closed his case the lawyer for the First Respondent made an application to stay the matter from proceeding any further and not require the 1st Respondent to answer any allegation of bribery attributed to him.

A no case submission is a procedure in a criminal trial where at the close of the case for the prosecution the accused may make the application that the prosecution has not established a prima facie case and that he should not be called upon to answer to the allegations or charges. An election petition is not a criminal trial nor is it a civil proceeding. It is a special jurisdiction of its own. In other words the procedure in a criminal trial and a civil trial do not apply to election petition proceedings.

The Organic Law does not provide a procedure for a "no case submission". S.212 of the Organic Law however says:-

S.212 – Powers of the Court

The judges of the National Court may make rules of court with respect to re-trial conferences and procedures relating to procedures under this part".

The judge have now pursuant to s.184 of the Constitution and s.212(2) of the Organic Law proceeded to make Rules and those rules are now in force and in use. These rules however do not provide for "no case" or non suit submissions. The closest rule is Rule 15 which says that the court shall deal with the petition and any challenges to the competency of it at the hearing.

The hearing of this petition has started and the petitioner’s case is closed. A challenge to the petition is made at this stage of hearing on the basis that no prima facie case has been established against the Respondent in so far as the allegations of bribery are concerned.

It was therefore proper in my view to go ahead and hear the application and make a ruling as to whether there is a prima facie case or not because a "no case submission" is a procedure "at the hearing" of the case.

Moreover as the key witnesses in this case have not given evidence I was of the view that there was merit in the application for a no case submission to be made.

For those reasons I proceeded to hear the application.

Originally there were 16 allegations in this petition. Thirteen of the allegations were struck down at the preliminary stage. This left 3 remaining allegations in the petition.

The 3 remaining allegations are:-

1. That on or about the 17th June, 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Sam Gawar for and on behalf of the Kaviak Sports Club with the intention to induce Sam Gawar and the members of the Kaviak Sports club who were electors in the election for a Member of Parliament for Sumkar Open Electorate for the Respondent in the capacity as electors contrary to s.215 of The Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
   
3. That on or about the 17th June 2002 at Dorokatum village, the first Respondent did give a bribe of K1000.00 to a Bill Biol for and on behalf of the Dorokatum Sports Club with the intention to induce Bill Biol and the members of the Dorokatum sports Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s. 215 of the Organic Law on National and Local Level Government Elections and section 103(a) of the Criminal Code.
   
11. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Ms Nei Ulet for and on behalf of the Bagabag Women Group with the intention to induce Ms Nei Uleti and the members of the Bagabag Women Group who were electors in the election for a member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to s.215 of the Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
    

It is clear to me that all these 3 charges allege bribery on the part of the First Respondent.

In so far as the first charge is concerned the elements of the charge are:-

(a) On or about 17 June 2002 at Dorokatuim village
(b) The First Respondent gave a bribe of K1,000.00 to Sam Gawar
(c) Who is an elector for Sumkar Open Seat Electorate.
(d) With intention to induce the said Sam Gawar to vote for him (the First Respondent).

In relation to this charge Sam Gawar was not called to give evidence, nor was there any application to tender the affidavit of Sam Gawar as evidence during the proceedings.

Counsel for the petitioner relied on the Agreed statement of Facts to show that on the 17th June 2002 Sam Gawar received a cheque for K1,000.00 made out to Kaviak Sports Club for an on behalf of the Sports Club.

The agreed statement of fact in so far as the cheque is concerned and says:-

"(1) On the 17th June 2002, there was a gathering at Dorokatum village.
(2) At the meeting the following cheques were presented:-

(i) Kaviak Sports Club – K1,000.00
(ii) Dorokatum Sports Club – K1,000.00
(iii) Kinim sports Club – K500.00
(iv) Bangme sports Club – K1,000.00
(v) Kinim Sports Association – K500.00

(3) The cheque of Kaviak Sports Club was received by one Same Gawar for and on behalf of the Kaviak Sports Club and that Sam Gawar did apply on behalf of Kaviak Sports Club money received from the Cheque".

The charge alleges the 1st Respondent giving a bribe of K1,000.00 to Sam Gawar.

The facts agreed to say that the cheque for K1,000.00 was given to Sam Gawar. There is a difference between what is alleged and what is agreed. That is the first variance of allegation from the evidence and agreed facts.

