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Dusava v Waranaka [2008] PGNC 69; N3368 (23 April 2008)

N3368

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 22 OF 2007

IN THE MATTER OF THE ORGANIC LAW
ON THE NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

IN THE MATTER OF THE DISPUTED RETURN
FOR THE YANGORU-SAUSSIA ELECTORATE IN THE 2007 GENERAL ELECTIONS

BETWEEN:

GABRIEL DUSAVA
Petitioner

AND:

PETER WARARU WARANAKA
First Respondent

AND:

FRANK UONE
Second Respondent

AND:

ANDREW TRAWEN,
PAPUA NEW GUINEA ELECTORAL COMMISSIONER
Third Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Wewak: Manuhu J
2008: March, 26, 27, 28, & April 23

PARLIAMENT – Elections – Allegations of Bribery – Relevant Statutory Provisions – Cases on bribery – Bribery as a Corrupt Practice – Burden of Proof – Standard of Proof – Allegations – Evidence – Findings – Declaration.

Cases Cited.

Delba Biri v Bill Ninkama [1982] PNGLR 342,
Dick Mune v Anderson Agiru (1998) SC590,
Holloway v. Ivarato [1998] PNGLR 88,
Micah v Ling-Stuckey (1998) N1790,
Paru Aihi v Moi Avei (2004) N2523,
Polye v Sauk (1999) N1860,
Powes Parkop v Wari Vele (2007) Unreported, per Kirriwom J,
Raymond Agonia v. Albert Karo and Electoral Commission [1992] PNGLR 463,
Re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298,
Robert Yabara v The State [1984] PNGLR 378,
State v. Kiap Bonga [1988-89] PNGLR 360,
State v Pablito P. Miguel (2002) N2338,
The State v Danny Makao (2005) N2996.

Counsel:

F. Alua, for the Petitioner.
T. Sirae, for the First Respondent.
R. William, for the Second, Third and Fourth Respondents.

23 April, 2008

1. MANUHU, J: This is the final judgment on the substantive hearing of the petition within which the Petitioner, Mr. Gabriel Dusava, alleges five instances of bribery and, consequently, seeks to void the election of the First Respondent, Honourable Peter Wararu Waranaka, also Governor of East Sepik Province, as the duly elected member for Yangoru-Saussia Open Electorate, East Sepik Province, in the 2007 General Elections. The First Respondent is defending his election. He contends that he did not bribe any elector and the petition should be dismissed. The central issue, therefore, is whether the First Respondent has committed bribery warranting the voiding of his election as the member for the said electorate.

2. The judgment is set out in the following manner. It begins with a segment on the provision of the Organic Law on National and Local-Level Government Elections (Organic Law) on bribery and how it affects the election of a successful candidate. The relevant provision of the Criminal Code Act, Ch. No. 262 (the Code) is also set out to compliment the provision of the Organic Law. The next segment is a summary of past cases on bribery following a trial. It outlines the varying circumstances of bribery or otherwise as found by the courts. The next segment is a discussion on bribery as a corrupt practice, hence, its seriousness.

3. It is then necessary to be reminded of the relevant procedural rules which shall guide the Court in its handling of the allegations and evidence. Ultimately, the allegations, the evidence and the Court’s analysis of the evidence will be considered. The parties and the people of Yangoru-Saussia will know thereafter whether or not the Petitioner has successfully proved any allegation of bribery warranting the voiding of the election of the First Respondent.

B. Relevant Statutory Provisions

4. The allegations are brought pursuant to Section 215(1) of the Organic Law in conjunction with section 103 (1) (a) and (d) of the Criminal Code Act, Ch. No. 262 (the Code). A finding of bribery has dire consequences for a successful candidate and the electors. It will automatically result in the voiding of his election and the electors will have no voice in Parliament until such time a by-election is held. Section 215 (1) of the Organic Law provides simply that 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." The provision is mandatory. The Court does not have any other option.

5. Bribery is not defined by the Organic Law. As alluded to, the Petitioner has pleaded section 215(1) in conjunction with section 103(1)(a)(d) of the Criminal Code. On that regard, section 103 provides:

"(1) 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

....

(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

....

is guilty of a misdemeanour."

