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Isoaimo v Aihi [2012] PGNC 391; N4921 (3 December 2012)

N4921

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 72 0F 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONSAND IN THE MATTER OF A DISPUTED RETURN FOR THE KAIRUKU-HIRI OPEN ELECTORATE

PETER ISOAIMO
Petitioner

V

PARU AIHI
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2012: 26, 27, 28 November, 3 December

ELECTIONS – petitions – validity of return of a member of the National Parliament disputed by petition – ground of "bribery": Organic Law on National and Local-level Government Elections, Section 215 – elements of criminal offence of bribery: Criminal Code, Section 103 – standard of proof: beyond reasonable doubt

The petitioner challenged the return of the first respondent as sitting member on the ground of bribery under Section 215 of the Organic Law on National and Local-level Government Elections, alleged to be constituted by payments of cash and/or cheques in connection with two series of events at different villages. The first event was a sport tournament. It was alleged that the first respondent initiated the tournament and provided K5,000.00 cash funding for it and attended it and made a political speech and gave K1,000.00 cash to an elector (one of the tournament organisers) in order to induce that person and other electors at that village to endeavour to procure the return of the first respondent at the forthcoming general election. The second event was a visit to a village as part of his election campaign during which he announced that he had brought money to the village and distributed cash and cheques totalling K10,500.00 to various electors in order to induce them and other electors at that village to endeavour to procure his return at the forthcoming general election. It was undisputed that the first respondent was present on the two occasions but as to the first occasion he denied handing out cash in the manner alleged and as to the second occasion he agreed that some cash and cheques was distributed but denied that he distributed it or that it was distributed in order to induce the recipients and other electors at that village to endeavour to procure his return at the forthcoming general election.

Held:

(1) An election will be declared void if the Court finds for the purposes of Section 215(1) of the Organic Law that a candidate has committed or has attempted to commit bribery.

(2) "Bribery" in Section 215 means one of the offences of bribery created by Section 103 of the Criminal Code, which means that the petitioner has the burden of proving beyond reasonable doubt that one of those offences was committed by the successful candidate.

(3) Here the petitioner alleged commission on two occasions of offences under Sections 103(a)(iii) and 103(d) of the Criminal Code.

(4) As to the first event (bribery allegedly constituted by providing K5,000.00 funding to a sport tournament and giving K1,000.00 cash to an elector) the petitioner failed to prove as to the funding (proven only to the extent of K2,500.00) that the first respondent acted with criminal intent and as to the K1,000.00 failed to prove that such, or any, cash was given out. The bribery allegation failed.

(5) As to the second event (bribery allegedly constituted by giving K10,500.00 in cash and cheques to various electors) the petitioner proved beyond reasonable doubt that the first respondent committed the offence of bribery contrary to Sections 103(a)(iii) and 103(d) of the Criminal Code in two distinct ways: conferring K6,500.00 cash in a planned distribution to various persons and conferring K1,000.00 cash on two individuals in an unplanned distribution of cash.

(6) The first respondent, being a candidate at the 2012 general election, committed bribery and because he was the successful candidate his election was declared void.

Cases cited

The following cases are cited in the judgment:

Benny Diau v Mathew Gubag (2004) SC775
Desmond Baira v Kilroy Genia (1998) SC579
Labi Amaiu v Andrew Mald (2008) N3335
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Robert Kopaol v Philemon Embel (2003) SC727
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

TRIAL

This was the trial of an election petition disputing the validity of the election of the sitting member at a general election.

Terminology and dates

In this judgment:

• 'the Organic Law' refers to the Organic Law on National and Local-level Government Elections;
• dates refer to the year 2012 unless otherwise indicated.
  

Counsel

G J Sheppard, for the petitioner
I R Shepherd & E Wamp, for the first respondent
T Dalid, for the second respondent

3 December, 2012

1. CANNINGS J: The petitioner Mr Peter Isoaimo has filed a petition disputing the election of the first respondent Mr Paru Aihi as the member for Kairuku-Hiri Open in the 2012 general election. This is a ruling on the petition. The petitioner challenges the return of the first respondent as sitting member on the ground of bribery under Section 215(1) (voiding election for illegal practices) of the Organic Law on National and Local-level Government Elections, which 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.

