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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 30 OF 2012
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND:
IN THE MATTER OF A DISPUTED RETURNS FOR THE ALOTAU OPEN ELECTORATE
BETWEEN:
JIMMY MALADINA
Petitioner
AND:
CHARLES ABEL
First Respondent
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Alotau/Waigani: Gabi J
2012: 10th – 14th December
2012: 24th December
Facts
The petitioner petitioned against the election of the first respondent on the grounds, that the first respondent had committed bribery by paying a sum of money to a church pastor, and on the grounds that he had committed undue influence during his campaigning by alleging to voters that the petitioner was a thief.
Held:
Cases Cited:
Aluago Alfred Kaiabe v Marabe Makiba (1989) N723
Ben Micah v Ian Ling-Stuckey (1998) N1790
Desmond Baira v Kilroy Genia (1998) SC579
Fishermen's Island [1979] PNGLR 202
Neville Bourne v Manesseh Voeto [1977] PNGLR 298
Paru Aihi v Moi Avei (2004) N2523
Peter Isoaimo v Paru Aihi (2012) N4921
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463
Counsel:
Mr. G. Sheppard, for the Petitioner
Mr. D. Dotaona, for the First Respondent
Mr. T. Dalid, for the Second Respondent
DECISION
24 December, 2012
1. GABI J: INTRODUCTION: The petitioner, Mr Jimmy Maladina, filed a petition disputing the election of the first respondent, Mr Charles Abel, as the member for Alotau Open in the 2012 General Elections. The petitioner challenges the return of the first respondent as sitting member on the grounds of one count of bribery and two counts of undue influence.
2. The petitioner alleges that on 11 June 2012 at Aloalo village the first respondent held a campaign rally and handed K2, 500.00 in cash to Pastor Charlie Mangali, in the presence of electors who saw him handing over the money to the Pastor. He also alleges that at the rally and during the first respondent's speech he called the petitioner a thief.
3. Further the petition alleges the first respondent committed undue influence when he authorised the distribution of leaflets containing fraudulent statements about the petitioner to be distributed, and copy of which was given to an elector, Mr Benjamin Warwakai.
4. The issues for trial are:
Facts
5. The brief facts are that the writs were issued for election on 18th May 2012, nominations closed on 24th May 2012 and polling was to start on 23rd June 2012 and continue until 6th July 2012. The writs were returned on 27th July 2012. The petitioner was a candidate for the Alotau Open Electorate seat in the National Parliament in the election held between 18 May 2012 and 27 July 2012. At the declaration of the poll on 18 July 2012, the first respondent was declared elected having polled 15,071 votes. The petitioner was the fifth runner-up having polled 2,294 votes.
The Evidence
6. The trial proceeded by way of affidavit evidence and oral testimonies. The following affidavits were admitted into evidence: (i) affidavit of Lelena Metoa dated 8th October 2012 (Exhibit "P1"); (ii) affidavit of Damaina Johnsen dated 8th October 2012 (Exhibit "P2"); (iii) affidavit of Benjamin Warwakai dated 8th October 2012 (Exhibit "P3"); (iv) affidavit of Charles Abel dated 19th October 2012 (Exhibit "R1"); (v) affidavit of Charles Magari dated 18th October 2012 (Exhibit "R2"); and (vi) affidavit of Leleki Tarosomo dated 18th October 2012 (Exhibit "R3").