Moreover the act of the 1st Respondent giving a bribe of K1,000 to Sam Gawar is not an agreed fact. It was therefore imperative upon the petitioner to provide evidence to satisfy that element of the charge. That evidence ought to have come from Sam Gawar. The petitioner through Counsel submitted that the evidence of Daniel Amai and Peter Bais through their respective affidavits goes to satisfy that element of the charge. Daniel Amai and Peter Bais were not at Dorokatum village on the 17 June 2002.

They did not hear what was said at the gathering. What they say is in their respective affidavits is largely hearsay and only their belief that the money was a bribe to induce the voters. Their belief is what it is, only their belief. One cannot take it any higher than that.

The next element of the charge is that Sam Gawar was an elector.

Sam Gawar was not called to say if he was an elector in the Sumkar Open Electorate. Moreover, no common roll was tendered into evidence to show that Sam Gawar was an elector.

The petitioners counsel has submitted that one does not have to be an elector to be bribed. I agree one need not be an elector under s.103 of the Criminal Code to be bribed but the allegation is that Sam Gawar was an elector. There is no evidence that Sam Gawar is an elector. Evidence was not called to satisfy this part of the allegation.

The next element of the first charge is that by giving the K1,000.00 to Sam Gawar, the first respondent intended to induce the said Sam Gawar to vote for him in the coming elections.

The "intention to induce" evidence could have come from Sam Gawar or any of the person who were present at Dorokatum village when the cheque was given. If Sam Gawar did give evidence the court would have been entitled to draw inferences of intention to induce from his evidence. As it is I am not able to draw any inference of intention to induce anyone without the primary evidence of Sam Gawar.

Sam Gawar in my view is the only witness who could have said if he was induced to vote for the 1st Respondent with reference to the K1,000.00

In the whole the Petitioner has failed to establish a prima facie case against the 1st Respondent in so far the First allegation or charge is concerned.

I will therefore not require the 1st Respondent to answer that charge.

In passing there is an error in the wording of the charge in that it says "to vote for the Respondent". It should have read "First Respondent". I missed this at the earlier ruling.

In relation to the second charge it reads:-

That on or about 17 June 2002 at Dorokatum village, the First Respondent did give a brie of K1,000.00 to a Bill Biol with the intention to induce Bill Biol who was an elector in the Sumkar Open Electorate, to vote for the First Respondent in his capacity as an elector contrary to s.215 of the Organic Law and s.103(a) of the Criminal Code.

The elements of this charge are:-

(i) on or about 17th June 2002 at Dorokatum village
(ii) The First Respondent gave a bribe of K1,000.00 to Bill Biol.
(iii) Who is an elector of the Sumkar Open Seat Electorate.
(iv) With the intention to induce the said Bill Biol to vote for him (the First Respondent).

There is no dispute the 1st Respondent was at Dorokatum village on 17th June 2002.

Bill Biol was not called as a witness to give evidence on this allegation, nor was there any application made to tender his affidavit into evidence during the proceedings.

Counsel for the petition relied on the agreed statement of facts to prove the allegation.

The agreed fact in relation to K1,000.00 given to Bill Biol is that a cheque for K1,000.00 was given to Bill Biol for an on behalf of Dorokatum Sports Club and that the said Bill Biol did apply on behalf of the Dorokatum Sports Club money received from the cheque.

It is not an agreed fact that the Respondent gave the cheque or K1,000.00 to Bill Biol. Therefore it was once again squarely on the petitioner to produce evidence as to who gave the K1,000.00 to Bill Biol. The charge alleged that the First Respondent gave K1,000.00 to Bill Biol. A cheque of K1,000.00 and K1,000.00 are two different things. Again there is a variance between the agreed fact and the allegations.

The evidence of Daniel Amai and Peter Bais do not assist the petitioner’s case here.

In relation to the third element of the charge that the said Bill Biol was an elector, the common roll was not produced into evidence. Moreover Bill Biol has not come to this court to say if he is an elector. His affidavit was not sought to be tendered into evidence.

There is therefore no evidence that Bill Biol was an elector for the Sumkar Open Electorate.

The next element of the charge or allegation is that the K1,000.00 was given to Bill Biol with the intention to induce the said Bill Biol to vote for the First Respondent.