2. The alleged bribery is constituted by payments of cash and/or cheques on two occasions at different villages.

3. The first set of allegations relates to events at a volleyball tournament at Vanapa village on 2 June. It is alleged that the first respondent gave K1,000.00 cash to one of the tournament organisers and told him the money was for the registration fee for a forthcoming tournament in Alotau and that the intention of the first respondent was to induce the recipient and other electors at that village to endeavour to procure the return of the first respondent at the 2012 general election.

4. The second set of allegations relates to a visit by the first respondent and others to Veifa'a village on 26 May. It is alleged that the first respondent visited the village as part of his election campaign, announced that he had brought money to the village and then distributed cash and cheques totalling K10,500.00 to various people, his intention being to induce those people and other electors at that village to endeavour to procure his return at the 2012 general election.

5. The first respondent does not dispute that he was present at the two villages on the dates mentioned. However, as to the Vanapa allegations he denies handing out cash in the manner alleged; and as to the Veifa'a allegations though he agrees that some cash and cheques was distributed he denies distributing the money and denies that the money was distributed in order to induce the recipients and other electors at that village to endeavour to procure his return at the forthcoming general election.

6. This judgment begins by setting out the undisputed facts before detailed consideration is given to the two sets of allegations.

UNDISPUTED FACTS

7. A number of undisputed facts have emerged from the evidence:

• The first respondent was elected to the National Parliament as the member for Kairuku-Hiri Open in the 2007 general election. He contested the 2012 general election as the sitting member.
  
• Nominations for the 2012 general election closed on 24 May. Polling day for Kairuku-Hiri was in June. The events that are at the centre of the alleged acts of bribery occurred during the campaign period.
  
• Accompanying the first respondent to Veifa'a on 26 May was a group of political supporters including his first secretary Paul Aisa and the President of Mekeo-Kuni Local-level Government Mr Simon Ake. Local youths had erected a road block to prevent the first respondent and his group from entering the village. After a commotion the road block was removed and the first respondent and his group entered the village. He made a speech, saying that he had come to explain the whereabouts of money promised by the then Prime Minister Grand Chief Sir Michael Somare who had visited the village in December 2010 and informing the people of his achievements over the last five years. Cash and cheques were distributed at the gathering.
  
• Prior to the volleyball tournament at Vanapa, on 23 May, the first respondent met with some of the tournament organisers at the Ela Beach Hotel, Port Moresby. He sponsored the tournament by providing K5,000.00 to the tournament organisers. He attended the tournament on 2 or 3 June. He made a speech and informed those present of his achievements over the last five years. He agreed to provide K1,000.00 towards the costs of a team from Vanapa that was planning to attend a tournament in Alotau.
  
• On 25 July the first respondent was declared as the candidate elected with 12,887 votes. The petitioner was runner-up with 11,725 votes.
  

WHAT IS "BRIBERY"?

8. It is settled law that "bribery" in Section 215 means one of the offences of bribery created by Section 103 (bribery) of the Criminal Code. The petitioner has the burden of proving according to the criminal standard of proof of beyond reasonable doubt that one of those offences was committed by the successful candidate (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, Sir Arnold Amet v Peter Charles Yama (2010) SC1064). Section 103 is a very complex provision, which states:

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.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

9. 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.

Section 103(a)(iii)

10. 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)

11. 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 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)).
   

FIRST EVENT: ALLEGED BRIBERY BY THE FIRST RESPONDENT IN CONNECTION WITH THE VANAPA VOLLEYBALL TOURNAMENT

12. To determine whether the petitioner has proven that the first respondent committed bribery at Vanapa it is necessary to first set out the competing evidence, and then to weigh the evidence and make findings of fact before determining whether all elements of bribery have been proven beyond reasonable doubt.

Evidence for the petitioner

13. Two witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

Evidence for the first respondent

14. Five witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

Findings of fact

Who initiated the tournament?

