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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 1 OF 2006
BETWEEN
POWES PARKOP
Petitioner
AND
WARI VELE
First Respondent
AND
ANDREW TRAWEN
CHIEF COMMISSIONER
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent
AND
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Third Respondent
Waigani: Kirriwom, J
2007: 1 & 5 March
(No.3)
ELECTIONS – National Parliament – By- Election – Bribery by successful candidate – Essential to prove corrupt intent when making payment of cash or promise to pay – Essential to prove corrupt intent in connection with inducing or influencing votes from the voters – Criminal Code, s103 and Organic Law on National and Local Level Government Elections, s215(1),(3) and s217
Cases cited
Papua New Guinea Cases
Bourne v. Voeto [1977] PNGLR 298
Kavieng Open Electorate Ben Micah v. Ian Ling Stuckey [1997] N1790
Maino v. Avei [2004] Unreported National Court Judgment N2523.
Agonia v Karo [1992] PNGLR 463 N1115
Genia v Temu & Another [2003] Unreported National Court Judgment (5 March 2003)
Pokawin v Jumokot [2003] Unreported National Court Judgment (3 January 2003)
Michael Mel v William Ekip Wii and the Electoral Commission [1993] Unreported National Court Judgment N1178 (20 October 1993)
Palme v Mel [1989] Unreported National Court Judgment N808 (20 December 1989)
Re Komo-Magarima Open Parliamentary Election – Kaiabe v Makiba [1989] Unreported National Court Judgment N723 (5 June 1989)
Overseas Cases
Tatireta v Tong [2003] KIHC 1; [2003] 5 LRC 665 (High Court of Kiribati)(www.paclii.org)
Counsel:
P Parkop, for himself
A Jerewai, for First Respondent
R Williams, for Second and Third Respondent
DECISION
5 March, 2007
1. KIRRIWOM, J: This is the petition of Powes Parkop, a losing candidate in the recent by-election of the National Capital District Regional Seat, hereafter the Petitioner, following the death of the former Member Honourable Bill Skate, MP who died of hearth-attack on 3 January 2006.
2. The election was held between 11 May 2006 with the issuance of Writ for the By-Election and 22 July 2006 when polling ended and the scrutiny of votes began in which the First Respondent came out the winner with 23,831 votes and the Petitioner came third with 10,520 votes. The First Respondent was declared the winner on 1 August, 2006.
"(a) A declaration or finding that the First Respondent was not lawfully or duly elected as the Member for the National Capital District Regional Seat.
(b) An order that the declaration of the First Respondent as duly elected Member for the National Capital District Regional Seat is null and void,
(c) An order pursuant to section 104 of the Criminal Code that the First Respondent be barred from holding any public office, including the office of the Regional Member for National Capital District in the National Parliament for the next three (3) years.
(d) An order that the Petitioner be declared as the duly elected Member of Parliament for the National Capital District Regional Seat given that the First runner up Candidate, Ms. Janet Sape has failed to challenge the declaration and election of the First Respondent and that there will be insufficient time to conduct a by election before the writs for the General Election are issued."
7. The Court then proceeded to hear arguments on this issue of relief. On 19 February, 2007 the Court handed down its ruling and what is significant to note from that decision is that a by-election is not one of those relief that is provided for under s212 OLNLLGE. By-election is provided for by the Constitution and it operates independently of s212 OLNLLGE even without the Court ordering its happening should a vacancy arises as here in this case. What is also significant to note from that decision is that once an election is declared void and a candidate returned as elected is declared not duly elected, the Court cannot declare any other candidate who took part in the election as duly elected in place of the one displaced on grounds of bribery. The law does not empower the court to replace the majority choice of the people chosen through what ought to have been free and fair election with its own choice. And finally, what is significant in that decision is that Court of Disputed Returns is only empowered to deal with disputed elections and results and the relief it is empowered to grant are in s212 OLNLLGE. It cannot go outside these powers and invoke criminal sanctions which are only available to the court exercising criminal jurisdiction applying different standard and observing different rules of court in the conduct of the case. As the consequence of these findings, the Court made these orders:
(a) The court can order a by-election where the election is declared void but not in this instance where by-election was specifically prohibited under s. 106(a) Constitution because the vacancy arises within the 12 months of the fifth anniversary of the return of the writs for the last General Elections.
(b) The Court can declare the election void and declare the First Respondent not duly elected without more if it found one or more of the grounds in the petition proven.
(c) The Court cannot declare the Petitioner or any other losing candidate as duly elected.
(d) The Court cannot bar the First Respondent from holding any elective public office if found to have been guilty of bribery during the elections under section 104 of the Criminal Code as that power is not available to a Court of disputed Returns under Division 1 – Disputed Elections and Returns of PART XVIII DISPUTED ELECTIONS, RETURNS, ETC. of the Organic Law on National and Local level Government Elections.
This issue now having been clarified, the only remaining relief that the Petitioner is entitled to if he succeeds in his petition are:
THE TRIAL
9. The First Respondent also gave evidence in person and tendered his own affidavit sworn 18 October, 2006 for purpose of this proceeding. He too was cross-examined strongly by the Petitioner. I will return to his evidence later in the judgment. But he called no witnesses although the court was led to believe that he obtained sworn affidavits from most of his campaign officials allegedly implicated in the allegations raised, a tactical and deliberate choice by the First Respondent’s counsel thereby drawing criticism from the Petitioner during his final address. I was urged to hold against the First Respondent for his failure to call his witnesses. I will return to this topic later in the judgement.
GROUNDS
10. Except for the ground that was dismissed or withdrawn prior to the petition proceeding to trial, all the remaining grounds that came before me survived the competency challenge. I set out below the grounds of the petition.
1. Ground 9.1(a)
"(a) On the 4th of July 2006 at around 4.00 pm in the afternoon, after the issuance of the Writs for the By election for the Regional Seat for National Capital District, the First Respondent did give an amount fo K20,000 in cheque to electors at Vanagi Settlement, Badili, including one Steven Haro, an elector, Noel Tony, an electora, Biliso Osake also an elector with the intended purpose of influencing Mr. Steven Haro, mr. Noel tony, Biliso Osake and other electors who are residents of the said Vanagi Settlement into voting for the First Respondent during a rally held at the said settlement. The cheque was received on behalf of the members of the Vanagi Community by the said Steven Haro, a community leader of the said vanagi Settlement who subsequently had the cheque of K20,000 cashed and with the knowledge and authority of the First Respondent, distributed the amount to electors in Vanagi Settlement on the 7th of July 2006, including Hetape Pepe and his family; Eddie Makara, an elector and his family, in the presence of Biliso Osake, an elector and his family. The whole purpose of the giving of the cheque and the payment of cash after the cheque was cashed was to induce the said electors and other electors in the Vanagi Settlement, Badili into voting for the First Respondent in the By Election contrary to s. 103 of the Criminal Code and s. 215 of the Organic law on National and Local Level government Election.
2. Ground 9.1(b)
(b) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election, on Saturday the 24th of June 2006 at about 11.30 am after the issuance of the Writs for the By election for the Regional Seat for National Capital district, the First Respondent did give an amount of K40,000 in cheque to electors at Kaugere Settlement in the National Capital District, including one Allan Omaro, an electora, Mathias Mulupe, an adault, Jonah Kamura, an electora and Minara Tumai, also an elector with the intention to influence Mr. Allan Omaro, Mathias Mulupe, Jonah Kamura, Minara Tumai and other electors at Kaugere to vote for the First Respondent in the By-Election or to influence electors in the Kaugere are of National Capital District into voting for the First Respondent in the said by-Election. The said cheque was received on behalf of the electors of kaugere settlement by said Mr. allan Omaro, an elector who later had the cheque cashed and with the knowledge and authority of the First Respondent, distributed the said money to other electors in the said settlement, including one Minara Tumai, also an elector who receives an amount of K1,000.
3. Ground 9.1(c)
(c) On the 24th of June 2006 between 4.00 pm to 6.00 pm at the University field at the Back of Institute of Public Administration and near the Catholic Church at Waigani, National Capital district, well after the issuance of the Writs for the By election for the Regional Seat for National Capital district, the First Respondent did promise to give an amount of K50,000 to electors at the said rally, including Emanuel Mulupe as a means of inducing the said electors to vote for the First Respondent at the By Election contrary to s. 103 of the Criminal Code and s. 215 of the Organic law on National and Local Level Government Elections.
Four (4) days later on the 29th of June 2006, Mr. Joe Foxy, a Campaign Official and an agent of the First Respondent went to the First Respondent and collected the money promised by the First Respondent and distributed the same to electors at the Waigani Church area with the knowledge and authority of the First Respondent, including Emmanuel Mulupe who received K220 together with his family. Prior to giving the K220 to the elector, Emmanuel Mulupe and his family, Mr. Joe Foxxy told the elector that if he did not give his first preference vote to the First Respondent in the By-Election, he will have to refund the K220. thereby confirm the intention of the First Respondent when giving the cheque of K50,000.
4. Ground 9.1(d)
(d) On Sunday the 11th of June 2006, after the issue of the Writs of the By Election for Regional Seat for National Capital District, the First Respondent herein at a rally held on his behalf at Kukipi Block, Nine Mile settlement did induced electors at the said Kukipi Block, including Kakare Lare and Joe Kairu, to vote for him at the said by election by promising to give electors there an amount of K40,000 contrary to s. 103 of the Criminal code and s. 215 of the Organic law on National and Local Level Government Election. The electors who were present at the said rally at Kukipi Block 9 Mile, National Capital district include Mr. Kakare Lare and Mr. Joe Kairu.
The intention of the First Respondent was confirmed later when on the 25th of June 2006 between 1.30 to 2.00 pm Mr. Joe Oakiva a campaign official and agent of the First Respondent together with a female representative of the First Respondent went up to the same Kukipi Block at Nine Mile, under police escort and paid the K40,000 to the electors and members of the Kukipi Block at 9 Mile, NCD generally with the knowledge and authority of the First Respondent. The amount of K40,000 as promised by the First Respondent was paid out and received as follows, except for an amount of K4,000:
5. Ground 9.1(e)
(e) On Wednesday the 21st of June, 2006 at around 8.00 pm, after the issuance of the Writs for the By-election for the Regional Seat for National Capital District, the First Respondent did promise to give an amount of K10,000 to electors and other adult person at Nine Mile Settlement in the National Capital District with the intended purpose of influencing them into voting for the First Respondent and with the intention to cause other persons present to influence electors at the 9 mile settlement into voting for the First Respondent in the said by election contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election. Those other adult person present included Mr. Rex Kope and Mr. Timon Porawi, who are adult residents of 9 Mile settlement, National Capital District. The intention of the First Respondent was apparent when the First Respondent announced at the said rally that he would given the electors there an amount of K10,000 to distribute among themselves and that they should give their first preference to him in the election.
6. Ground 9.1(f)
(f) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election, the First Respondent did promise to give an amount of K30,000 to electors at Tete Settlement during a rally held at the said settlement on the 12th of June 2006. The promise of payment of K30,000 was intended to influence electors to vote for the First Respondent, including Kipi Charlie, and elector because when making the promise the First Respondent encouraged the electors assembled at the rally including Kipi Charlie to given their first preference vote to the First Respondent.
About two weeks later on Monday the 26th of June, 2006 after making the promise, some of the First Respondent campaign officials including Mr. Russle Warvik went to Tete Settlement and paid out the K30,000 in cash to the electors at the said settlement, with the knowledge and authority of the First Respondent, thus confirming the intention of the First Respondent to influencing the electors at Tete into voting for him at the said By election.
7. Ground 9.1(g)
(g) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on national and Local level Government election, the Prime Minister, Grand Chief Sir Michael Somare when campaigning for the First Respondent and with the knowledge and authority of the First Respondent, at a campaigns rally held at Unagi oval for people originating for Hela Region in the southern Highlands Province residing in the National Capital District on the Saturday 1st day of July 2006 did promised the electors and people at that rally that if they voted for the First Respondent at the said By-Election or support the election of the First Respondent, his government would grant to the people of Hela a Province of their own and that his Government would amend the national Capital District Commission Act to make the First Respondent the Governor of the National Capital District.
The said promises were intended to influence or induce electors and others attending the said rally into voting for the First Respondent given that the person making the promise was the Prime Minister and that the promise was made even though the Prime Minister Grand Chief Sir Michale Somare knew or ought to know that the promises could not be delivered or was unrealistic but made the promise anyway knowing that electors and others at the rally would rely on it as it was being made in his capacity as the Prime Minister and that the First Respondent was the Candidate endorse by his party, the National Alliance Party in the said By Election.
The Petitioner says that the promise was unrealistic or otherwise false in that the Prime Minister knew that the decision whether to grant or not to grant Hela Province had been delayed to the Parliament elected after the 2007 National election as it was never part of the recommendation of the National Boundaries Commission Report that the Parliament had rejected early in 2006 and deferred any further discussion and decision on it to the Parliament elected after the 2007 Election."
11. I perceive the issues before the Court to be generally as follows:
(1) Did the First Respondent give or promise to give cash or other benefits to the voters during his election rallies while campaigning for the NCD Regional Seat By-Election in order to induce voters to cast their votes for him contrary to s103(a) and (d) of the Criminal Code and s215(1) and (3)(a) OLNLLGE?
(2) If the answer is yes, was anyone induced or influenced by the cash payment received or the promise of cash or other benefits and did not freely exercise his right of free franchise but felt compelled to vote for the First Respondent in the said By-Election for NCD Regional Seat?
(3) Did the First Respondent instruct or authorize his campaign officials to pay cash or make promises of payment of cash or other benefits to people including voters in NCD to endeavour to procure voters or to vote for the First Respondent in the By-Election in the NCD Regional Seat?
THE LAW
12. The issue or issues in this trial stem directly from the way the section tries to explain what amounts to bribery under section 103 of the Criminal Code. While section 103(a) appears to encapsulate different circumstances where bribery could arise in an election, equally applicable is s.103(d) which reinforces the element of intent like in all criminal cases. It is imperative therefore that I set out in full Section 103 which reads as follows:
"A person who—
(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—
(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii) on account of any person acting or joining in a procession during an election; or
(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or
(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or
(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,
is guilty of a misdemeanour."
13. What is bribery is not defined although the Criminal Code creates the offence of bribery in the context of elections in the same general part where the Code deals with corrupt and improper practices at elections and offences against administration of law and justice. The question of what acts or omissions amounted to bribery as envisaged in the Code has been left quite at large where different circumstances, times and setting have procured different meanings. There has been not one consistent pattern of thought and application of the law on bribery. However what has been consistently applied to date is the element of intent which is necessary in any act alleged to constitute bribery and for that matter undue influence. This is clearly borne out in the case of Agonia v Karo [1992] PNGLR 463, N1115; where Sheehan, J (as he then was) said:
"It is well recognised that petitioning on a ground of bribery or attempted bribery against a successful candidate is, in fact, a charge that the election should be overturned because a criminal offence has been committed. It is equally well known that the proof of only one such offence by a successful candidate is sufficient to invalidate an election. This applies even in respect of an unsuccessful attempt at bribery.
But a petition on such a ground is a serious challenge to the electoral process and the rights of the people to elect their representative. An allegation of bribery by the successful candidate is a charge of a criminal offence. Apart from the direct penalty that may be imposed upon conviction of such a charge, there are consequential penalties set out in s 104 of the Criminal Code suspending constitutional rights of taking part in the electoral process, as an elector or candidate for parliamentary elections. Such charges, therefore, must be pleaded with clarity and definition. Again, because of the seriousness of such allegations.
It is not surprising that the standard of proof required in an election petition is, to all intents and purposes, the same as in a criminal court (see Bourne v Voeto [1977] PNGLR 298 at p 302). It was established in that case that, where the ground relied on is undue influence, it is necessary to prove undue influence as it is constituted by the Criminal Code. The offence of bribery must, likewise, be proved.
What then are the elements that constitute the offence of bribery. As Mr Lash has said, s 103 of the Criminal Code is a large and extensive section, incorporating a range of corrupt practices of unlawful inducement, which in the several circumstances set out in the section, may make out the charge of bribery. .....
Without analysing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector - defined as any person entitled to vote at any election - or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.
It is also clear that there is in s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements on "account of", or "in order to induce", or "with the intent that", are all phrases that show that the purpose of offering the inducement is an element of the offence."
14. At p. His Honour went further and said:
"It is not enough simply to state a set of circumstances that may or may not have criminal implications and, without any specific assertion of fact to rely on by the Court, assuming the wrongful implication that may be drawn as a basis of a petition. A petitioner cannot simply say a respondent bribed a church group, for example, because he gave them money. He must state facts as to why the gift was a bribe. And in election petitions, that bribery has to be linked to an unlawful interference with the electoral process."
15. Sheehan J in Agonia v Karo (supra) was dealing with objection to competency of a petition founded largely on bribery and undue influence on the petition of First Respondent as losing candidate. However, in instances where the petitions actually went to trial on the grounds of bribery and undue influence the results have varied from case to case. In Genia v Temu & Another [2003] Unreported National Court Judgment (5 March 2003) presenting an ambulance to a health centre by the First Respondent as former Health Secretary with eyes fixed on forthcoming elections was held to amount to bribery and the election was declared void. The court was referred in that case to Pokawin v Jumokot [2003] Unreported National Court Judgment (3 January 2003) where a government cheque paid to a school during the election period was held not to amount to bribery because an institution cannot be bribed except individual persons. The trial judge chose to look beyond the veil of the institution as it were and expose those human faces behind that institution who could be bribed by the First Respondent’s public act of donating the ambulance that was long awaited.
16. In Michael Mel v William Ekip Wii and the Electoral Commission [1993] Unreported National Court Judgement N1178 (20 October 1993) the court found bribery against the First Respondent where he wrote and paid out valueless cheques to people and urged them to vote for him. Some of these cheques were tendered as evidence in court where the only issue was that the signatures on the cheques were forged, not his. Based on other evidence the court disbelieved him and found bribery proved and declared the election void. Woods J (as he then was) said:
"The main issue in the case is the cheques and how they were handed over to the recipients. They definitely exist, confirmed by the evidence of the Petitioner's witnesses, by the evidence of the bank officer, and even the First Respondent admits to their existence. The credibility of some of the First Respondent's witnesses is definitely reduced by their feigning no knowledge of these cheques, cheques which must have caused some conversation in the electorate after the election. So the various versions of who was picked up when in the bus on that day is not really of concern, I would not expect everybody to recall with certainty the events of that day when on the day itself there may have been no real reason to have ever realised that the sequence of events was going to become important later. There is no difficulty with the gathering in the park later that day only the denials concerning the cheques. The confusion over John Kumba and Johnathon Kumba was never satisfactorily explained by the attendance ofeither of them as witnesses.
The Petitioner's witnesses were quite clear about the cheques, they were even able to produce some of them. They said that the cheques did influence them to vote for the First Respondent and to persuade their families and relatives to so vote and there is only the surmise of the First Respondent's witnesses without any real concrete evidence that they were already supporters of the First Respondent. There is no such thing as paid up party members lists here to support these assumptions.
The evidence is overwhelming as to the First Respondent's signatures on those cheques. That issue was obviously going to be the central issue in the case and it was therefore vital for the First Respondent to refute that from the very beginning of his case. He made no attempt to do that. It was always open to him to bring a document examiner or such like expert. However the signatures were such that the bank officer himself had no hesitation in agreeing that they were the First Respondent's signatures. Even to a layman the signatures look perfect. So I am satisfied beyond all doubt that the First Respondent did sign those cheques. It is submitted that the First Respondent may not have physically himself handed out the cheques in the park on 15 June but it was done by the person referred to as Johnathon or John Kumba. Who actually physically handed the cheques over at the time is not critical, the First Respondent and the Mr Kumba were together acting in concert so it was the same thing.
The handing over of cheques in this manner, especially post-dated cheques clearly comes within the committing or attempting to commit bribery or undue influence under S. 215 (1) of the Organic Law. It was clearly the giving of money in order to induce voters to vote a certain way. There is no need for me to quote the statements of the elements of bribery S. 103 of the Criminal Code as in the other cases such as Agonia v Karo Unreported N1115. The handing over of the cheques in the manner done according to the evidence clearly comes within these statements. There is no firm evidence that the recipients of the cheques were already firmly committed supporters of the First Respondent, as I have said there were no lists of fully paid up party members. The witnesses indicated quite clearly that they were prepared to vote for the person who gave them the cheques, they felt a sense of obligation. Any right thinking citizen in a free election situation must only be horrified at the creation of a bank account jus before an election and the handing out of post-dated cheques to voters. I have not been asked to consider the implication of the offence of writing out and handing over cheques knowing that they would not be met on presentation. Such a situation cannot be tolerated in a democratic society which respects the dignity of the individual and requires all citizens to participate freely without any untoward coercion in the government of the Nation. Instead the recipients of the cheques were made to feel obliged to the person who handed them the cheques and their freedom of choice was taken away. These cheques were very different from the coffee pulpers in the case Palme v Mel 1987 N808 where they were given to support a business situation which was clearly acknowledged by one of the recipients there who accepted a coffee pulper for the business reasons but still exercised his freedom of choice and voted for someone else.
Here the cheques were handed out with the proviso that the recipients had to vote for the First Respondent. The recipients were given the cheques on consideration of giving their votes to the First Respondent. That clearly satisfies the requirements in S. 103 of the Criminal Code for bribery. It does not matter who actually opened the bank account because I am satisfied that the First Respondent was a party to the handing over of the cheques to the witnesses, to Jeffrey Amtie at his block and to the others at the gathering in the park. I am satisfied that such amounts to bribery and undue influence under S. 215 of the Organic Law. Whether William Kulda was an eligible voter or not does not affect the situation as the cheques to the others is sufficient."
17. Palme v Mel [1989] Unreported National Court Judgment N808 (20 December 1989) is another case on point which has set precedent in cases of allegations involving bribery and undue influence. The petitioner petitioned the court for the result of Anglimp South Whagi Open Electorate to be declared void on the grounds of bribery where he alleged the First Respondent was guilty of when he donated or gave coffee pulpers to growers and his supporters and helped another with cash who wanted to buy a second hand car. The First Respondent was a businessman involved in coffee-buying at the time of these allegations when he stood for elections and the court held that there can be no bribery if the Petitioner could not strictly prove the corrupt or unlawful intent to induce another. Woods J (as he then was) said:
"With respect to allegation 4: (v) which alleges a gift of K100 to Pikip Kerowa to induce him to vote for the First Respondent the witnesses for this allegation gave a story of a clansman being jailed so Michael Mel gave K100 to a relative to bail the clansman out because the relatives were worried and were asking for the money. Mr Mel disputes this evidence although he does recall an incident which appears to be the same incident where he was with the President of the ANGLIMP Council and a request was made by somebody for money to bail a relative out of jail and he recalls he did not have the money to lend and the President of the ANGLIMP Council gave the money to the person who asked for it. I find that there is no evidence to suggest any bribery here and it would appear anyway that the First Respondent did not himself give the money and there was no suggestion of this money being given to induce someone to vote for the Respondent. It was only in answer to a request for a need at the time. I therefore find this does not involve the offence of bribery by the First Respondent.
Allegation 4: (vi) alleges that the First Respondent gave a coffee pulper to Maime Onom and this was done to induce him and for him to induce other people to vote for the First Respondent. However, there is some conflict in this evidence such that I am not sure what happened. The evidence of the witnesses who support this allegation appears to conflict as to who actually gave the coffee pulper to Maime Onom and he himself did not give any evidence to support this matter. One witness says that Mr Mel gave the coffee pulper while the other witness says that he himself brought the pulper. On the other hand the First Respondent does not deny giving a Coffee pulper to Maime Onom but says it was in answer to a request to support the village coffee production. At the time the First Respondent was in the business of coffee buying and felt that any way in which he could support people in their production of good saleable coffee was going to help them and also help him in his business. I therefore find this was not give to him to induce a person to vote for the Respondent but it was given purely for business support.
Allegation 4: (ix) alleges that the First Respondent gave a coffee pulper to Kila Knan as a form of bribery to induce him to vote for the First Respondent. Kila Knan himself gave evidence about receiving the coffee pulper although there is a discrepancy in the evidence as to exactly how he received the pulper whether from Mr Mel personally or from another person called Peter Konspil. In his evidence Mr Kila Knan states he was on a committee to work for the election of Michael Mel. The question therefore must be, is it bribery to give something to a person who is already a committed supporter of the candidate. Kila Knan gave evidence that he hosted Michael Mel with food and was a committed supporter. Mr Mel was a businessman in the coffee business and was keen to support village coffee to help his coffee buying enterprises.
Bribery suggests something under hand and sinister but there can be nothing sinister or under hand by assisting a supporter or a committee man to do his job. There was no threats or offers to give in exchange for votes. I compare this fact situation with the facts in the case of Thompson v Pokasui August 1989 where the court found the candidate clearly misused his position to hand out cheques to people as part of his election campaign thereby suggesting he had some influence in the raising and handing out of these cheques. And the candidate had actually done this after it had been made clear that such handling of cheques should only be done by Department of Defence officials as the cheques themselves came from the Department of Defence and had nothing to do with the candidate. The evidence clearly suggests that the handing out of the cheques and what was said at the time did influence the voters as it was suggested that it was the candidate who had arranged for the cheques for the recipients and possibly even could arrange for further cheques. However, in the case before me now the recipient of the coffee pulper was already a supporter of Michael Mel so much so that he was on Mr Mel's campaign committee so there can be no concept of offering him an inducement to persuade a person to vote a certain way when he was clearly a supporter already and was going to vote in favour of the candidate. In the circumstances I find that there can be no suggestion of bribery or undue influence here.
Allegation 4: (xiv) alleges that the First Respondent gave cash, the sum of K2,700, to Wapi Ondi to bribe voters. A number of witnesses gave evidence of this being done in 1987 at an office in Mount Hagen. One witness said he was in the office when the money was given for coffee machines and talks of K250 being handed out to a number of people. However, it is clear from the evidence of the First Respondent and one of his witnesses that the building and office referred to had been demolished well before April 1987 actually in about November 1986. And further, the First Respondent does recall meeting Wapi Ondi in or about September 1986 when Wapi Ondi had asked for some money to buy a second hand car. Mr Mel states that he handed out K2,700 to Mr Ondi for that purpose. I therefore can find no suggestion in the evidence that this was bribery or undue influence in connection with the election of the First Respondent."
18. In Re Komo-Magarima Open Parliamentary Election – Kaiabe v Makiba [1989] Unreported National Court Judgement N723 (5 June 1989) Amet, J (as he then was) held that it does not amount to bribery for a sitting member of Parliament to deliver government cheques to his constituents during election period if such could not be avoided. His Honour said:
"I propose to deal with the issues of facts relating to these grounds and then refer to the principles of law and apply them as might be necessary and relevant. I propose to deal with the three grounds relating to the use of NDF cheques first.
GROUNDS 2A, 2C AND 2D
I am satisfied that these cheques were paid out by the Respondent to bona-fide church and local business groups upon their request for financial help to the Respondent as the sitting Member of Parliament. That of course is a legitimate government function. The Petitioner had taken issue with the timing of the payments by the Respondent and the manner in which he made the payments, using them as electioneering tools unfairly. For the same reasons I expressed in dismissing similar allegations in M.P. 96 of 1987 in the petition of Brian Campbell -v- Arnold Marsipal in the Manus Provincial Electorate I dismiss these three grounds, as not being sustained. I cannot be entirely satisfied that the Respondent 'unduly influenced' or 'bribed' any of the voters, the recipients and beneficiaries of the cheques. I consider it morally and ethically wrong but I cannot attach an almost criminal consequence of undue influence to the practice. I do consider however that if a sitting M.P. did receive the cheques in plenty of time but simply kept them to use for electioneering purposes, it may amount to undue influence or bribery.
GROUND 5.
In relation to this ground, as I indicated to lawyers in their final addresses, even if the truth were as the Petitioner has alleged I could not find that that amounted to undue influence or bribery, for the simple reason that it is a perfectly legitimate electioneering practice for a candidate to give money to campaign managers and their teams to campaign for him. This ground is therefore dismissed."
19. This petition will be judged in accordance with the principles developed in the last three decades and which everyone is familiar with. The Petitioner contends that his petition is founded on bribery by the First Respondent and not undue influence. He submits that of the seven grounds he relied upon, the majority are based on the promises that the First Respondent made in those places he visited and spoke to the voters or other persons, promising payment of sums of money or other benefits and two of the grounds related to actual payments of money in cash and cheque. For this reason I will deal with each ground separately bearing in mind that only one act of bribery proven to the entire satisfaction of the Court according to the standard set out in Bourne v. Voeto [1977] PNGLR 298 is sufficient to invalidate an election result.
20. Bribery as a serious electoral offence and sufficient in itself to nullify an entire election as stipulated in sections 215 and 212 of the Organic Law is not clearly defined. The Organic Law does not say what act or omission amounts to bribery and what does not. Attempts have been made in other jurisdictions with similar election laws like ours especially sections 212 and 215 OLNLLGE to particularize and define what acts or omissions are or are not capable of amounting to bribery for purposes of fair just and consistent administration and enforcement of election laws by the Court. And the perplexity of the situation has been illustrated in the summary of those cases cited which show the current trend or development in the law in this area. It makes an interesting scenario in the wake of rising issues of all forms of corruption eating into the fabric of the society as judged from public perspective.
21. Bribery as an electoral offence is created under PART II – OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE AND AGAINST PUBLIC AUTHORITY of the Criminal Code and in particular Division 3 – Corrupt and Improper Practices at Elections. Division 1 relates to Disclosing Official Secrets and Division 2 – Corruption and Abuse of Office such as Official corruption, Extortion by Public Officers, Abuse of office, Bribery of a member of Public Service, etc. Divisions 4 and 5 relate to Selling and Trafficking of offices and offences relating to the Administration of Justice such as judicial corruption, perjury, etc.
22. Division 3 creates offences relating to elections and conduct of elections amongst which include personation, double-voting, treating, undue influence, bribery, stuffing ballot-boxes, interfering with secrecy at elections, etc.
23. Only bribery and undue influence are offences that the Organic Law (OLNLLGE) incorporated under Part XVII – Disputed Elections, Returns, etc as being capable of nullifying an election if proven to have been committed by a successful candidate or by another with his knowledge and authority. This is stated in section 215(1) and (3) of OLNLLGE. The section provides as follows:
"215. Voiding election for illegal practices.
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority;
or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."
24. The relevant part of this law upon which the Petitioner has founded his petition is s. 103 (a)(iii) which reads as follows –
‘A person who gives or promises to give to any person any property or benefit of any kind (iii) in order to induce any person to endeavour to procure the return of any person at an election or the vote of an elector at an election, is guilty of a misdemeanour.’
25. Applying this to the present case as far as the petitioner is concerned, it is the First Respondent in person he alleges who either gave or promised to give to the people whom he addressed in his rallies money or other benefit in order to induce those people gathered and listened to him to procure the return of himself at the election or the vote of an elector who was present and listened to him at the election.
26. Giving a literal meaning to this analysis of the section, in order for the petition to succeed, the Petitioner must show that the First Respondent gave or promised to give money or other benefit to a person in order to induce that person to endeavour to procure his return at the election or the vote of an elector at the election. The break-up of this analysis creates two distinct situations. The first is that it is the First Respondent in person who gives or promises to give to a person money or other benefit in order to induce that person to procure his return in the election. The second situation is that it is the First Respondent in person who gives or promises to give to a person money or other benefit in order to procure the vote of an elector at the election. (Emphasis is mine).
27. In the case at hand, as I understand the Petitioner, he is relying on the first limb where he complains that the First Respondent in person gave or promised to give money or other benefit to groups of people instead of named individuals (to have and enjoy and) to endeavour to procure his return at the election. In other words the First Respondent in person gave or promised to give money or other benefit to those unnamed persons gathered so they in turn endeavoured to procure his return at the election. It is not specified by law what those persons were to do in order to procure his return at the election, it could mean solicit support for him amongst the electors eligible to vote in the election or, if they were electors themselves, to vote for the First Respondent.
28. Therefore, in first situation, a person allegedly bribed need not necessarily have to be an elector he can be anybody who is not an elector but can influence an elector to vote for the First Respondent. In the second situation, the section clearly applies to an elector.
29. However, if I understand the First Respondent correctly, he is saying that there is a third scenario where the Petitioner is relying on acts or omissions of other persons acting on behalf of the First Respondent as envisaged in s.215(3)(a) OLNLLGE where the Petitioner alleges that other persons acting on behalf of the First Respondent, with his knowledge or authority paid out monies to people or potential voters with the intention to induce them to vote for the First Respondent. It was argued that for the Petitioner to rely on that since he actually pleaded them in his grounds of petition, he ought to have gone further to plead that the result of the election was affected or likely to be affected. The argument was validly raised but having allowed the affected grounds to go to trial, the court will now determine whether they survive or not in the light of the evidence now tendered. Be that as it may, the Petitioner is bound by his pleadings.
EVIDENCE
Ground 1 (9.1(a))
30. The petitioner’s first ground, ground 9.1(a) remains unsubstantiated as he called no evidence on it.
Ground 2 (9.1(b))
31. This ground states that on Saturday, 24 June 2006 at about 11.30 am the First Respondent during a rally at Kaugere Settlement give an amount of K40,000 in cheque to those gathered at the rally amongst whom were Allan Omaro, Mathias Mulupe, Jonah Kamera in order to or with the intention of inducing or influencing them and other electors to vote for him in the said by-election.
32. The ground does not stop there but goes further to say that the cheque was received and cashed by the named persons with the others ‘with the knowledge and authority of the First Respondent’ and distributed the money to other electors including one Minara Tumali an elector who was given K1,000 from that money.
33. In my ruling on objection to competency, I said this ground was competent to go to trial. It sufficed to be tested by evidence only on the first paragraph.
34. When translated into the language of section 103 of the Code, the allegation is that at 11.30 am on Saturday 24 June 2006 at Kaugere Settlement the First Respondent gave a cheque of K40,000 to Allan Omaro, Mathias Mulupe, Jonah Kamura and Minara Lumai, all electors, with the intention of influencing them and other electors at Kaugere Settlement into voting for him at the by-election of the vacant seat of NCD Regional. This is clear enough as it is. However, when read with the second paragraph, the Petitioner trying to be as detailed and informative as possible, extended the paragraph by trying to incorporate the requirements of section 215(3) OLNLLGE. In trying to state so much in one ground, the pleading defeats itself in not setting out the date when the cheque was cashed, who cashed it and how many people benefited from its proceeds and when were they given the money and for what purpose they were given or received that money.
35. For these reasons, if paragraph 1 and paragraph 2, from one side of the argument, are inseparable to have the effect envisaged by section 215(1) and (3)(a) combined as argued by the First Respondent, ground 9.1(b) is incompetent. However, I ruled otherwise, which on reflection, I believe I gave a narrow interpretation to section 103 and only in the context of paragraph (a)(i) and (iii) when the First Respondent was addressing the pleading in the context of s.103(a) and (d) in conjunction with s215(3)(a) OLNLLGE. In that context, I would agree with the First Respondent that some of the grounds, if not all those grounds, as pleaded were incompetent. Be that as it may, this was an exercise of discretion that was amenable to correction at any stage of the hearing in this matter, bearing in mind that the issue of competency remains right through till the end of the case.
36. In support of this ground, the Petitioner called one Mathias Mulupe who gave sworn testimony and his affidavit was tendered into evidence and marked as Exhibit ‘T’. This witness is said to be an elector in the petition as pleaded but according to the Common Roll kept by the Electoral Commission of PNG, he is not an elector as his name does not appear in the Roll although he had been resident in Kaugere/Badili areas for some two years prior to the 2006 By-Election for the NCD Regional Seat. Notwithstanding that he is not an elector, no objection was raised in relation to him giving evidence because it is generally accepted that a witness in an election petition that alleges bribery and undue influence need not have to be an elector to testify.
37. The witness is originally from Koroba in the Southern Highlands Province but lived at Rabia Camp Kaugere settlement for one year and then moved to Badili where he resided for two years with his family prior to this by-election. He was present at the rally at Kaugere on Saturday 24 June 2006 about 11.00 am when the First Respondent spoke to the people gathered there. He heard the First Respondent say words to the effect in tok pisin:
‘Mi save long brukim firewood and salim long kisim moni na nau mi kamap millionaire. So mi save long wokim bisinis so as soon as me go long Parliament, mi bai changim Kaugere. Mi bai putim pawa saplai na wara saplai taim mi kamap long Parliament. Mi Wari Vele, mi wari long yu. So K40,000 ya ikam long Wari Vele Agencies bilong developim Kaugere Settlement so check mipela wokim igo long Kaugere Development Association Incorporation.’
38. The witness said after saying this the First Respondent gave the cheque to Allan Omaro in the presence of other leader of Kaugere. Three weeks later he learnt from one Minora Tumai that he received K1,000 which he believed was from that cheque.
39. This witness’s affidavit in paragraphs 16 – 17 went further to depose to other payment of K17,000 to another group and other donations reported in the National and Post Courier newspapers which were of no relevance in establishing the allegation contained in ground 9.1(b).
40. I reject paragraphs 11, 12, 14, 15-17 of the witnesses statements/evidence in the affidavit as either drawing conclusions or expressing personal opinions or are simply hearsay and therefore unreliable.
41. The First Respondent denied making this cheque payment. The Petitioner called no other evidence in support of this ground.
42. There are material defects in the only evidence tendered in support of this ground. First the evidence is quite vague and of poor quality in that it is uncorroborated and inconclusive. I will explain in detail shortly what I mean by inclusive.
43. The vagueness of this evidence stems from the fact that the witness has selected a part of the First Respondent’s speech at the rally and tried to combine it with some kind of a cash/cheque allegedly made by the First Respondent to make it appear as unlawful or corrupt in his own imagination of it. The speech itself as quoted without reference to K40,000 is a valid expression of free speech that the First Respondent, like every other candidate in the election, is entitled to make. The law assumes a mature voting population to make a more informed and wise judgment in the selection of leaders at the polls from the wide and varying array of contestants from many different backgrounds, constitution and composition. I find nothing offensive in the statement itself to amount to an electoral offence of bribery, let alone undue influence which is not relied upon here.
44. In so far as the allegation of payment of K40,000 in cheque is concerned, this ground is self-defeating in that the evidence given by the witness both orally and in paragraph 9 of his affidavit are inconsistent with the pleading in the petition. The evidence relates to payment of cheque to Kaugere Development Association Incorporation whereas the petition states that the cheque was paid to named people. There is no real proof of the payment of this cheque, its receipt, how it was handled right through to the finishing line to show whether such a cheque really exists. The evidence is incomplete and left hanging, begging for an end.
45. I am not impressed by the demeanour of the witness at all. He had big imagination but he failed to substantiate it by credible evidence. His story therefore lacks credence and I do not accept his testimony nor his affidavit as far as proving this ground is concerned.
46. This ground suffers one of the most common defects where evidence fails to measure up or discusses totally different scenario altogether to what is contained in the petition such as in re: Kavieng Open Electorate Ben Micah v. Ian Ling Stuckey [1997] N1790. There was no evidence of payment of K40,000.00, no cheque was produced, even if paid, it was made out to a group and not to individuals and its intention or purpose is unclear. It is not enough to plead in the petition that ‘it was paid with the intention to induce or influence’ and leave it at that without calling evidence to prove that intent.
Ground 3 (9.1(c)).
47. This ground states that on 24 June 2006 at the University Field behind Institute of Public Administration near Waigani Catholic Church between 4 pm and 6 pm the First Respondent promised to pay K50,000.00 to Emmanuel Mulupe and electors gathered at that rally in order to induce them to vote for him in the by-election for NCD Regional Seat.
48. If the Petitioner was simply relying on such a promise made for purpose of inducing the voters to vote for him, the petitioner needed to prove not only the element of inducement but he must go further to prove that as the result of such inducement, there was no free exercise of franchise. In other words the entire voting was not fair, it was all corrupt and it was not a fair election at all.
49. The Petitioner however further extended his ground for petition by stating how the First Respondent through other persons, namely his campaign manager for that area one Joe Foxxy who returned to Waigani four days later and paid K220 to Emanuel Mulupe and his family and further asserting that this money was part of the K50,000 promised by the First Respondent to the people of Waigani area.
50. This extended paragraph is again the Petitioner’s idea of mixing evidence with facts necessary to make out a case under section 215(3) OLNLLGE as he did with other grounds.
51. Once again, if this extended paragraph is taken inseparably with the first paragraph, as argued by the First Respondent, the ground simply cannot stand for being ambiguous, incoherent and therefore incompetent. However, in order to do justice to the Petitioner, I disregarded the extended paragraph and allowed the ground to proceed to trial.
52. The Petitioner called two witnesses in respect of this ground. They were Emmanuel Mulupe who was named in the petition and James Talurai. Both witnesses also deposed to affidavits which were tendered in evidence and marked as Exhibits ‘O’ and ‘P’ respectively.
53. Both witnesses are from Southern Highlands but have been residents of Waigani suburb for sometime prior to and at the time of the 2006 NCD Regional by-election. Emmanuel Mulupe is a young man age 25 years and single and his occupation is unstated while James Talurai is a teacher by profession. They gave much similar evidence in which they heard the First Respondent said in tok pisin the following as translated in English.
"I am the right man with the right mind or ideas and I am worried about you. Do not give your votes to other candidates because you will be wasting your votes and the candidates will not bring you the services you want. If you do not give me your vote, I am not worried and if I lose, I don’t care but I am worried about you. If I lose, I am not worried, I will go back to the Prime Minister and drink coffee with him in his house as I am still with him. I can bring everything from the Prime Minister, if you vote for me."
54. Towards the end of his speech, both witnesses stated that the First Respondent promised them K50,000 and told them to use the money to solve their water and electricity problem.