6. Procedurally, the Petitioner is strictly required to prove each of the elements of bribery under section 103.

C. Cases on Bribery

7. On that note, just what constitutes bribery depends largely on the circumstance of each case and the nature of the allegation. Kirriwom J made these remarks in the case of Powes Parkop v Wari Vele (2007) Unnumbered, in the following manner:

"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."

8. His Honour Kirriwom, J. went on to distinguish Raymond Agonia v Albert Karo [1992] PNGLR 463 as a precedent on competency from cases where findings of bribery or otherwise were made following a substantive hearing. I have the same preference. In a substantive hearing of an allegation of bribery, as is the case here, it is necessary to seek guidance and assistance from decisions where bribery allegations were substantively heard. On that regard, apart from Powes Parkop v Wari Vele, I am indebted to Kirriwom, J. for his summary of past decisions on bribery, which are as follows:

"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.

"In Michael Mel v William Ekip Wii and the Electoral Commission [1993] Unreported National Court Judgment 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.

....

"Palme v Mel [1989] Unreported National Court Judgment N808 (20 December 1989) is another case on point.... 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."

....

"In re Komo-Magarima Open Parliamentary Election – Kaiabe v Makiba [1989] Unreported National Court Judgment 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."

9. These cases are helpful guidelines when the Court deals with the allegations and the evidence on bribery. Each allegation will, however, be decided on its own merits.

D. Bribery: a deadly social disease

10. It is instructive to examine how the courts have, over the years, perceived the offence of bribery generally and its influence on good governance, the public service, the private sector and, for that matter, the community at large. It is hoped that this discussion will enlighten us on the seriousness of the offence of bribery.

11. The Supreme Court case of Robert Yabara v The State [1984] PNGLR 378 cannot be missed. In that case, Pratt J, who was the president, spoke about bribery in the following oft-cited passage:

"If such occurrences [bribery] became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):

‘Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late.’"

12. Pratt J was simply sounding out a warning about the inherent dangers of the corrupt practice of bribery on the structure of Government and the Rule of Law. It did not take long before Barnett J wrote about corruption becoming a growing concern. In the case of the State v. Kiap Bonga [1988-89] PNGLR 360 Barnett J expressed his concerns in the following manner:

"The offence of official corruption is a serious one... Corruption is a growing problem in Papua New Guinea and involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who is offered the bribe and there are rarely independent witnesses to the event.

"I am aware that many persons who have been accused of giving or receiving very large bribes are apparently managing to avoid prosecution or conviction. When a case has been successfully proved, however, this Court has a duty to treat the matter seriously."

13. By 2002, bribery and other corrupt practices "have become the norm of getting business done" prompting calls for offenders to be severely punished with custodial sentences. These remarks were made by Injia J, as he then was, in the case of State v Pablito P. Miguel (2002) N2338, in the following manner:

"Offences of bribery, undue influence and other corrupt practice seem to have become the norm of getting business done, in all areas of business, both in the private sector and more particularly in government. We hear of and read in the daily media and in private conversations in homes, on the streets, in cities and in villages stories of instances of bribery of public officials at all levels of government, but they rarely get exposed and reported to police, and successfully prosecuted. When they do get exposed and successfully prosecuted, and thanks to dedicated and honest officials ..., the Court must treat it seriously and impose a strong punitive and deterrent sentence in the form of custodial sentence, as a warning to other potential offenders. It would not seem right and just that when the very offence involves the use of money by the offender to bribe a public official, he should be allowed to "pay his way out of jail", with the use of money, whatever the amount of money may be. To allow that to happen sets a dangerous precedent for others to expect the same treatment – that the more affluent members of our community will avoid real punishment by paying money. By real punishment, I am referring to a punitive and deterrent sentence in the form of custodial sentence. A fine or a suspended sentence in my view would not have sufficient punitive and deterrent effect. And speaking of the affluent, both locals and expatriates in our country, their good personal, educational, church, prior good character, guilty plea, remorse and concern over the welfare of their young family, cannot deter imprisonment. These are very attributes, which get him into a position of influence and respect, but they abuse those attributes to engage in corrupt practices. And when they do, such attributes have little or no effect in preventing a custodial sentence. Also these are things which should help him decide against committing the offence in the first place."