15. I find that it was the organising committee led by Amedio Kaikai and Bona Ine'e. The evidence of the first respondent's witnesses was strong and consistent on that point. They were vigorously cross-examined by counsel for the petitioner, Mr Sheppard, and despite their inability to produce the letter to the first respondent dated 18 May and some of them, notably Mr Kaikai and Mr Ine'e, appearing to be evasive in their answers and to be giving contradictory answers, I felt that this was more a product of nervousness and a genuine difficulty in understanding the questions of the cross-examiner than any deliberate false testimony. I consider that the credibility of their evidence was left intact.

16. The only contrary direct evidence was by the petitioner's witness, John Gorogo Moi, who attended the meeting at Ela Beach Hotel, but it was uncorroborated as the other witness for the petitioner, George Veidia Suru, did not attend the meeting and his evidence that Amedio Kaikai told him that the first respondent wanted them to organise a tournament was hearsay. I reject as unreliable the evidence that the first respondent initiated the tournament.

Did the first respondent sponsor the tournament?

17. I find that the first respondent provided sponsorship for the tournament in the form of K2,500.00 cash, which was used to purchase equipment. I accept the uncontradicted evidence of Mr Moi and Mr Suru that the provision of this sort of funding by the first respondent was unprecedented. I accept the evidence of Amedio Kaikai, who presented as a credible witness, that he, not Mr Moi, was the tournament director and that the cash came from the first respondent's office and that it was given to Bona Ine'e and that it was used to purchase equipment such as nets and balls. I find that Mr Kaikai and Mr Ine'e were on the common roll and were electors.

18. I reject as hearsay the evidence of Mr Moi that the amount was K5,000.00 as he did not testify that he received that amount or that he saw that amount being received. Mr Moi's evidence was uncorroborated as the evidence of the other witness for the petitioner, Mr Suru, did not address the amount of funding.

Attendance at tournament

19. I find that the first respondent attended the volleyball tournament on invitation from the tournament organisers. However, a sitting member's attendance at such a tournament during the campaign period for an election and his making a political speech can only result in the finding that the funding of the tournament and attendance were part of his election campaign.

The K1,000.00 cash allegation

20. Mr Moi's evidence that the first respondent handed K1,000.00 cash to Amedio Kaikai at Vanapa was uncorroborated. There was no evidence by Mr Suru on that subject. I find that after the first respondent finished his speech Jack Vaburi, one of the referees, asked him for K1,000.00 assistance towards getting a Vanapa team to the forthcoming tournament in Alotau. The first respondent denied giving any cash and I accept his denial, as he presented as a credible witness, and his evidence was corroborated by the evidence of Bona Ine'e, Amedio Kaikai and Thaddius Aiva Mana, which withstood cross-examination.

21. The person who asked for the money, Mr Vaburi, did not give evidence and this made it difficult for the petitioner to prove that the transaction took place as alleged (Labi Amaiu v Andrew Mald (2008) N3335). I find that the first respondent did not give out any cash at Vanapa on the day of his visit (whether it was on 2 or 3 June is unclear, but the exact date is immaterial) and that no member of his group gave out cash either (as there was no evidence of that).

22. Those are the court's general findings of fact. I will now address the elements of the offences alleged against the first respondent.

Criminal Code, Section 103(a)(iii)

Elements

23. As explained earlier it must be proven that the first respondent:

1. gave, conferred or procured ... 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 the first respondent at the election or the vote of any elector at the election.
   

Sponsorship of tournament

24. The first two elements have been established in that the first respondent (1) procured for various persons (the volleyball tournament organising committee), (2) a benefit (in the form of K2,500.00 cash as funding for the tournament).

25. The third element is not established as it has not been proven beyond reasonable doubt that the first respondent sponsored the tournament in order "to induce" any person to endeavour to procure his return at the 2012 general election or the vote of any elector at that election. The fact that the funding, which was unprecedented, was provided during the campaign period or that it could be regarded as good politics for the first respondent to be seen to be sponsoring a sport tournament in a village that had not supported him in the past does not force the conclusion that the purpose of the funding was to induce the villagers to vote for him.