Any evidence to prove that element would have come from Bill Biol. He must give the primary evidence before any inferences can be drawn. Such evidence is not there and so there is no evidence in so far as the element of the charge is concerned.

Once again the petitioner has failed to establish a prima facie case against the 1st Respondent on the second remaining charge.

I will therefore not require the 1st Respondent to answer that allegation.

The remaining third charge alleges that:-

"On or about 17 June 2002 at Dorokatum Village the first respondent did give a bribe of K1,000.00 to a Ms Nei Uleti with the intention to induce the said Ms Nei Uleti who was an elector in the Sumkar Open Electorate to vote for the First Respondent, contrary to s.215 of the Organic Law and s.103(a) of the Criminal Code.

The elements of the charge or allegation are that:

(i) on or about 17 June 2002 at Dorokatum village.
(ii) The first respondent gave a bribe of K1,000.00 to Ms Nei Uleti.
(iii) Who was an elector for the Sumkar Open Electorate.
(iv) With the intention to induce the said Ms Nei Uleti to vote for him (First Respondent).

The affidavit of Nei Uleti was tendered with evidence by consent. Uleti in her affidavit said on Sunday 16 June 2002 Mr James Balbal who was Mr Mathew Gubag’s Secretary came to Mathew II Lutheran Church and presented a cheque to her and her Bagabag Women’s Group.

This evidence is in variance with the allegation. The allegation says "On or about 17th June 2002 at Dorokatum Village". The evidence is that on 16th June 2002 at Mathew II Lutheran Church.

Can the court cure this variances. Counsel have referred me to the decision of Kirriwom J in the case of Ben Micah v Ian Ling Stuckey (1997) N1790 where his honour referring to a drafting error of the allegation said:-

"But the Organic Law has set a very high standard from drafting of petition to actually proving the allegation n Court. All the allegations must be properly and clearly pleaded, setting out all relevant facts. There can be no changes after 40 days of declaration of results to the petition .... In a criminal trial proper the court has power to order amendment of an information and to charge a defendant with the offence supported by the evidence or to return an alternative verdict but not so in bribery cases under the Organic Law.

Moreover, the Supreme Court in the case of Delba Biri v Bill Ninkama (1982) PNGLR 342said that the Court does not have power to amend a petition after 40 days. This authority is binding on this court.

In so far as that element is concerned it has not been made out.

The second element to the allegation is that the 1st Respondent gave a bribe of K1,000.00 to Mrs Nei Uleti. Again the evidence of Uleti is that it was Mr James Balbal who gave the K1,000.00 to her and not the first respondent. Again this error cannot be corrected now.

The third element alleges that Uleti was an elector for the Sumkar Open Seat. Uleti in her affidavit asserts she is an elector for the Sumkar Open Seat. No common roll was produced to verify this. However because her affidavit was tendered by consent I accept she was an elector.

The next element is that the money was given with the intention to induce the said Uleti to vote for him (the first respondent).

The evidence for Uleti was that Mr Balbal presented the cheque and he said in pidgin language. "wanem samting yupela askim, mipela givim, yupela wokim wanem wantaim en, mi laikim report tasol".

She said she received the cheque on behalf of the woman and said she was aware the money came from Sumkar Open Electorate Fund. She said all the mothers of the Women Group were eligible voters.

She also said that she knew that the National Elections was on and voting was to take place the next day in their village. She also said this was the first time a cheque like this was given to her group. She also said her group never asked for any assistance from Mr Gubag.

There is nothing in Uletis evidence that she was induced to vote for the 1st Respondent nor is there any evidence from her that the money was given to her and her group with the intention to induce them to vote for the first respondent.

There is no evidence from Uleti that the money was a bribe to induce her to vote for the First Respondent.

The Court is left with no evidence in so far as that element of the allegation is concerned.

In the end I have no choice but to uphold the no case submission at this stage and I dismiss the remaining grounds because no prima facie case has been established.

In the circumstances I need not rule on the issue of locus standi.

The petition is dismissed.

Costs are awarded to the First Respondent and the Second Respondent.

The K2,500.00 will be used for costs.

That it be equally apportioned between the two respondents in this matter.
_____________________________________________________________________
Lawyer for the Petitioner : Narokobi Lawyers
Lawyer for First Respondent : Stevens Lawyers
Lawyer for Second Respondent: Nonggor Lawyers