55. Mr Vele admitted attending the rally organized for him by his Waigani campaign officials and acknowledged some of the statements made but denied ever promising the people there K50,000 as alleged. He said there were complaints raised by the residents there about water and electricity problems and he said he will look into it but did not promise K50,000.
56. The Petitioner argued that this promise of K50,000 manifested itself in the payment of K220 or K50.00 to Anna Harry and Beliti Mara. This is the Petitioner’s own conclusion with this evidence of payment of money to the two women by a campaign official of the First Respondent for whatever reason is unknown but the Petitioner wants the court to accept that as part of the payment of the promised K50,000. I can’t imagine a person of the First Respondent’s standing, wealth and status promising the people K50,000 to help them resolve their water and electricity crisis ends up paying only a mere K50 or K220 instead of the full amount to two women constituent members through a campaign official whose explanation for that payment has not been obtained. For all one knows, it could have been Joe Foxxy’s contribution to the family’s up-keep or for some other reason.
57. The allegation remains far from being proven. The identical nature of the evidence deposed to in the affidavit of the two witnesses raises some suspicion. Emmanuel Mulupe’s oral testimony is inconsistent with what is contained in his affidavit and also stated in the petition. When the petition clearly states himself and family to be recipients of K220, he said the money was paid to two women Harry Anna and Beliti Mara. Making matters worse, his friend James Talari saw Joe Foxxy give K50 to the two women while Emmanuel Mulupe maintained he saw K220.00.
58. I am not prepared to accept on such contradictory evidence of payment of money, be it K220 or K50, that neither of the witnesses is a recipient of, as manifestation of payment of promised K50,000.00. Both witnesses concocted this story out of the First Respondent’s speech at said rally. I am not impressed by their demeanour, they were not telling the truth and I reject their story.
59. This ground has not been made out and must be dismissed. There is no evidence that anyone was influenced by this promise and as the result he did not vote according to his or her own conscience. There is no evidence that four days later Joe Foxxy went to the First Respondent and collected K50,000 and paid the residents of Waigani as promised. If Joe Foxxy was not called by the First Respondent, the Petitioner was obliged to call him or request the First Respondent to make him available for cross-examination by him if he was already a witness for the First Respondent by having given him an affidavit.
Ground 4 (9.1(d)).
60. This ground states that on Sunday 11 June 2006 the First Respondent attended a rally held on his behalf at Kukipi Block, 9-mile settlement and promised the people gathered including Kakare Lare and Joe Kairu a sum of K40,000 in order to induce them to vote for him.
61. The ground further states that the First Respondent’s promise was fulfilled two weeks later on 25 June 2006 when one of the First Respondent’s campaign official Joe Oakiva in the company of a female representative of the First Respondent and under Police escort returned to Kukipi Block between 1.30 and 2.00 p.m with the knowledge and authority of the First Respondent, paid monies to the following:
62. The Petitioner called two witnesses to prove this ground or allegation. They were Kakare Lare and Auari Tora. In addition to their oral testimonies, their sworn affidavits were also tendered as evidence and marked Exhibits ‘M’ and ‘N’ respectively.
63. I was quite impressed by the evidence of Kakare Lare. He is from Gulf Province and had been living in Nine Mile for over 30 years, even stood in the By-Election for Port Moresby North East in 2004 which the First Respondent was also a candidate but both lost to the sitting member, Hon. Caspar Wollom, MP.
64. His evidence supported by Auari Tora was about the First Respondents rally at Nine Mile Kukipi Block on 11 June 2006 in the evening between 6 pm and 9 pm. A number of people spoke at the rally including the First Respondent. Both witnesses say that during the rally the First Respondent promised to pay them K40,000 to use and to vote for him in the by-election. His speech was in Motu and this relevant part of his speech is in English stated:
‘Caspar Wollom gave you K30,000.00. I will given you K10,000 more then what Caspar Wollom gave you meaning K40,000.00 altogether!’
65. Kakare Lare in paragraph 10 of his affidavit said:
‘I knew that Mr. Vele intended to use the promise of K40,000 to influence us including myself as an elector to vote from (sic) him in the by-election for the NCD Regional Seat left vacant by the death of Sir William Skate.’
66. The same sentence also appears in para 11 of Auari Tora’s affidavit. In fact substantial portion of their affidavits commencing from paragraph 5 (Kakare Lare) and paragraph 6 (Auari Tora) right through to the end para 18 (Kakare Lare) and para 19 (Auari Tora) are very similar or the same, so much so that paragraphs 16 (Kakare Lare) and 17 (Auari Tora) are stating their personal opinions as opposed to facts that I discard them. Similarly I discard and reject the two remaining paragraphs in their respective affidavits (paragraphs 17-18 Kakare Lare) and paragraphs 18-19 Auari Tora) together with the annexures as hearsay and irrelevant material or evidence not relevantly supporting the ground in question. The petitioner attempted to bring the same evidence in support of an earlier ground, ground 9.1(b) through the affidavit of Mathias Mulupe which I rejected for the same reason.
67. The similarities in the evidence and the serious discrepancies in the affidavit of Auari Tora especially as regards the falsity of paragraph 4 of his affidavit regarding his educational background and his inconsistent story with that of Kakare Lare regarding the name of the United Church Pastor whose house was the venue for the gathering raises serious questions about the authenticity and reliability of the documents as evidence deposing to the truth of what exactly happened or were said.
68. Both witnesses were strongly cross-examined by Mr. Jerewai for the First Respondent and was put to them that at this rally which the settlers themselves organized and invited the First Respondent to attend and address them, the people expressed their concerns about public utilities lacking in their area such as the road infrastructure and water and power. The First Respondent promised to look into them and assist them where possible.
69. The Respondent on the other hand denied personally making any payment of the amount alleged by the Petitioner but said that if his committee of men made some payments in response to those appeals he would have no idea because he had entrusted his campaign and any expenses associated with his election upon his campaign officials headed by his wife.
70. The Petitioner went on to list names of nine groups who subsequently received monies from an official representing the First Respondent for a total sum of K36,000 paid out to the named groups under Police escort. Evidence of payments made are not corroborated by any independent source from the two witnesses whom I find to have cooperated and collaborated in their sworn affidavits rendering their entire evidence unreliable. Corroboration is vital as stated in Maino v. Avei[1996] Unreported National Court Judgment N1676 by Injia, DCJ. The group leaders or any of the policemen could have been called to give evidence.
71. If the Petitioner relies on the alleged promise of K40,000.00 being manifested by actual payments of that amount, not only must he list the names of the recipients, he must adduce evidence from the person actually making the payments and more so adduce evidence from every recipient of that payment made and the reason for such payment made according to the understanding of the person making the payment and according to the understanding of the person receiving the money.
72. For bribery to be established the mental element or mens rea of the person making the payment and mens rea of the person receiving the money must join together. After all, bribery is a two-headed animal, it takes place or works both ways. In the context of an election, a candidate can bribe an elector for his vote with material or other things or promises and even an elector can bribe a candidate for material things or promises of rewards with his vote. Therefore when one is alleging bribery in an election, one has to be careful to separate criminal element of bribery of electors by candidates freely giving out cash and goods in return for the electors’ votes as opposed to candidates or persons making donations or paying money in direct response to direct requests without there being any criminal element of intentionally inducing the electors to vote contrary to their own wish or desires.
73. The petitioner had not given any evidence of whether any of the persons allegedly received monies from the person who paid them to vote in the by-election against their own free will.
Grounds 5 (9.1(e)).
74. This ground States that on Wednesday 21 June 2006 around 8 pm at Nine Mile Settlement the First Respondent promised to give K10,000.00 to the electors gathered amongst whom was Timon Porawi in order to induce them to vote for him or endeavour to have him returned as elected in the NCD Regional by-election.
75. The Petitioner called one witness. He was Timon Porawi. This witness purportedly deposed to an affidavit which almost one half the entire affidavit contained pages that did not belong to him and did not have his signatures on them. The affidavit was not properly completed and I refused to admit it into evidence. Consequently the Petitioner was forced to lead oral testimony from this witness. His evidence basically was that they held a rally at Nine Mile Settlement in which the First Respondent attended. The rally was organized by his campaign official Etape Ajake. He said the First Respondent told them that he and his wife started his business with K300 and today he was a millionaire. "I have all your worries already in my list. I am worried for you people. I will give you K10,000.00".
76. This is English translation of what the witness alleged were the words uttered by the First Respondent.
77. He was cross-examined strongly by Mr. Jerewai. When put to him that he and his fellow settlers from Tari and other groups invited him to solicit his support or help in resolving a long running battle with the Lands Department for the title over Portion 2219, the land they were residing on in Nine Mile, the witness agreed. However, he wanted the Court to believe that while undertaking to look into their concerns he made a promise for a free donation of K10,000 for them to spend at their pleasure. He said he advised them to go to the office and collect it. However he said they never received the money. He further added that the money was collected by Etape Ajake who did not share it with them so he took him to the village court and the Court threw out his case for want of jurisdiction.
78. This evidence is unreliable. The witness did not impress me as one who wanted to assist the court. The Petitioner called no evidence showing that as the result of this alleged promise the witness was troubled and influenced to vote in a particular way and not as freely as he would have liked or preferred.
Grounds 6 (9.1(f)).
79. This ground states that on 12 June 2006 at a rally held at Tete Settlement the First Respondent promised to give K30,000.00 to electors at Tete settlement in order to influence them to vote for him. Amongst the electors present was Kipi Charlie.
80. The ground goes further stating that two weeks later on Monday 26 June 2006 some of the First Respondent’s campaign officials including Russell Warvik went to Tete Settlement and paid out K30,000 in cash to the electors with the knowledge and authority of the First Respondent.
81. The Petitioner called two witnesses in support of this ground. They were Kipi Charlie and Uari Kipi, the former is a registered voter whereas the latter is not, but this does not render his evidence bad. Both witnesses also deposed to affidavits which were tendered into evidence and marked as Exhibits ‘Q’ and ‘R’ respectively.
82. Kipi Charlie has been a resident of Tete Settlement since it sprang to life with human habitation. The settlement had quite a good mixture of ethnic groups from all over Papua New Guinea including Goilalas, Keremas, Baimuru, Gorokans, Okapans, Rigos, Chimbus, Manus, Sepik, Abaus, Hagens, Daru and even West Papuans. He remembered 12 June 2006 when a huge rally was held at Tete Settlement organized by the First Respondent’s Campaign Coordinating Committee for that settlement. The rally was attended by the Candidate himself Mr. Wari Vele, his campaign officials including one Russell Warvik who featured prominently in this gathering and the ground of this petition as the man moving between the First Respondent and the local campaign committee with respect to payments of cash to various groups and individuals in the settlement after the rally.
83. There were good number of speakers and speakers from various groups followed by traditional dances from all those different ethnic groups that made up that settlement. He said during his speech the First Respondent said words to the effect in tok-pisin but now translated in English:
‘I am worried about you all so I am contesting the election. If you give me your first vote, I will remain with you all Tete forever. So I am allocating K30,000 for you all Tete Community specifically. This afternoon I will be leaving for Singapore and when I return I will give you all K30,000. While I am gone, you must select members of your community who will come to my office to collect the money. Advise me officers and settlement (sic) this arrangement.
I grew up in the settlement and I started my business with only K300. I did not start with a lot of money but somehow I am now a millionaire.’
84. According to paragraph 11 of his affidavit, from this statement Kipi Charlie concluded that ‘Wari Vele wanted us to give him our first preference vote in the by-election when promising us the K30,000.00’.
85. Two weeks after the rally on Monday 26 June 2006 a group of campaign officials from the First Respondents camp went over to Tete Settlement under Police escort and disbursed envelopes containing cash to various groups and individuals. In paragraph 12 of his affidavit Kipi Charlie deposed that –
‘after making the promise, some of the First Respondent campaign officials including Mr. Russell Warvik came to Tete Settlement and paid out the K30,000 in cash to the electors at the said settlement with the knowledge and authority of the First Respondent, thus confirming the intention of the First Respondent to influencing us electors at Tete into voting for him at the said by-election.’
86. According to Kipi Charlie the distribution of these payments was in furtherance of the promises of K30,000 that Wari Vele made to them as they were assured on the day these payments were made by Russell Warvik.
87. The difficulties associated with this evidence is that not only it is based on secondary information such as quoting hearsays from others such as ‘Mr. Russell Warvik told the residents that they were there to honour Mr. Wari Vele’s commitment’. When Mr. Russell Warvik was a competent and compellable witness to tell this Court himself what he is alleged to have said, he was not called. It is not the First Respondents duty to call this witness because the First Respondent is the person who stands accused of these illegal acts of bribery and it behoved the Petitioner, as his accuser to present before this Court credible evidence to convince the Court on the required standard of proof as laid down in Bourne v. Voeto (supra). The burden never shifted to the First Respondent at any stage bearing in mind that the standard is close to the criminal standard.
88. Second difficulty I have with the Petitioner’s case on this ground is, as I have already expressed, that I have no evidence before me from any of the recipients of these alleged payments saying that their free exercise of franchise was curtailed or hampered by these showers of generosity and gifts of cash and kind that they felt obliged or had no choice but to vote contrary to their own beliefs and inclinations. There is no such evidence before me.
89. The third difficulty I have in the Petitioner’s case on this particular ground is that while the Petitioner alleges a promise of K30,000 made by the First Respondent to the electors at Tete Settlement which he followed up two weeks later with distribution of money he promised through his campaign official, number of annexures marked "A" to "E" to Kipi Charlie’s affidavit alluded to earlier show a completely different picture because the annexures are documents showing acquittals of the money that the First Respondent or his campaign officials spent at that particular rally where expenses were incurred in the preparation and staging of the event and payments were made to those involved one way or another; and each, either individual or group, signed for the payments as evidence of receiving in good faith. As there is no such thing as a ‘free-lunch’, similarly staging of events like campaign rallies do cost money and somebody meets these costs.
90. These annexures which the Petitioner himself had seen fit to include as evidence in support of this particular ground, in fact clearly contradict the allegation of fulfilment of a K30,000 promise to the electors by the First Respondent to induce them to vote for him. To impute criminal intention or motive in the payments made such as that of bribing of electors, the petitioner needed to go further by showing that these payments were not made for the purposes as stated in the documents attached, they were intended to induce the recipients of those payments to vote for him. None of those recipients were called to give evidence and to this day all we know is that those were payments made to compensate or thank the people who took part one way or another in the rally as the documents show. The Petitioner cannot go past those documents that he knowingly and consciously tendered in Court as evidence in his own case if he cannot call any of those recipients to explain the reasons for those payments.
91. Uari Kipi gave similar evidence as Kipi Charlie. He expresses the same opinion evidence in paragraphs 11 and 12 of his affidavit where he believed that Wari Vele promised them K30,000 because he wanted their first preferential vote and that two weeks later Russell Warvik went to the settlement in the company of two armed and three unarmed policemen from Gerehu Police Station and made the payments. And he too annexed the same documents in his affidavit marked with letters ‘A’ to ‘E’.
92. His affidavit is much the same as that of Kipi Charlie and does no more than state those matters I have alluded to already in Kipi Charlie’s affidavit. His evidence is therefore self-defeating by the same annexures I have referred to earlier.
93. If anything, I thought that this was one of the Petitioner’s strong grounds but I am not convinced it is now. Bribery entails not just a mere act of giving something to somebody but also proving the intention or the ulterior or unlawful motive or reason that draws out the unspoken message that passes between the giver, and the taker, and if such a link cannot be established, it is futile to infer or impute bribery where it is uninvited in whatever occasion. Just because it is election time it does not suddenly become unlawful without a clear prescription of the law.
Ground 7 (9.1 (g)).
94. This ground in the way it is pleaded, borders on bribery and undue influence. The First Respondent took it to mean undue influence whereas the Petitioner maintained that he was relying on bribery and not undue influence. One can appreciate why the First Respondent, through his lawyers, thought that this ground was founded on undue influence provided under s. 102 of the Criminal Code as I demonstrate below.
95. This ground pleads that on Saturday 1 July 2006 at Unagi Oval there was a campaign rally organized specifically for the people of Hela in the Southern Highlands Province by Campaign officials of the First Respondent. There was a huge crowd of Hela people and other people and apart from the First Respondent, the Honourable Prime Minister Grand Chief Right Honourable, Sir Michael Somare was also invited to address the gathering. It is alleged that in the course of his address on behalf of the First Respondent, Grand Chief Sir Michael Somare told the people of Hela gathered there to vote for the First Respondent and his government will grant a separate province to Hela people from the rest of Southern Highlands and that His Government will amend the National Capital District commission Act and make the First Respondent the Governor of National Capital District. Such promise was made in order to induce the Hela people in NCD to vote for the First Respondent because this was coming from the Prime Minister.
96. The ground as pleaded might suffice for bribery subject to calling evidence to substantiate it but it could equally be said to be one of undue influence. This becomes apparent when the Petitioner went further and extended the ground by attempting to show that the Prime Minister had misled the people by his address when he could not for all practical purposes deliver that promise which he knew to be incapable of delivering as the Parliament had deferred discussion on separate Province for Hela until after the 2007 elections. It was this second part of this ground where he relied on the falsity of the statement made that raised the issue of undue influence. Reported cases have said that if a statement made is deliberate and despite knowing it to be false, the effect of which is that it unduly influenced a voter to cast his vote in a particular way against his own choice or conscience as the result of that falsity, election shall be declared void on the ground of undue influence. See Bourne v. Voeto (supra).
97. Mr. Jerewai argued that a promise must relate to a property and not in respect of some intangible substance or object. The question then arose as to whether ‘benefit of any kind’ included such promise as allegedly made. The ultimate effect of Mr. Jerewai’s submission in respect of this ground is that it is a spurious allegation that lacks substance in that it is referring to something or of an event that is of no consequence or relevance to NCD and in any event, if it is true that it was made by the Prime Minister, it was his own prerogative to make that statement and he would not need any authority from the First Respondent to say what he liked.
98. This ground was not vigorously pursued initially by the Petitioner because of the defect in his pleading where he omitted to state that the First Respondent was present at the rally when the Right Honourable Prime Minister allegedly made those statements. I allowed the ground to remain because it was common sense that for the Prime Minister to be at the rally campaigning for his candidate, the candidate must be present. This was confirmed on evidence when the First Respondent said he was present at the rally when the Right Honourable Prime Minister spoke at the rally and made promises as Prime Minister of the country but such matters he spoke of or made promises about are not bribery or undue influence because they were within his powers as the head of the National Executive and the National Parliament to deliver such things.
99. Leaving aside the extended paragraph in this ground of the petition and proceeding only with the first paragraph, the ground as pleaded has failed to muster the evidence capable of showing that the promise made to the Hela people living in Port Moresby did have the required and anticipated effect of inducing the voters of Hela origin in NCD to vote against their own conscious and free will which they would have been able to do without this promise hanging over them. No such evidence was placed before the court and the evidence of the only witness for this ground Betty Harigali remains to see the end.
100. Betty Harigali’s affidavit marked as Exhibit ‘S’ is quite extensive and quotes almost verbatim excerpts of speeches made at the rally not only by Right Honourable Prime Minister Sir Michael Somare but included also other leaders such as Minister for Civil Aviation and the Deputy Prime Minister, Hon. Don Polye, MP and former member for Komo-Magarima, Alfred Kaiabe Aluago who were there and addressed the gathering too.
101. In paragraph 11 Sir Michael is alleged to have said in Tok Pisin (but translated in English):
"You must vote for Mr. Wari Vele and I will declare Hela Province before 2007 National Election for you.
Mr. Wari Vele is concerned about you.
You must give Mr. Wari Vele your first preferential vote and he will serve you better when he is voted into the National Parliament or gets into the office of the National Capital District."
102. I need not repeat what other speakers are alleged to have said as deposed to in Ms Harigali’s affidavit paragraphs 12-17. In paragraphs 18-20 Ms Harigali’s expressed her anger and disappointment in the speakers in this rally for politicizing the separate Hela Province issue for their own end particularly to secure votes from Hela people living in NCD. And the crucial part of her evidence as pleaded in 21 of her affidavit is where she wants the Court to accept her opinion of bribery being committed in this rally where she stated:
"I believe that this promise by the Prime Mister on behalf of Mr. Wari Vele did influence a lot of voters or electors from Hela region living in NCD to vote for Wari Vele as the comments were received by a lot of electors from Hela residing in NCD and was reportedly widely in newspapers, radio and TV."
Ms Harigali then annexed a newspaper cutting for 4 July 2006 – National marked with letter ‘A’ showing the newspaper coverage of the talk or speeches at the said rally.
103. Unfortunately Ms Harigali cannot give evidence for the Hela people who were or were not influenced by the Prime Minister’s talk. If they were influenced one way or another that affected their free exercise of franchise at the by-election, they must give evidence themselves. All that she had to do was to tell the court how she was affected by that speech and how that did influence her in the election. Did she feel compelled to vote for the First Respondent as the result of that promise? But in the end she admitted that the Prime Minister made no threats to anyone who did not vote for the First Respondent. While the Court is not bound by technical rules of evidence and real justice must be observed as stipulated in section 217 OLNLLGE, to prove this allegation which is criminal in nature and having far reaching implications, hearsay and personal opinions cannot substitute the rules of fair play and justice according to law. Justice is a two-edged sword and one who seeks justice must also do justice to others.
104. The Petitioner argued before me that I must apply a different standard of proof as opposed to that promulgated in Bourne v. Voeto(supra) where the Court said:
"Mr. Gregory submitted that the degree of proof falls short of proof beyond reasonable doubt. However, in this case before I uphold the petition, I am of opinion that the ground of it must be proved to my entire satisfaction, and that as Willes J. said, if I am not to be very sure I must at least be sure that the ground has been made out. It may fall therefore just short of the criminal standard, although in application I consider there would be no real practical difference."
105. This statement of the law has never been disputed nor rejected for three decades since its formulation and I see no reason for the Court in this case adopting a different standard. Bribery is a criminal offence just like undue influence which Bourne v. Voeto (supra) was concerned with. While an election petition is not a criminal prosecution, any allegation of impropriety or inappropriateness or irregularity or illegal practice would more often than not connote an element of a criminal offence of one form or another. Therefore whilst the finding of guilt that follows after all the evidence is led does not amount to a conviction as in a criminal prosecution, the ultimate effect of invalidation of an election result thereby disgracing a successful candidate publicly by declaring his election void must attract or invite just as serious consideration that the Court must be mindful of and which is all the more reason why the standard of proof required must remain as high as already determined by law.
106. Court of Disputed Returns is a Court of Law and the conduct of proceedings before it is as governed by the rules of Court, the principles laid down by law and the constitutional laws of the country. Public opinions propagated by the mass media and newspapers publication do not substitute these long established precedents of common law and the underlying law as developed by our own superior courts over the years to suit the whims of individual litigants. They must submit to these fine principles in order to achieve justice.
107. This case is a good illustration where a candidate giving willingly although the evidence was inconclusive to the needy or groups of people including church groups, youth groups, women groups, different ethnic groups and others on their requests during election time cash and other benefits and for his generosity he is hauled up in court with serious allegations of bribery. Why should it be bribery when the kind gestures are in response to direct requests? Should they amount to bribery, those who received the gifts must be the ones hauled up in court charged with bribery and convicted before their benevolent donor. This is where the mental element of intent or intention is most crucial to be clearly borne out in the evidence, not simply pleaded. Because you cannot really know what was behind the mind of the person who made the donation unless you haul up the receiver who is best placed to say whether the token was to bribe him for his vote or something he needed badly to enhance his living.
108. In fact election time is a time when people from all walks of life reckon it is as a good time for cash and other goodies freely flowing to them including gifts and other things. This is a universal belief or practice all over the world where free elections are held. In some countries it is customary to make gifts during visits to people or heads of certain venues where meetings are held and pay fines imposed for some breaches of custom as put in Tatireta v Tong [2003] KIHC 1; [2003] 5 LRC 665 where the High Court of Kiribati held that:
.......for there to be bribery, there must be evidence that voting in the election had been corrupted; it must be shown that relevant payments were requested or made with corrupt motive and that they had identifiable or likely effect upon the election result. The Court said that "the legitimacy of ‘mweaka’ a small customary payment in money or kind by visitors to the local ‘maneaba’ or traditional meeting house, defined by the Elections Ordinance in s3 had been recognized by the proviso to s24 of the Ordinance, which distinguished it from bribery where the sole intention was to show respect for the local customs. But the court also went further to warn that custom must not be allowed to be used as a cloak for electoral corruption.
109. Again, this case from a court of similar jurisdiction in the region, although not binding on the courts here, is expressing a legal statement in respect of a practice that is not uncommon in many traditional societies in Papua New Guinea where chieftainship and kukurai system prevail and held at high regard and esteem.
110. In summary, in the light of the discussions in respect of the grounds of the petition, the court finds as follows:
111. The end result is that the petition is dismissed in its entirety. Except for the costs associated with the competency application, all other costs in connection with this Petition on behalf of the First and Second Respondents shall be paid by the Petitioner.
______________________________
Powers Parkop Lawyers: Lawyers for Petitioner
Jerewai Lawyers: Lawyers for First Respondent
Nonggorr & Associates: Lawyers for Second & Third Respondents
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URL: http://www.paclii.org/pg/cases/PGNC/2007/145.html