26. The opinion of Mr Moi that the first respondent sponsored the tournament to induce him and other electors to vote for him, carries little weight. The opposite opinion was expressed by the first respondent's witnesses. The word "induce" in Section 103(a)(iii) suggests that it must be proven that the procurer of the benefit acted with some criminal intent, in particular the intention to bribe someone (Desmond Baira v Kilroy Genia (1998) SC579). I am not satisfied that that was the state of mind of the first respondent. He responded to a request from the organising committee to sponsor a tournament and he accepted an invitation from the committee to attend the village. The request and the invitation and the first respondent's response and his attendance at the tournament, including his making of a political speech during the campaign period, are in my view unremarkable and in all the circumstances do not demonstrate a criminal intent.

Alleged K1,000.00 payment

27. As for the alleged payment of K1,000.00 cash at Vanapa none of the elements have been established due to the court's finding that no cash changed hands in the manner alleged.

Criminal Code, Section 103(d)

Elements

28. As explained earlier it must be proven 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 prescribed purposes, eg endeavouring to procure his return at the election or the vote of any elector at the election.
   

Sponsorship of tournament

29. The first element has been established in that the first respondent advanced money (in the form of K2,500.00 cash as funding for the tournament) to the organising committee.

30. The second element is not established as it has not been proven beyond reasonable doubt that the money was advanced with the intent that it be applied for any of the purposes referred to in Sections 103(a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose.

31. I am satisfied that the money was applied for the principal purpose of procuring sports equipment and for other proper purposes connected with holding a sport tournament. It was not applied for the principal purpose of endeavouring to procure the return of the first respondent at the election or the votes of electors at the election or getting electors to do or omit to do something at the election in their capacity as electors. Though the need to secure votes at Vanapa may have been a motivation in the first respondent's decision to provide funding for the tournament that does not make the purpose of his advancing the money criminal in character, which is really what has to be proven.

Alleged K1,000.00 payment

32. Neither of the elements has been established due to the court's finding that no cash changed hands in the manner alleged.

Conclusion re the Vanapa allegations

33. It has not been proven that the first respondent committed the offence of bribery under Sections 103(a)(iii) or 103(d) of the Criminal Code or in any other way.

SECOND EVENT: ALLEGED BRIBERY BY THE FIRST RESPONDENT IN CONNECTION WITH THE VISIT TO VEIFA'A

Evidence for the petitioner

34. Two witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

Evidence for the first respondent

35. Four witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

Findings of fact

Purpose of visit

36. The first respondent, in the company of his First Secretary Paul Aisa and the President of Mekeo-Kuni LLG Simon Ake and police and security personnel and others visited Veifa'a village on the afternoon of 26 May. The visit was made on the invitation of Joe Ifagai Ivan, a youth leader and a member of the first respondent's campaign committee. I find that the purpose of the visit was to advance the first respondent's campaign for re-election. His evidence that he was not campaigning and not thinking about the election on that day is not credible. The visit was made during the campaign period. It was a big occasion in the village attended by many villagers.

37. During the course of the visit the first respondent made a speech in which he highlighted his achievements as member for Kairuku-Hiri over the previous five years. It is unclear whether he said that he was the only candidate who knows or understands politics. Whether he did or didn't is immaterial. The evidence of the petitioner's witness James Aisa that the visit was preceded by news that the first respondent would be coming later that day to make his campaign speech was not contradicted. In fact it was corroborated by the first respondent's own witnesses: Peter Maino said that the first respondent visited Veifa'a 'to conduct his campaign' and Simon Ake by explaining that he had accompanied the first respondent on most of his political rallies in Mekeo implied that he was treating the Veifa'a visit as a similar event.

38. 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.

39. There was some opposition to his visit as some people were of the view that the first respondent had done little for Veifa'a during his term as an MP. A roadblock was erected by some youths in an attempt to prevent his entry to the village but it was removed by police and security personnel. Two women covered themselves in mud as a protest against the poor condition of the road to the village.