14. By 2005, the offence of bribery was no longer prevalent. It had become "far more rampant" and at a critical point. This was highlighted by Kandakasi J in the case of The State v Danny Makao (2005) N2996, as follows:

"... as early as the 1980s, both the Supreme and National Courts noted that the offence of bribery is very serious and a prevalent offence. Since that time, the offence is far more rampant. The newspapers, radios and electronic media, report almost on a daily basis of the level and recurrence of this offence throughout the country. There is also a very active campaign against corruption by a number of organizations such as Transparency International. Despite these efforts, the prevalence of the offence has not dropped but has increased. The increase is up to a point where no government service is available without some form of bribery or benefit variously described as "bus fare", "lunch money" or such like passing from the one seeking a service to a public service who is employed and paid by public money already to provide services to the public. This has to stop and the only way to do that is to impose sterner punishments against those who are caught and successfully prosecuted."

15. In the context of elections, the legislature holds the same view and is as concerned as the judiciary. This is clearly demonstrated in the Organic Law. An improper conduct by a candidate will not affect his election unless such conduct has a bearing on the result. Bribery and undue influence, on the other hand, are considered very serious electoral offence. The Organic Law makes it very clear. Candidates should not bribe voters. A candidate who secures his election in that manner is not worthy of holding a leadership position in Parliament. Section 215 (1) seeks to weed out bribery and undue influence by candidates in elections. The Organic Law sets a very high standard for a person wanting to be his people’s voice in Parliament. His election should be voided if he bribed the voters to vote for him. A single act of bribery is enough to void an election regardless of whether it affected the final result.

E. Relevant Procedural Rules

16. It is appropriate to note the relevant procedural rules which shall be followed as the Court as it considers the allegations and the evidence. First, in its consideration of the evidence, the Court is not bound by the technical rules of evidence. Section 217 provides that the "National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not." See Delba Biri v Bill Ninkama [1982] PNGLR 342.

17. Secondly, the Petitioner always bears the burden of proof: re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Paru Aihi v Moi Avei (2004) N2523 per Injia, DCJ, and Micah v Ling-Stuckey (1998) N1790 per Kirriwom, J.

18. Thirdly, the standard of proof is also settled except that there appears to be a temptation to apply the criminal standard of proof. This is probably occasioned by the different types of allegations raised in election petitions. Some allegations would be criminal offences and some would not.

19. The appropriate standard of proof was authoritatively laid down by Frost, CJ in the Supreme Court case of re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto, in the following manner:

"The standard of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no practical difference."

20. However, in the case of Polye v Sauk (1999) N1860, Woods J, was of the view that where bribery is alleged, the standard of proof is equivalent to the criminal standard of proof. This is what he said:

"Bribery is a very serious allegation involving a criminal offence and the standard of proof required must be equivalent to the criminal standard."

21. The tendency to apply the criminal standard of proof was noted by Kirriwom J in Micah v Ling-Stuckey (1998) N1790 but his Honour maintained that the correct approach is as stated in re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto. This is what Kirriwom J said:

"And because the allegations raised here are that of bribery which is a criminal offence under s.103 of the Criminal Code the criminal standard of proof ought to apply. However this Court had always applied the standard of proof set by Frost, CJ in re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto .... This standard had been continually upheld and applied since and I shall apply the same standard here in determining the three allegations of bribery that remain in the petition against the First Respondent."

22. I take note that Woods J and Kirriwom J were dealing with petitions from the 1997 General Elections and were probably not aware of their seemingly differing views. Subsequent cases such as Paru Aihi v Moi Avei (2004) N2523 and Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463 are, however, aligned with Kirriwom J and Frost CJ ultimately.

23. On my part, it is probably difficult to comprehend a standard "just short" of the criminal standard. What is the width and breadth of a standard "just short" of the criminal standard? This difficulty becomes obvious when different grounds are alleged in a petition. As alluded to, some grounds may be criminal offences requiring a particular approach. Some grounds may not be criminal offences needing a different approach. Proof on the balance of probabilities is easily capable of practical application. Proof beyond reasonable doubt is likewise easy to apply. Proof "just short" of the criminal standard makes theoretical sense but "in application there [is] no practical difference" with the criminal standard of proof.

24. Sanctity of elections is also a relevant consideration. The Supreme Court made it clear in the case of Delba Biri v Bill Ninkama [1982] PNGLR 342 at page 345 that:

"An election petition is not an ordinary cause (In Re The Norwich Election Petitions; Birbeck v. Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."

25. With all of these observations and principles in mind, I will follow Woods J and utilise the criminal standard of proof in this petition subject only to the provisions of the Organic Law and, in particular, section 217. The gravity of the occasion and the seriousness of the allegations demand the application of the criminal standard of proof which is, of course, qualified by the requirement to do substantial justice and without the need for strict and technical rules of evidence. For practical purposes, proof beyond reasonable doubt qualified by section 217 and the Organic Law is probably the same as the standard enunciated by Frost CJ. It is probably a case of choice of words but at least I am certain on the steps I will take on how I shall consider and weigh the evidence.

F. The Allegations and Evidence

26. On that note, let us consider the evidence against each allegation. For reasons which would become apparent later, I will deal first with the bribery allegations in Fact 4, Fact 5, Fact 6 and Fact 7. Fact 2 will be considered last.

Fact 4: Bribery of Ingian Noah Kuhune

27. It is alleged that on Friday 28th June 2007 at about 3.00 pm, the First Respondent arrived at Niakandogum No. 2 Village in the Yangoru-Saussia Open Electorate and gave K50.00 with his election poster to Ingian Noah Kuhune (Ingian) who was an elector.

28. It is not disputed that the First Respondent was a candidate at the relevant time. It is also not disputed that Ingian was an elector in the Yangoru-Saussia Open Electorate. The only dispute is whether the First Respondent gave any money to Ingian.

29. The Petitioner produced two witnesses who gave evidence that they were present when the First Respondent gave K50.00 with his election poster to Ingian. Ingian is a very old man and could not travel to Wewak to give evidence. The First Respondent called a witness to rebut the allegation. Unfortunately, the witness’ house was one kilometre away from Ingian’s house. The First Respondent’s evidence in his defence was not impressive, particularly when he had produced a witness who readily admitted that he could not have seen the First Respondent going to Ingian’s house.

30. Unfortunately, a fatal error was discovered which the Court was made aware of during final submissions. It is alleged that the alleged bribery took place on Friday 28th June 2007. Unfortunately, 28th of June 2007 was not a Friday. I take judicial notice of the 2007 Calendar which clearly has 28th June 2007 as a Thursday. This remarkable anomaly was not addressed at the time the witnesses gave evidence. It seems like a simple mistake but I do not know whether the alleged bribery was committed on Thursday 28th of June or Friday 29th of June. And because the mistake was not addressed during the trial, there is no evidentiary basis for the Court to make a finding of fact one way or the other.

31. In the circumstances, the benefit of the doubt belongs to the First Respondent. There exists a reasonable doubt. This allegation is dismissed. It is not necessary to determined other disputed facts.

Fact 5: Bribery of Alois Maniura

32. It is alleged under Fact 5 that between about 10.00 am and 12.00 noon, on 28th May 2007, the First Respondent drove to Huaindua Village in the Yangoru-Saussia Open Electorate and gave K3,800.00 in cash to Ward Member Soli Warahambe and Alois Maniura, an elector. The K800.00 was for the payment of a pig slaughtered for the occasion. The K3,000.00 was the First Respondent’s contribution to a customary compensation payment for two deaths in the 2003-04 New Year celebrations. Nevertheless, the Petitioner argues that the First Respondent’s intention was to unduly influence the electors. The main issue, therefore, is whether the First Respondent intended to unduly influence the electors to vote for him.

33. It is not disputed that the First Respondent’s contribution was in relation to the killings of three men during the 2003-4 New Year. It is not disputed that the occasion was a peace ceremony. There is no evidence that the First Respondent said anything during the ceremony to influence the people who were there. The First Respondent was the Governor then and a leader in his electorate. He did not have to cease performing his official and traditional obligations. It cannot be bribery for a candidate, as a Governor or traditional leader, to participate in a genuine compensation ceremony even if such ceremony was held during the campaign period.

34. In the circumstances, the Petitioner has failed to prove the element of intent. This allegation is, therefore, dismissed.

Fact 6: Bribery of Oscar Manihao

35. It is further alleged that on 14th May 2007 at 12.00 noon at Maringei Village in Yangoru-Saussia Open Electorate, the First Respondent gave K2,000.00 to Oscar Manihao, an elector, on behalf of the auxiliary police. It is alleged that this constitutes bribery. It is not disputed that the auxiliary police had incurred debts and had been waiting for assistance from the First Respondent. He decided to see the auxiliary police on 14th May 2007 when he was already a candidate. The issue here is whether the First Respondent intended to induce the electors to vote for him when he gave K2,000.00 to the auxiliary police.

36. There is simply no evidence that the First Respondent asked members of the auxiliary police to vote for him. There is undisputed evidence that the auxiliary police had been expecting the First Respondent to make the payment he eventually made on 14th May. The First Respondent was undoubtedly motivated by his interest in winning the elections but it cannot be bribery for a person to satisfy his lawful obligation or lawful activity even during the campaign period.

37. The element of intent is, therefore, not proved and the allegation is dismissed.

Fact 7: Bribery of Juliana Saisehunie

38. It is alleged that at about 1.00 pm on 24th June 2007, the First Respondent promised Juliana Saisehunie (Juliana), an elector, and a women’s group that he would deposit K5,000.00 into their bank account upon winning the election. A week earlier on 16th June 2007, a Joseph Wanji, a campaign manager for the First Respondent, had told the people from the said village that they contribute K5.00 each and open an account with the East Sepik Savings & Loans Society. The First Respondent would later top up their account with K5,000.00. It is alleged that this constitutes bribery.

39. Unfortunately, Juliana gave evidence for the First Respondent and denied all the allegations. In a criminal proceeding, the prosecution’s case always fails when a complainant or victim joins the defence team. That is the situation here. This allegation is, therefore, dismissed.

Fact 2: Bribery of Marcus Paringu

40. It is alleged that on 7th June 2007 at about 10.00 am, the First Respondent went to Wamaian village and after giving K50.00 to Marcus Paringu (Paringu), told Paringu to vote for him.

41. The undisputed facts are that the First Respondent was already a candidate on the day in question. Paringu was an elector in the Yangoru-Saussia Open Electorate. It is also not disputed that the First Respondent drove into the village in a Government vehicle, a Mitsubishi Canter, Registration Number ZGB 865, and gave away K50.00. The only dispute of fact is to whom the money was given and what the money was for.

42. Witnesses Paringu and David Sassingian (Sassingian) gave evidence in support of the allegation. They both testified that the money was given to Paringu. According to Paringu, on the day and time in question, the First Respondent drove to his village in the Government vehicle. He drove closer to Paringu and said:

"Hei, olsem wanem na yu no laik kam stap wantaim mipela ol liklik lain na stap wantaim Dusava?" (Hey, why do you not want to stay (support) with us little people and you stay with (support) Dusava?)

43. Paringu said he did not respond. He just stood not knowing what to do or say. The First Respondent then moved closer to him and slipped K50.00 cash into his hand, stared at him, and said:

"Yu holim dispela moni na tingim mi" (You take this money and think of me).

44. Paringu said he held the money and showed it to his brother James Lihomie, Jeffery Nangu, Sassingian and Mathias Yehiholi who were with him at that time. He spent the K50.00 and instructed his son, Bradley Paringu, daughter Anneth Paringu and wife Susan Paringu to cast their votes for Mr. Peter Wararu which they did. He said in his affidavit that he gave his second preference to the First Respondent. Paringu’s evidence was supported by the evidence of Sasingian without any significant variation. In cross-examination, both witnesses strongly defended what they heard the First Respondent said. They stated in cross-examination that after the First Respondent had gone, they wrote down what he said to Paringu.

45. The First Respondent, through Mr. Sirae, submits, firstly, that the demeanor of the witness Paringu was very poor and goes to show that Paringu was not telling the truth. In cross examination, it was submitted, Paringu said he gave his first preference vote to the First Respondent. In his affidavit, he gave his second preference vote to the First Respondent. His evidence is, therefore, contradictory.

46. It is secondly submitted that it does not make sense that Paringu would give his first preference vote to the First Respondent and give his second preference vote to the Petitioner, whom he strongly supports. Even if he was bribed to vote for the First Respondent, Paringu would most probably give his first preference vote to the Petitioner.

47. It is thirdly submitted that Paringu could not have written the exact words the First Respondent said to him when he received the K50.00 from the First Respondent. It is submitted that it is unusual for someone to be prepared with a notepad and be waiting for something to happen, particularly not in a village setting. When asked whether he had the original note, Paringu was not able to produce it. It is doubtful, it is submitted, whether Paringu could write down the exact words said and recall what the First Respondent said. A similar argument was raised in relation to witness Sassingian.

48. I will deal with the first and second arguments together. The Court is of the view, with respect, that Paringu and Sassingian did well when they gave evidence. Their overall demeanour was impressive. Paringu appeared to contradict his evidence on who was given the first and second preference but I accept that he gave his first preference to the First Respondent after he received K50.00.

49. In any event, it would not matter if he did indeed give his second preference to the First Respondent. The crime of bribery is complete as soon as money passed from the First Respondent to Paringu and, for that matter, a second preference vote is still proof that Marcus Paringu was influenced by the money he received from the First Respondent. He clearly stated that he was undecided on his other preferences until the alleged bribery. The argument on how he voted is, therefore, unnecessary.

50. In relation to the third argument, I decline to underestimate the intelligence of Paringu and Sassingian. They are villagers but it is not unusual and unreasonable nowadays for villagers to have their pens, biros and something to write on. I remember my own father, who did not attend any of the schools we have now, keeping a notebook in which he wrote his notes. I am talking about the sixties and seventies.

51. Secondly, the National Election was a major event. The election in question was preceded by adequate campaign and awareness on bribery, among other things, by various institutions, including the Fourth Respondent. It is expected, therefore, that people would have been generally aware that bribery by candidates was not allowed. It does not surprise me, consequently, that the witnesses decided to quickly write down notes after the First Respondent had driven away. What they did assisted them to recall the exact words that were said as reproduced in their respective affidavits.

52. Furthermore, the witnesses’ evidence on their note taking emerged only during cross-examination. Mr. Sirae’s attempt to discredit and undermine the witnesses’ recollection of the words uttered by the First Respondent proved counter productive when the witnesses promptly explained that they wrote the words down. It was Mr. Sirae who asked whether the exact words were written down. The answer to his question was in the affirmative. It is not unreasonable but a little too much in the circumstances for Mr. Sirae to demand production of the notes. At the first instance, the witnesses did not consider it necessary and did not prepare for it.

53. Mr. William made submissions on behalf of the other respondents. I will only deal with the submissions which are different to what Mr. Sirae has covered. It was firstly submitted that the petition does not state that Paringu was an elector. It amounts to an amendment of the petition which is prevented by law when the Petitioner was permitted to adduce evidence of Paringu being an elector. The Court should, therefore, dismiss this ground for being incompetent on the basis that material facts were not pleaded. With respect, the evidence on Paringu being an elector was received by the Court without objections. In any event, the Court has determined this issue in its ruling on competency. This argument is, therefore, without merit.

54. It is secondly argued that the witnesses did not use a Bible at the time their affidavits were signed. Mr. William argued that the Court must seriously guard its procedures. In my view, however, this perceived anomaly has been rectified. The witnesses gave evidence on oath and they swore that the matters contained in their affidavits were true. With this affirmation, I accept their evidence. To reject witnesses’ evidence on the basis of this argument or any other legalistic and technical approach would be inconsistent with the spirit of the Organic Law, particularly, section 217 where substantial justice is demanded. I have relied on section 217 to accept the affidavit evidence of the First Respondent’s witnesses even when there were no interpretation clauses. For these reasons, the second argument must also fail.

55. The First Respondent gave evidence for himself. His evidence was supported by further evidence from Malakai Hipmaningi (Malakai). In his defence, the First Respondent’s affidavit evidence was very brief. All he said was:

"I deny this allegation and say that I never gave K50.00 to Marcus Paringu. I gave a K50.00 to my committee upon request to build a grandstand for political rally at the subject village."

56. Witness Malakai began his evidence that Paringu was from a different hamlet, which in my view is irrelevant. He further stated that early in the morning of the day in question Paringu visited him. As they walked out of the house, the First Respondent saw them and stopped to speak to Malakai. But Paringu intervened and asked the First Respondent for K50.00 to buy rice and tin fish to feed the boys working on the grand stand. The First Respondent obliged and gave K50.00 to Paringu.

57. The First Respondent has failed to persuade me. His explanation in his affidavit consists of two sentences only. In cross-examination, the First Respondent and Malakai contradicted each other on who received the K50.00. The First Respondent denied giving the money to Paringu directly. Malakai said he gave the money to Paringu, which is consistent with what Marcus and Sassingian have been saying all along. In a bribery allegation, the identity of the person who received a bribe is relevant. It does not help the First Respondent when he and his witness cannot agree on who the money was given to. I find as a matter of fact that the First Respondent gave K50.00 to Paringu.

58. The purpose for which the money was given remains to be determined. The money, according to the defence, was said to be for work done on a grand stand. The First Respondent admitted, however, that he never used the grand stand which was indeed built for the Petitioner. I cannot understand how the First Respondent would give money for work on a grandstand that was not built for him. Secondly, Malakai was not an impressive witness. He appears to me to be an intelligent person but he took his time when questioned. I have the impression that he gave calculated answers.

59. Furthermore, I do not accept that the First Respondent was being accompanied by one or two persons in the vehicle as suggested by the First Respondent and Malakai. I accept Paringu and Sassingian’s evidence that many people were in the vehicle. The First Respondent would have been campaigning then. It was a Government vehicle and by reasonable inference its fuel was paid for and supplied by the State. Many supporters would have been on that vehicle at the relevant time. For all of these reasons, I accept the evidence of Paringu and Sassingian on the purpose for which the money was given.

60. For clarity’s sake, the Court’s findings on the facts are as follows. On 7th June 2007 at about 10.00 am, the First Respondent arrived at Wamaian village in a Government vehicle, a Mitsubishi Canter, Registration Number ZGB 865. The vehicle was loaded with supporters. The First Respondent was already a candidate on the day in question. Paringu was an elector in the Yangoru-Saussia Open Electorate.

61. The First Respondent drove towards Paringu and said: "Hei, olsem wanem na yu no laik kam stap wantaim mipela ol liklik lain na stap wantaim Dusava?" (Hey, why do you not want to stay (support) with us little people and you stay with (support) Dusava?) Paringu did not respond. The First Respondent then moved closer to him and slipped K50.00 cash into his hand, stared at him and said: "Yu holim dispela moni na tingim mi" (You take this money and think of me).

62. The First Respondent’s utterances clearly show that he gave K50.00 to Paringu and asked him to vote for him in the elections. Paringu held the money and showed it to his brother James Lihomie, Jeffery Nangu, Sasingian and Mathias Yehiholi who were with him at the time. He spent the money and instructed his son, Bradley Paringu, daughter Anneth Paringu and wife Susan Paringu to cast their votes for Mr. Peter Wararu which they did. He gave his first preference to the First Respondent.

63. On these facts, the Petitioner has proved the allegation under Fact 2.

G. Findings

64. It has to be determined whether the proven facts support the elements of bribery. On the facts, the First Respondent is guilty of having committed bribery. Time and date were not disputed. The amount of money given was not disputed. It has been determined that the money was given to Paringu.

65. The purpose for which the money was given is clearly evident from what the First Respondent said to Paringu. He wanted Paringu to vote for him and Paringu’s subsequent actions were consistent with the instructions from the First Respondent. Under section 103(1), therefore, a person who gives any person any property or benefit on account of anything done by an elector at an election in the capacity of an elector; or, 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 is guilty of bribery. I am satisfied, ultimately, that the First Respondent committed bribery when he gave K50.00 to Paringu with instructions for Paringu to support and vote for him in the 2007 General Elections.

H. Declaration

66. Pursuant to the mandatory provisions of section 215 (1) of the Organic Law, therefore, having found that the First Respondent committed bribery, I declare his election as Member for the Yangoru-Saussia Open Electorate void.

I. Cost

67. Cost is awarded to the Petitioner which if not agreed shall be taxed.

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Harricknen Lawyers: Lawyer for the Petitioner
Henaos Lawyers: Lawyer for the First Respondent
Nonggorr & Associates Lawyers: Lawyer for the Second, Third and Fourth Respondents