Petitioner
7. Lelena Metoa was the Chief Campaign Coordinator for the first respondent in the elections conducted between 18th May 2012 and 27th July 2012. As the Coordinator he accompanied the first respondent on all his election campaign appointments. He said on 27th May 2012, he accompanied the first respondent to Mukawa village where the first respondent made verbal attacks on the petitioner. The first respondent is alleged to have said the following: "Jimmy Maladina is a thief and a liar. He stole NPF monies and is using the monies to fund his campaign in this election. You people should not vote for him." On 28th May 2012, they moved to Boga-Boga where the first respondent made the same statement before a crowd of about 80 to 100 people. In both villages, the first respondent also gave food, pigs and money to people that provided entertainment during his campaign. He was present when the first respondent appointed his cousin Haro to carry bags of money to distribute to the villagers during the campaign. On the same day, they travelled to Ginada village where the first respondent gave money to entertainers and attacked the petitioner with much the same words he used in Mukawa and Boga-Boga villages. They then continued on to Tarakwaruru and Regiregi where a women's workshop was held and the first respondent gave K300 to the women's leader. In the afternoon, they arrived at Wabubu village where the first respondent handed K500 to the father of a boy that died recently and said: "Because you have gathered here and because you have allowed me to campaign here, I give you K500." On 29th May 2012, they travelled to Koiyabagira, Giwa and Menapi villages where the first respondent provided rice, flour, sugar and tinned food and stated that Jimmy Maladina was a thief and a liar and that he stole NPF monies and voters should not vote for him. They travelled back to Siri-Siri and drove to Kwamwaru village where a campaign rally was held attended by about 300 people. He told the crowd that Jimmy Maladina was a thief and a liar and that he stole NPF monies and the people should not vote for him. On 30th May 2012, they went to Raba-Raba Station and campaigned. On 31st May 2012, they campaigned at Nakara and on 1st June 2012 they went to Boienai to campaign and spent the night. In every campaign rally, including areas such as Dogura, Topura, Sibalai, Isudiudiu and Isudau, the first respondent would make his campaign speeches and tell the crowd in each area that Jimmy Maladina was a thief and a liar, that he was using NPF monies to fund his campaign and for this reason people should not vote for him.
8. On 11th June 2012, the first respondent's campaign team travelled to Alo-Alo village where the first respondent made his campaign speech in the United Church grounds in the presence of about 100 to 200 people. The first respondent is alleged to have said: "I have served you in Parliament for the last five years and done a lot for the Alotau Electorate and I think I am a good leader. Jimmy Maladina is a thief and a liar. He stole NPF monies and is using the monies to fund his campaign in this election. You people should not vote for him." He continued and concluded by saying: "Do not vote for Jimmy Maladina because he is a thief. I have been in Parliament for the last five years. I am a good leader. You must vote for a good leader." After the speech, the first respondent asked his cousin Haro, who took out K2, 500 in 100 kina notes, and gave them to him. The first respondent called the United Church Pastor, Charles Magari, to receive the money. When handing over the money, the first respondent is alleged to have said: "I do not give you this money to vote for me, but to vote for a good leader." A lady in the crowd stood up and said: "Thank you Charles, we will vote for you. We don't want to waste our time."
9. On 13th June 2012, while the campaign team was getting ready for the rally at Waigani Estate, Barbarra Abel, the first respondent's mother, gave members of the campaign team leaflets to hand out to people at the rally. This was done in the presence of the first respondent. While Barbarra Abel was giving out the leaflets, the first respondent is alleged to have said to his mother the following: "Mum you should not distribute these papers directly to voters because you are my mum and people know who you are, you must give these papers to other people and they will pass it on to voters in our district." The leaflet was printed on white paper and bore the following statement:
"ATTENTION: MR JIMMY MALADINA (NPF THIEF)
CAN YOU TELL ME WHERE MY NPF MONIES ARE BEFORE YOU COMPAIGN AGGRESSIVELY FOR OUR ALOTAU OPEN SEAT.
PLEASE TELL THE PEOPLE OF ALOTAU OPEN THAT YOU STOLE THEIR MONIES, WE WANT AN HONEST ANSWER BEFORE WE PUT OUR X FOR YOU.
CONCERN ALOTAU OPEN ELECORATE VOTER."
10. In one of the last campaign speeches prior to polling at Alotau and in the presence of the Prime Minister, the first respondent is alleged to have said to the crowd of approximately 1000 people, the following: "People flying in the chopper are thieves and liars. They stole NPF monies and are using the monies to fund their campaign in this election. You people should not vote for them."
11. In cross-examination, Mr. Metoa said the first respondent had visited Silo-Silo several times but the trip to Alo-Alo village was his first one. The first respondent went to Alo-Alo village to fulfil a promise he made some months earlier that he would give some money for the Church. The money was carried by Haro, who also counted it and handed it to the first respondent. The Pastor of the United Church received the sum of K2, 500 in cash for the Church.
12. He admitted receiving K5, 000 from the petitioner between May and June 2012. The money was for rice, flour, tin fish and other tinned food the petitioner got on credit from his mini-supermarket in the village. He said he left the first respondent because he was "spoiling" people and they had forgotten him. He was not able to indicate who the author of the statement in the leaflet was. He said the first respondent told his mother not to distribute the leaflet but let others do so.