The first respondent's speech

40. A platform had been erected in the village and the first respondent was taken there to make a speech. Joe Ifagai Ivan was the master of ceremonies. There was a series of speeches and the first respondent's was the keynote address. I do not accept the first respondent's evidence that he made it clear to the villagers that he was not there to campaign. The clear inference to be drawn from the evidence of all other witnesses is that he made a political speech highlighting his achievements as an MP. It was a campaign speech.

41. I find that towards the end of his speech he said that he had 'brought some money' to honour commitments to groups who had provided entertainment and services to Sir Michael Somare during his December 2010 visit, as Prime Minister, to Veifa'a. I also find that the first respondent indicated that the payments that were about to be made were not meant as a bribe or an inducement for the electors to vote for him. The evidence of the first respondent's witnesses was strong and consistent on that point and was not contradicted by the petitioner's witnesses.

Distribution of money

42. Detailed evidence as to the amounts distributed and the recipients came from the petitioner's witness James Aisa, and it was largely unchallenged. I find that the money that the first respondent was referring to was distributed as follows:

Cash

• K2,500.00 cash to Veifa'a Chiefs Association (given to the chairman, George Lala);
• K2,500.00 cash to Veifa'a Mothers Group (given to its representative, Natasha Maino, an elector);
• K500.00 cash to Jose Diaz Catholic Elementary School (given to head teacher, Michael Aukoae, an elector);
• K500.00 cash to Wings of Love Elementary School (given to the treasurer, Paul Akaina, an elector);
• K500.00 cash to Fopa Adventist Elementary School (given to head teacher, George Aufa, an elector);
  

Cheques

• K1,000.00 cheque to Jose Diaz Catholic Elementary School;
• K1,000.00 cheque to Wings of Love Elementary School;
• K1,000.00 cheque to Fopa Adventist Elementary School.
  

43. I find that the distribution of that money was a planned exercise, intended to enhance the standing of the first respondent in the eyes of the villagers, including the electors, at Veifa'a.

44. There was also some money distributed that was unplanned:

Cash

• K500.00 cash to Aoka Mauni, an elector, on behalf of the disgruntled youths who had erected the roadblock;
  
• K500.00 to Maryaine Mauni, one of the two woman who had covered themselves in mud in protest over the poor condition of the village road, who was told that she was to share the money with the other woman.
  

Breakup

44. A total of K10,500.00 was distributed of which K9,500.00 was planned and K1,000.00 was unplanned. Put another way: of the K10,500.00, K7,500.00 was distributed in cash and K3,000.00 in cheques.

Who physically distributed the money?

45. I accept the evidence of the first respondent that he did not physically distribute the cash or the cheques. His denial was vehement and this part of his evidence, unlike some other parts, was impressive. It was corroborated by all his witnesses. I reject the evidence of James Aisa for the petitioner on this point. It was unimpressive and uncorroborated.

46. I find that the first respondent's first secretary Paul Aisa handed out all the cash and that the Mekeo-Kuni LLG President Simon Ake handed out the three cheques. Further details of the cheques are sketchy. Neither the originals nor copies of them were in evidence. It is unclear who signed them and on what bank account they were drawn.

Source of money

47. As to the source of the cash, I find that it is unknown and unclear. I am sceptical of the claim that it came from Sir Michael Somare. There was no evidence that the Grand Chief was its source other than assertions by the first respondent and his witnesses. There was no paperwork to support the assertion and no evidence by Sir Michael was adduced. It was such a vague assertion it would be unfair to impose on the petitioner any burden of disproving it. It seems such an easy thing to prove – it is claimed to be public money, so there should be a paper trail leading to its source – so the absence of corroboration results in suspicion, and an open finding.

48. Why did it take 17 months for those commitments to be attended to? The first respondent's witnesses are his political associates. Peter Maino and Joe Ifagai Ivan were members of his campaign committee. Simon Ake is a member of the JDPBPC, chaired by the first respondent, and accompanied him throughout Mekeo assisting him with his campaign. There is no independent evidence to corroborate their assertion that those payments were for commitments made during Sir Michael's visit in December 2010.

49. Even if it is accepted that the bulk of the cash came from Sir Michael, where did the K1,000.00 paid to the youths and the mud-covered women come from? This is a mystery.

50. As to the source of the cheques, I find that the cheques were drawn against an account in the name of the Mekeo-Kuni LLG. I accept the evidence of Mr Ake in that regard.

Who decided on the amounts and recipients of the money?

51. I reject as not credible the first respondent's evidence (and that of Mr Ifagai) that he had nothing to do with it. The only reasonable inference to draw from the evidence is that this was a political event taking place in the middle of an election campaign and that distribution of at least K9,500.00 was planned by the first respondent in collaboration with his political supporters and campaign committee members (Mr Aisa and the witnesses who gave evidence for the first respondent) and stage-managed to enhance the standing of the first respondent in the context of a political campaign.

52. The decision as to who would receive money and how much each group received could only reasonably have been made by the first respondent in collaboration with his important political supporters and committee members. Mr Aisa was a member of his staff and although there is evidence that he took control of the cash distribution in his capacity as president of the Chiefs' Association, Mr Aisa, who was not called as a witness, did not give evidence to rebut the inexorable inference that he was acting on the instructions of his boss, the first respondent. Mr Ake was and is a political supporter of the first respondent and the inference that he would have acted on the instructions of his leader applies equally as strongly to his distribution of the cheques.

53. Those are the court's general findings of fact. I will now address the elements of the offences alleged against the first respondent.

Criminal Code, Section 103(a)(iii)

Elements

54. As explained earlier it must be proven that the first respondent:

1. gave, conferred or procured ... 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 the first respondent at the election or the vote of any elector at the election.
   

The planned distribution: K6,500.00 cash + K3,000.00 cheques

55. The first two elements are clearly established in that the first respondent (1) conferred on various persons (the various groups and schools represented by the physical recipients) (2) benefits (in the form of cash or cheques).

56. The third element is contentious. Putting aside for a moment the three cheques in the amount of K1,000.00 each (which, the evidence suggests, were LLG cheques handed out by the LLG President Mr Ake and therefore have trappings of legitimacy and propriety) and focussing on the distribution of K6,500.00 cash, there are several aspects of the facts to highlight, which support the petitioner's case:

• the cash is of unknown origin (in view of the court's rejection of the assertion that the cash came from Sir Michael Somare);
  
• 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;
  
• 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;
  
• the first respondent decided on the amounts to be distributed and the recipients;
  
• the cash was distributed as a gift, evidently with no legal or practical obligation imposed on the recipients to acquit it or account for its proper application;
  
• distribution of cash at Veifa'a in this manner by the first respondent was unprecedented;
  
• Veifa'a had not supported him in previous elections.
  

57. Those facts give rise to the inference that the intention of the first respondent in distributing the cash was "to induce" the recipients and the villagers generally to endeavour to procure his return at the 2012 general election.

58. The facts which work against that inference are that:

• the cash was not intended for individuals, but for community groups and schools;
  
• the first respondent did not physically hand out the cash;
  
• the first respondent did not say that he expected votes in return for the cash;
  
• the first respondent expressly stated that the people should not think that he was trying to bribe them or induce them to vote for him.
  

59. I find that those facts are insufficient to defeat the natural and ordinary inference from the circumstances in which the cash was handed out that the first respondent was attempting to improperly buy votes with cash. I consider that despite what he said to the villagers and despite what he testified in court, the majority of the voters at Veifa'a would have seen through the veneer of respectability that the first respondent attempted to maintain. I accept the submission of Mr Sheppard for the petitioner that the first respondent was engaged in a 'transparent ruse'. A reasonable person would have regarded his real intention as being to buy votes with K6,500.00 cash. I am satisfied beyond reasonable doubt that that was indeed his real intention and that he acted with criminal intent: the first respondent was distributing the cash in order to induce the recipients and the villagers generally to endeavour to procure his return at the 2012 general election and to procure the votes of the electors at the election. The third element is satisfied.

60. I am not so satisfied in relation to the K3,000.00 worth of cheques. I am not convinced that the cheques represented an entirely proper and innocuous distribution of money (as they were not in evidence) but the manner in which they were distributed by the LLG President ultimately distinguishes them from the cash.