13. Damaina Johnsen, the treasurer for Church Building, was present at the campaign rally at Alo-Alo village on 11th June 2012. On that day, Lelena Metoa and the first respondent's campaign team arrived in the afternoon and went to the Alo-Alo United Church where a podium had been set up in preparation for the first respondent's address. In his speech, the first respondent is alleged to have said: "When I become member again, I will help you people to complete your church building." The first respondent further told them: "Do not vote for Jimmy Maladina because he is a thief." The first respondent called the Pastor, Charles Magari, to the front and gave him K2, 500. The first respondent said: "When I give you this money, don't vote for me, vote for a good leader." After the presentation, a woman by the name Mahdi Jeffrey, an elector, said: "Thank you Charles, we will vote for you. We don't want to waste our time." The Pastor gave him (Damaina Johnsen) the money after a week. On 21st September 2012, he went to Milne Bay Hardware Limited in Alotau and purchased materials for the church.
14. In cross-examination, he was asked to explain why he signed two affidavits. He said he was forced to sign the first affidavit on 21st September 2012. He was also asked to explain why he did not state in the second affidavit that he was forced to sign the first affidavit. He said he went to the petitioner because he was not told in advance that he was going to sign the first affidavit. He also stated that the Pastor did not ask or tell anyone to vote for the first respondent, that the money was for the maintenance of the church and that the first respondent told the people to vote for a good leader.
15. Benjamin Warwakai is an elector from Ward 5 Ianeianene Ward, Huhu Local Level Government in Alotau Open Electorate. He said he was told by a man known as Kaimoni that the first respondent's Election Coordinator, Cooper Tabesa, had handed to him a leaflet regarding the petitioner. Kaimoni gave him the leaflet to read. After reading it he became very upset and took the leaflet to the petitioner.
16. In cross-examination, he said the leaflet was not given to him by Cooper Tabesa and he had no knowledge whether Cooper Tabesa was acting with authority or knowledge of the first respondent.
Respondents
17. The first respondent said he was re-elected for a second term as Member for Alotau Open by a margin of approximately 11,267 votes over the second placed Lisia Ilaibeni on 3,804 votes. The petitioner came in sixth place on 2,294 votes. The first witness, Lelena Metoa, was the first respondent's campaign manager throughout the election but joined the petitioner after being paid by the petitioner. Mr. Metoa also had two big arguments with the first respondent's other Election Co-ordinators and abused them in public and urged everyone to vote for the petitioner and Lisia Ilaibeni. The second witness, Damaina Johnsen, went to the first respondent's block in Alotau on or about 21st September 2012 and signed an affidavit. Several weeks later he went back to the first respondent's block and asked for some money, but the request was refused. Some days later he signed an affidavit for the petitioner on 8th October 2012.
18. As for the Alo-Alo Visit, the first respondent said the village is located in Silosilo Ward in the Suau Local Level Government. During his first term in Parliament he visited Silosilo three or four times. He delivered text books, a chainsaw, 23ft dinghy and 40 horse power outboard motors, HF radio to aid post, K5, 000 for aid post maintenance, K5, 000 for aid post orderly's house maintenance and K5, 000 for pastor's house maintenance. On his last visit to Silosilo the people from Aloalo village reminded him of their letter of request dated 5th October 2011 where they asked for funds to maintain the Aloalo Church building. He promised to help them with K2, 500 and told them to go to Alotau to collect but they failed to turn up. They instead asked him to go to the village to present the money. On 11th June 2012, he visited Aloalo village for the first time and presented the money to Pastor Charles Magari and told the people that he came to present the money for maintenance of the Church because they had invited him. He told them that it did not mean that they had to vote for him. He told them to vote for a good leader. He denied saying that the petitioner was a thief and that people should not vote for him at Aloalo or any of his election rallies. He said he did not have to go to Aloalo village to campaign and that Aloalo village was not on his campaign program. He went there to fulfil a commitment he made previously to help the Church, not to procure votes. He said he had helped every Church in Suau area and as Government money had been exhausted he gave his own money in Aloalo village.
19. On 12th June 2012, the first respondent's mother, Barbarra Abel, showed him a copy of the leaflet. The leaflet was taken off the public notice board by Ruth Basinauro and given to Barbarra Abel, who asked if she should photocopy and distribute them. He said to the mother that she should not get involved. He had no idea where the leaflet came from and gave no instructions to his workers to touch or copy or distribute it. The leaflet formed no part of his election campaign.
20. In cross-examination, the first respondent said he gave K2,500 to the Pastor for the Church, that the gathering at Aloalo village was a Church gathering of about 50 people not a campaign rally, that Aloalo village is a small village and he had no intention of going there, but for the commitment to help the Church, that he told the people to vote for a good leader, that he never told the people not to vote for the petitioner and that he was not sure if he got any vote from Aloalo village, but he polled well in the Suau area.
21. Charles Magari is the Church Pastor of Aloalo United Church. Aloalo village is in Silosilo Ward. He said the Church and the community of Aloalo requested financial assistance from the first respondent because he has helped Silosilo Ward by donating a dinghy, HF Radio, School textbooks, aid post maintenance, aid post orderly's house maintenance and pastor's house maintenance but Aloalo community and the Church have not received any project support or funding from the first respondent. So when the first respondent went to Silosilo to present the money for the pastor's house maintenance one of the village elders asked him for financial assistance. The first respondent made a personal commitment of K2,500 from his own funds to help Aloalo Church and before he (first respondent) left Silosilo he (first respondent) asked the Pastor and the community leaders to pick up the money from Alotau. They had not collected the money because of transport difficulties to Alotau from Aloalo and when they made it to Alotau the first respondent was not there. When the first respondent was campaigning at Isudau Ward the Church and the community of Aloalo invited him to the village. The amount of K2,500 was handed over when the first respondent came to the village at the invitation of the Church and the community of Aloalo. There were about 80 to 100 people at the gathering. In his speech, the first respondent said receiving the money during campaign time must not be seen as bribery to get votes and that the people must screen all the 32 candidates and select the leader who they think can serve the people better. The first respondent never said that Jimmy Maladina is a thief and the people should not vote for him.
22. In cross-examination, Pastor Magari said he is the spiritual leader, that the money was handed over to him in the presence of about 80 to 100 people, that the first respondent said to screen the 32 candidates and elect a good leader, that the first respondent never said that Jimmy Maladina was a thief, that this was the first time in 20 years for the Aloalo Church to receive financial assistance for maintenance of the church building and that they were happy with the donation.
23. Leleki Tarosomo is the Executive Officer for the first respondent. He said he was present with the first respondent in the office when Barbara Abel came into the office and informed them that there was a Public Notice concerning Jimmy Maladina pinned on the Public Notice Board at Masurina Business Centre and asked if she should copy it and hand it out to the general public. The first respondent told her not to do it because she is the mother and the petitioner will blame him for doing so. During the rally at Waigani Estate on 13th June 2012, no leaflets were handed out by Barbara Abel or anyone in the first respondent's campaign team and if any leaflets were in fact given out, it must have been done by others without the approval and knowledge of the first respondent. In his speech, the first respondent made no mention of any distributed leaflets concerning Jimmy Maladina.
24. That is the evidence before me. Who do I believe? The principal witnesses for the petitioner were Lelena Metoa and Damaina Johnsen.
25. Lelena Metoa was the Campaign Manager for the first respondent throughout the election but joined the petitioner subsequently as a witness. It is not known when he joined the petitioner, but what is certain is that he received K5, 000 from the petitioner. He admitted that the petitioner paid into his bank account K2, 000 on 21st May 2012 and K3, 000 on 21st June 2012. In cross-examination, Mr. Metoa said he left the first respondent because they had forgotten him, and that he was "spoiling" people particularly the petitioner. I do not know what he meant by "spoiling" but in the context of the election, it may well be that he was not happy about negative things being said about candidates or people in the elections. There is no evidence that he complained about these things to anyone. In re-examination, Mr. Metoa said he was promised K5, 000 by the first respondent but the money was not given to him. This may explain his evidence that he was forgotten. He certainly received K5, 000 from the petitioner. Counsel for the first respondent invited me to infer that the money he received from the petitioner was a bribe or for payment for him to switch sides and give evidence for the petitioner. He further submitted that the credibility of the witness is seriously in question.
26. I am inclined to agree with counsel for the first respondent that Lelena Metoa is not a credible witness. I observed his demeanour in the witness box and the way in which he gave his evidence. I am not able to accept his evidence on the issues of this case.
27. Damaina Johnsen signed two affidavits; one for the first respondent at the first respondent's place on 21st September 2012 and the other for the petitioner on 8th October 2012, which was admitted into evidence. In cross-examination, he said he was "forced" to sign the affidavit for the first respondent but was not able to demonstrate how he was forced. He never deposed in the second affidavit that he was forced to sign the first affidavit. His explanation was vague and unimpressive. There is evidence from the first respondent that after signing the affidavit on 21st September 2012, the witness went to the first respondent's block and asked for money, but the request was refused. Some days later he signed the affidavit for the petitioner on 8th October 2012. I do not consider the witness to be a credible or truthful witness.
28. I consider the first respondent, Pastor Charles Magari and Leleki Tarosomo to be credible witnesses. I prefer their evidence over the evidence of Lelena Metoa and Damaina Johnsen.
Findings
29. I find that on 11th June 2012 at Aloalo village the first respondent gave K2, 500 to Pastor Magari, that Aloalo United Church had requested financial assistance for the maintenance of the church building from the first respondent, who accepted the request and committed his own money for maintenance of the church, that the money was used to purchase materials for maintenance of the church, that the first respondent had assisted many churches in the Suau area during his first term as Member for Alotau Open and that the statement in the leaflet was not made or written by the first respondent nor did he authorise the distribution of the leaflets.
The Law
30. Section 215(1) of the Organic Law on National And Local - Level Government Elections (hereafter referred to as the Organic Law) provides:
"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."
31. In relation to bribery Section 103 of the Criminal Code provides:
"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 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.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."
32. In the recent case of Peter Isoaimo v Paru Aihi & The Electoral Commission (2012) N4921, His Honour Justice Cannings said at page 6:
"Because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a petitioner must specify what particular bribery offences are alleged to have been committed. In the present case the petitioner argues that the first respondent committed bribery under Sections 103 (a) (iii) and 103 (d) of the Criminal Code."
33. In the present case, the petitioner argues that the first respondent committed bribery under Sections 103(a)(iii) and 103 (d) of the Criminal Code.
34. In the Peter Isoaimo v Paru Aihi & The Electoral Commission (supra), His Honour Cannings J set out the elements of section 103 (a) (iii) and 103 (d) as follows:
"Section 103 (a) (iii)
To prove an offence under Section 103 (a) (iii) the petitioner must prove that the first respondent:
1. gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;
2. any property or benefit of any kind;
3. in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at an election.
Section 103 (d)
To prove an offence under Section 103 (d) the petitioner must prove that the first respondent:
1. advanced or paid any money to or to the use of any other person;
2. with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in the discharge or repayment of money wholly or in part applied for any such purpose (ie the money must be applied for the purpose of endeavouring to procure the return of any person (the first respondent) at an election or the vote of any elector at an election (paras (a) and (c)) or doing or omitting to do something at an election in the capacity of an elector (para (b))."
Section 102 of the Criminal Code created the offence of undue influence. It states:
"A person who -
(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector -
(i) in order to induce him to vote or retrain form voting at an election; or
(ii) on account of his having voted or refrained from voting at an election; or
(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election..."
35. The petitioner relies on section 102 (b) of the Criminal Code. The elements of the offence are:
(a) by fraud; ie. Dishonesty
(b) prevents or obstructs the free exercise of the franchise by an elector.
In Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Frost CJ said at 303:
"Turning to s.102 (b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it."
36. The petitioner always bears the burden of proof (see Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto (supra); Paru Aihi v Moi Avei (2004) N2523; Ben Micah v Ian Ling-Stuckey (1998) N1790).
37. The standard of proof was settled By Frost CJ in Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto (supra). He held that:
"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."
38. Since bribery and undue influence are very serious allegations involving criminal offences, the standard of proof is equivalent to the criminal standard of proof (see Polye v Sauk (1999) N1860; Micah v Ling-Stuckey (supra); Aihi v Avei (supra); Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463). I will apply the criminal standard of proof.
39. 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 Criminal Code deals with corrupt and improper practices at elections and offences against administration of law and justice. There can be no bribery if the petitioner could not strictly prove the corrupt or unlawful intent to induce another, and only one act of bribery needs to be proven, for a petition to succeed and an entire election declared void. In Agonia v Karo (supra), Sheehan, J 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."
Issue 1 - Whether the first respondent committed bribery pursuant to section 103 of the Criminal Code, when he gave K 2, 500.00 cash to the Aloalo United Church in the presence of electors to induce the electors to vote for him in the 2012 national elections.
40. There is no dispute that the first respondent gave K2, 500 to Pastor Charles Magari at Aloalo village on 11th June 2012.
41. Counsel for the first respondent submitted that the sum of K2, 500 was given to the Church, an institution, and was received by Pastor Magari as an agent for and on behalf of the institution. It was not given to the Pastor as an individual person or elector but was given to him as the agent of the church. Accordingly, the key element of the money being received by a person is not satisfied. He submitted further that if the court considers that Pastor Magari received the money as a person and not as an agent of the church, no evidence is produced to show that he was an elector whose name appears on the Common Roll as defined under s. 3(1) of the Organic Law and that bribery can only be committed on an elector who is registered on the Common Roll and who has the right to vote (see Ben Micah v Ian Ling Stuckey (1998) N1780). He concedes that the K2, 500 given on 11th June 2012 was property and a benefit that was given or conferred by the first respondent.
42. I find that the first two elements have been established in that the first respondent (1) conferred on Pastor Magari (2) a benefit (K2, 500). The third element is intention and it must be established that the procurer of the benefit acted with some criminal intent, in particular the intention to bribe voters (Desmond Baira v Kilroy Genia (1998) SC579). The petitioner is required to establish intention beyond reasonable doubt.
43. Counsel for the petitioner submitted that the giving of the money was done by the first respondent in order to induce the Pastor to endeavour to procure the return of the first respondent at the election or the vote of any elector at the election. The inference arises from the following actions of the first respondent: (i) the first respondent was engaged in an election campaign when he presented the money to the Pastor; (ii) the money was physically handed to Pastor Magari in cash; (iii) the cash given was not public money for public purposes such as JDP cheques and therefore had no trappings of legitimacy or propriety; (iv) the cash was a personal gift from the first respondent with no legal or practical obligation; (v) the cash was handed out in the course of a campaign event to people, most of whom were electors, immediately after a political speech in the campaign by the first respondent; (vi) the distribution of the cash was stage-managed as a public event to enhance the standing of the first respondent in the eyes of those present; (vii) the first respondent decided on the amount to be distributed and the recipient; (viii) distribution of cash at Aloalo village in this manner by the first respondent is unprecedented; (ix) the handing out of the cash took place on the grounds of the United Church. This is extremely significant as it is the centre of the villagers' lives where they come to hear the truth. Nothing could be calculated to influence the electors than to conduct the giving of this cash; (x) the cash was handed to Pastor Magari who is clearly a person who has the wholehearted following of his villagers. Nobody could be more influential over the villagers than him; and (xi) the comment of the first respondent to vote for good leaders is simply a thinly veiled statement to vote for him. He submitted further that the natural, ordinary and irresistible inference from these circumstances is that the cash was handed out by the first respondent in an attempt to improperly buy votes with cash and that this was his real intention and referred me to Peter Isoaimo v Paru Aihi (supra).
44. Counsel for the first respondent submitted that the petitioner has not proven the element of intention to the criminal standard. He urged the Court to note that Lelena Metoa was an untruthful witness whose credibility was in question because he was receiving money from the petitioner while campaigning for the first respondent. The evidence of Damaina Johnsen was also doubtful because he had sworn two conflicting affidavits and there was no evidence to support his assertion that he was forced to sign the affidavit in support of the first respondent. He submitted further that the first respondent was a truthful witness, that the evidence shows that he had a record of assisting churches in his electorate with many projects during his term in office, that there was no premeditated, sinister or underhand move to obtain votes through bribery, that the first respondent responded to a request for financial assistance and he donated his own money to help repair the Aloalo church. He referred me to the decision of Amet J (as he then was) in Komo-Magarima Open Parliamentary Election – Kaiabe v Makiba (1989) N723.
45. In his evidence, the first respondent said that he did not have to go to Aloalo village to seek votes as he had done enough to win in the Suau area. He went to Aloalo village because of the request by the Church and the community and the commitment he made to assist the church. He said he had assisted all churches in the Suau area. This evidence was not disputed. In the case of the Fishermen's Island [1979] PNGLR 202 Wilson J made the following comments regarding weighing and assessing of evidence:
"in any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence [or part of the evidence] of one and why he accepts that of the other. Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness who is the only witness before the court or Judicial Tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it." (Emphasis added).
46. I believe this piece of evidence that the first respondent had assisted all churches in the Suau area is significant because it shows the mindset or the attitude of the first respondent. It is not out of character for him to assist churches, and taking into account the family history and its association with the churches, I believe he had no sinister motive in assisting the Aloalo church. There was a request for financial assistance from the Church, and an invitation from the Church and the community of Aloalo village for him to go to the village and witness for himself the state of the church. He made a commitment to assist the church, and accepted the invitation to attend the village during the campaign period. He obviously made a speech asking the people to elect a good leader. The cash was not intended for individuals but for the church and was used for the purpose of purchasing material for the maintenance of the church. He did not ask the Aloalo villagers for their votes in return for the cash. I do not believe that these circumstances demonstrate a criminal intent. It may be morally and ethically improper and shows poor judgment on the part of the first respondent to give a gift during the campaign period but I am unable to attach a criminal intent to the conduct. I am not satisfied that the first respondent assisted the church with the intention to bribe voters.
47. This case can be distinguished from Peter Isoaimo v Paru Aihi (supra). In that case Veifa'a villagers did not support the first respondent in the previous election and he deliberately included the village in his election campaign to enhance his standing in the eyes of the villagers. His Honour Cannings J said:
"The evidence was that Veifa'a had not supported the first respondent in previous elections so it makes political and common sense that he would want to visit the village as part of his campaign and to highlight his achievements and to make a good impression on the voters. The only reasonable inference to be drawn from the evidence is that the visit was part of his election campaign."
48. In this case, the first respondent said that Aloalo village was not in his election plan as it is a small village with an insignificant number of voters. However, he attended the village because of the request for financial assistance, the invitation from the Church and the community of Aloalo and his desire to fulfil the commitment he made to assist the church.
Issues 2 & 3 - Whether the first respondent committed undue influence pursuant to section 102 of the Criminal Code by stating the petitioner was a thief, knowingly making a false statement of fact with the intent of unlawfully interfering with the free voting of electors, in order to corruptly induce electors of Alotau Open Electorate to vote for the first respondent. Secondly, whether the first respondent committed undue influence pursuant to section 102 of the Criminal Code, when a leaflet stating the petitioner was a thief was distributed by agents of the first respondent with the knowledge and authority of the first respondent, to electors, with the intent to fraudulently prevent the free exercise of the franchise of electors.
49. Counsel for the petitioner made no submissions on undue influence. The petitioner alleges that on 11th June 2012 at Aloalo village the first respondent held a campaign rally and during his speech he called the petitioner a thief. Secondly, the petitioner alleges that the first respondent committed undue influence when he authorised the distribution of leaflets containing fraudulent statements about the petitioner to be distributed.
50. Counsel for the first respondent made the following submissions: (i) the petitioner failed to show who the electors were that were unduly influenced by the words allegedly used by the first respondent at Aloalo village on 11th June 2012; (ii) the petitioner failed to produce the original Common Roll to prove that Lelena Metoa and Damaina Johnsen were in fact electors; and (iii) the petitioner failed to prove that the first respondent was the author of the leaflets that were issued. Counsel urged the Court to believe the evidence of the first respondent that he in fact never uttered any words constituting undue influence at Aloalo village on 11th June 2012 and that he had nothing whatsoever to do with the leaflets.
51. I am satisfied that there were voters at Aloalo village on 11th June 2012 and that Lelena Metoa and Damaina Johnsen are voters. I accept the evidence of the first respondent, Pastor Magari and Leleki Tarosomo. I attach no weight to the evidence of Lelena Metoa and Damaina Johnsen on this issue. I am not satisfied that the first respondent called the petitioner a thief at Aloalo village or at the rally at Waigani Estate. The petitioner has also failed to prove that the first respondent was the author of the statement on the leaflet and that the leaflets were distributed with the authority and knowledge of the first respondent at Waigani Estate on 13th June 2012 or at any other place in the Alotau Open Electorate.
52. For all the reasons in the judgment, I dismiss the petition with costs to be agreed if not to be taxed.
______________________________________
Young & Williams: Lawyers for the Petitioner
Dotaona Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent
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