The unplanned distribution: K1,000.00 cash

61. The first two elements are clearly established in that the first respondent (1) conferred on two persons (Aoka Mauni, on behalf of the youths who erected the roadblock; and Maryaine Mauni, on behalf of herself and the other woman who covered themselves in mud) (2) benefits (in the form of cash).

62. The third element is contentious. It was argued by Mr Shepherd for the first respondent and Mr Dalid for the second respondent that these were innocuous payments made in the form of compensation, to fulfil customary obligations. However, I consider that they were more of a political character. They were unplanned, spur-of-the-moment payments made to appease political protestors. The fact that other members of the youth group were not identified in the evidence does not defeat the inference that these were inducements paid to persons who were electors in the sense prescribed by Section 103(a)(iii). The third element is satisfied.

Criminal Code, Section 103(d)

Elements

63. As explained earlier it must be proven 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 prescribed purposes, eg endeavouring to procure his return at the election or the vote of any elector at the election.
   

The planned distribution: K6,500.00 cash + K3,000.00 cheques

64. The first element has been established in that the first respondent caused money to be advanced (in the form of K6,500.00 cash and K3,000.00 in cheques) to the various recipients.

65. The second element is established in relation to the K6,500.00 cash, for similar reasons set out above in relation to the proven offence under Section 103(a)(iii). It has been proven beyond reasonable doubt that the money was advanced with the intent that it be applied for the purposes referred to in Section 103(a)(iii).

66. I am not satisfied, for the same reasons given above, that the second element is proven in relation to the K3,000.00 worth of cheques.

The unplanned distribution: K1,000.00 cash

67. The first element has been established in that the first respondent caused money to be advanced (K500.00 cash) to each of the two recipients.

68. The second element is established for similar reasons I set out above in relation to the proven offence under Section 103(a)(iii). It has been proven beyond reasonable doubt that the money was advanced with the intent that it be applied for the purposes referred to in Section 103(a)(iii).

Conclusion re the Veifa'a allegations

69. It has been proven beyond reasonable doubt that the first respondent committed the offence of bribery under Section 103(a)(iii) by:

• conferring K6,500.00 cash in a planned distribution to various persons; and
  
• conferring K1,000.00 cash on two individuals in an unplanned distribution of cash.
  

70. It has also been proven beyond reasonable doubt that the first respondent committed the offence of bribery under Section 103(d) by:

• conferring K6,500.00 cash in a planned distribution to various persons; and
  
• conferring K1,000.00 cash on two individuals in an unplanned distribution of cash.
  

71. It has not been proven that by conferring K3,000.00 in cheques as benefits to three elementary schools that the first respondent committed bribery.

CONCLUSION

72. The Vanapa volleyball tournament allegations are unproven. However, substantial parts of the Veifa'a allegations have been established in that it has been proven that the first respondent committed the offence of bribery contrary to Sections 103(a)(iii) and 103(d) of the Criminal Code in two distinct ways:

• conferring K6,500.00 cash in a planned distribution to various persons; and
  
• conferring K1,000.00 cash on two individuals in an unplanned distribution of cash.
  

73. The Court finds that the first respondent, being a candidate at the 2012 general election, committed bribery and that because he was the successful candidate his election must be declared void.

74. In light of the above findings the Registrar is obliged to report them to the authorities referred to in Section 215 (court to report etc case of offences) of the Organic Law and to forward a copy of the Court's order to the Clerk under Section 221 (copies of petition and order of court to be sent to the parliament) of the Organic Law. The effect of this decision is under Section 226(c) (effect of decision) of the Organic Law that there shall be a new election.

75. As not all grounds of the petition have been upheld the question of costs is reserved. Any of the parties is at liberty to apply on motion for an order for costs.

ORDER

(1) The petition is upheld to the extent that, it having been found that the first respondent, the successful candidate, committed bribery, the election of the first respondent is declared void.

(2) Other relief sought in the petition is declined.

(3) The question of costs is reserved and may be pursued by any party by notice of motion.

Judgment accordingly.
________________________________________________
Young & Williams Lawyers: Lawyers for the Petitioner
Ashurst Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent