N10536

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 95 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
MADANG PROVINCIAL ELECTORATE

PETER CHARLES YAMA
Petitioner

V

RAMSEY PARIWA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Cannings J

Madang: 8th, 9th September 2023
Waigani: 21st September 2023
Madang: 23rd October 2023

ELECTIONS – petitions – “undue influence”: Organic Law on National and Local-level Government Elections, s 215 – elements of offence of undue influence (Criminal Code, s 102) – whether undue influence offence committed by successful candidate.

EVIDENCE – standard of proof required to prove criminal offences for purposes of s 215 of Organic Law – petitioner has burden of proving “to the entire satisfaction of the Court” that an offence was committed or attempted to be committed. 

The petitioner challenged the return of the first respondent as successful candidate at an election on the ground of undue influence, relying on s 215(1) of the Organic Law on National and Local-level Government Elections. It was alleged that the first respondent committed the offence of undue influence under s 102(b) of the Criminal Code during the campaign period by making false and defamatory statements that the petitioner was a thief and corrupt and the electors should not vote for him. The petitioner sought a declaration that the election and return of the first respondent as duly elected member was absolutely void and that a by-election be conducted. The Electoral Commission was the second respondent.   

Held:

(1)	“Undue influence” in s 215 of the Organic Law means one of the offences of undue influence in s 102 of the Criminal Code. The petitioner must prove to the entire satisfaction of the court that the offence was committed by the successful candidate during the campaign period for the election.

(2)	The elements of the offence under s 102(b) are that the person accused has by force or fraud prevented or obstructed the free exercise of the franchise by an elector or by any such means compelled or induced an elector to vote or refrain from voting at an election.

(3)	The facts alleged by the petitioner in the petition were, if proven, capable of amounting to commission by the first respondent of the offence of undue influence under s 102(b) of the Code. The critical question before the court was one of fact: whether the petitioner proved to the entire satisfaction of the court that the first respondent made the alleged statements.

(4)	The petitioner failed to prove his case as: he presented only eyewitness who testified that the statements were made by the first respondent; that witness’s evidence departed from the allegations of fact in the petition; that witness was not particularly convincing; that witness’s evidence was uncorroborated; although other witnesses gave evidence for the petitioner about the first respondent making similar statements at two pre-campaign events, their evidence was not so strong as to give rise to an inference that the first respondent must have said similar things at the campaign event; the first respondent gave evidence flatly denying that he made the statements attributed to him and though his evidence (like the petitioner’s eyewitness’s evidence) was uncorroborated, it was more convincing than the evidence of the petitioner’s eyewitness. 

(5)	The petition was dismissed, with costs. 

Cases Cited

The following cases are cited in the judgment:

Isoaimo v Aihi [2012] 2 PNGLR 337
Pokaya v Marape (2018) N7234
Singirok v Fairweather (2014) N5577
Sia v Numu & Electoral Commission (2020) SC1978
Warisan v Arore [2015] 1 PNGLR 315
Yama v Pariwa & Electoral Commission (2023) N10458

Counsel

B B Lomai, for the Petitioner
M Kombri, for the First Respondent
P Kuman & T Cook, for the Second Respondent

23rd October 2023

1.     CANNINGS J: The petitioner Peter Charles Yama filed a petition disputing the election of the first respondent Ramsey Pariwa as member for Madang Provincial in the 2022 general election. The Electoral Commission is the second respondent and supports the first respondent in opposing the petition.

2.    The petitioner seeks a declaration that the election and return of the first respondent as duly elected member was absolutely void and that a by-election be conducted. The petitioner relies on s 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.

3.     The petition originally contained six grounds of challenge:

•	ground 1: errors and omissions by the Electoral Commission in unlawfully extending the date fixed for the return of the writ for the election;

•	ground 2: undue influence by the first respondent in mid-April 2022 at Posdam care centre;

•	ground 3: undue influence by the first respondent on 29 June 2022 at Tugutugu village, Karkar LLG, Sumkar District;

•	ground 4: errors and omissions by the Electoral Commission during scrutiny in failing to comply with ss 147, 148 and 149 of the Organic Law;

•	ground 5: illegal practices by the first respondent and other persons including members of the Police Force that affected the result of the election; and

•	ground 6: errors and omissions by the Electoral Commission in allowing an unqualified candidate, James Yali, to nominate for the election.

4.    Three of those grounds, Nos  2, 5 and 6, were abandoned with leave of the Court, leaving the petition based on grounds 1, 3 and 4. A determination of objections to competency of the petition resulted in grounds 1 and 4 being struck out (Yama v Pariwa & Electoral Commission (2023) N10458), leaving one ground only, ground 3, as the subject of trial. 

GROUND 3 OF THE PETITION: UNDUE INFLUENCE

5.     Ground 3 of the petition alleges that the first respondent committed the criminal offence of undue influence under s 102 of the Criminal Code during a campaign rally at Tugutugu village, Karkar Island, Sumkar District. It is alleged that the first respondent made the following statement in Tok Pisin:

Nau gavman bilong Peter Yama em corrupt.  Peter Yama em wanpela corrupt man stret na em wanpela steal man.

Peter Yama em wanpela bisnis man em appim em yet na em no nap mekim wanpela samtin blo Madang.  Em wok lo usim public funds lo runim own bisnis bilong em.

Peter Yama em wanpela bisnis man na mani man tasol em wanpela steal man noken votim em.  Lo mi em Marape Gavman i givim mi K5,000.00 lo kam na campaign.

[English translation, agreed by the parties:

The government of Peter Yama is a corrupt government and Peter Yama is one of the corrupt men and one of the thieves.

Peter Yama is one of the businessmen and he always lifts up his name and never does something good for Madang. He normally uses the public funds to run his own business.

Peter Yama is a businessman and he is one of the money men or businessmen with lots of money and also he is one of the thieves and you must not vote for him. As for me, Marape government gave me K5,000.00 to come and do my campaign.]

“Undue influence”

6.    It is settled law that “undue influence” in s 215 of the Organic Law means one of the offences of undue influence created by s 102 of the Criminal Code. The petitioner has the burden of proving, “to the entire satisfaction of the Court”, that the offence of undue influence was committed or attempted to be committed (Warisan v Arore [2015] 1 PNGLR 315, Singirok v Fairweather (2014) N5577, Pokaya v Marape (2018) N7234).

7.    Section 102 (undue influence) of the Criminal Code 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 refrain from 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,

is guilty of a misdemeanour.

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

8.    The Supreme Court explained in Sia v Numu & Electoral Commission (2020) SC1978 that s 102 creates three separate types of offences, under s 102(a)(i), s 102(a)(ii) and s 102(b), each of which contains discrete elements, as follows.

Offence under s 102(a)(i)

9.    It is an offence for a person to:

•	use or threaten to use any force or restraint, or 
•	do or threaten to do any temporal or spiritual injury, or 
•	cause or threaten to cause any detriment of any kind to an elector; and 

•	in order to induce the elector to vote or refrain from voting at an election.

Offence under s 102(a)(ii)

10.    It is an offence for a person to:

•	use or threaten to use any force or restraint, or 
•	do or threaten to do any temporal or spiritual injury, or 
•	cause or threaten to cause any detriment of any kind to an elector; and 

•	on account of the elector having voted or refrained from voting at an election.

Offence under s 102(b)

11.    It is an offence for a person to:

•	by force or fraud; and 

•	prevent or obstruct the free exercise of the franchise by an elector, or 
•	[by any such means, ie by force or fraud] compel or induce an elector to vote or refrain from voting at an election.

This case

12.    The petition was framed, the evidence was presented and submissions were made, to prosecute a case of undue influence under s 102(b). It is the petitioner’s case that the first respondent made fraudulent statements to induce electors to vote against the petitioner and for the first respondent and thereby obstructed the free exercise of the franchise by an elector. 

13.    As I said in my ruling on the objection to competency (Yama v Pariwa & Electoral Commission (2023) N10458) the elements of an offence under s 102(b) are adequately pleaded in ground 3 of the petition. The person who allegedly was prevented or obstructed in the free exercise of his franchise as an elector is identified and it is sufficiently pleaded that the statements attributed to the first respondent amounted to fraud.

CRITICAL QUESTION

14.    The critical question before the court is one of fact: has the petitioner proven to the entire satisfaction of the court that the first respondent made the alleged statements about the petitioner in the campaign event at Tugutugu village, Karkar Island?

Petitioner’s evidence

15.    In support of his case the petitioner presented five witnesses. The first and key witness, Gideon Jerome, was presented as an eyewitness. He testified that he was at the campaign rally for the first respondent. He gave a detailed account of how he came to be there. He was initially at Kulili station before being invited to go to Tugutugu and the Yakon Field where the rally was held. He testified about the vehicles used to get there and he identified the man who drove the first respondent as being from Magar, as was another person in the same vehicle as the first respondent. He named those who spoke at the rally in support of the first respondent. He said that the rally was held on 8 July 2022, in the campaign period.

16.    He testified that the first respondent spoke the words alleged against him in the petition, to the effect that:

•	the government of Peter Yama is a corrupt government;

•	Peter Yama is one of the corrupt men and one of the thieves;

•	Peter Yama is one of the businessmen and he always lifts up his name and never does something good for Madang;

•	Peter Yama normally uses public funds to run his own business; and 

•	Peter Yama is a businessman and he is one of the money men or businessmen with lots of money and he is one of the thieves and you must not vote for him. 

17.    The second, third and fourth witnesses for the petitioner are from Manam island, Bogia District: Ishmael Soko Joshua, Jason Levi and Gordon Kauke.  They each testified in affidavits and oral testimony that they are registered voters who attended an event in April 2022 at the place they now live, Posdam Care Centre. 

18.    The first respondent objected to their affidavits being admitted into evidence and objected to their giving oral evidence. It was argued that their evidence was only relevant to ground 2 of the petition, which was abandoned. I overruled the objection and allowed their affidavits to be admitted and each of them to give oral evidence. They were each cross-examined.

19.    They each testified that they heard the first respondent give a speech about the forthcoming election at which he said he would be a candidate for the provincial seat. The first respondent spoke about K6 million of the Manam people’s funds that had been stolen by Madang Provincial Government from the Manam Resettlement Authority. He said that  the Governor of Madang (the petitioner) was a very corrupt man. When the first respondent was speaking he introduced a senior member of the Police Force, ACP Peter Guiness, who was present at the care centre. ACP Guiness supported the first respondent and said Madang Provincial Government was very corrupt and the people should not vote for the petitioner.

20.    The final witness for the petitioner was Paul Terry of Imbiar village, Bogia District. His evidence was also objected to by the first respondent but I overruled the objection and his affidavit was admitted into evidence and he was allowed to give evidence. He said that he was at Sarekeng No 2 village, Bogia District on the evening of 24 March 2022 and that he attended an electoral awareness event being held. The first respondent gave a speech and was talking about K6 million that had been stolen by the petitioner and the provincial government from the Manam Resettlement Authority. This was money that really belonged to the people of Manam Island. The first respondent said that the petitioner had got the money and used it for his family business. He said he was angered by this as he regarded the petitioner as a good leader and when he tried to point that out, the first respondent and members of the crowd turned on him and shouted him down by saying things like ‘You and your father Yama got that money and ate it and made business out of it’. He left in a hurry as it was clearly not an awareness exercise but a campaign event intended to tarnish the name and reputation of the petitioner. 

First respondent’s evidence

21.    The first respondent Ramsey Pariwa was the sole witness. His two affidavits were admitted into evidence and he gave oral testimony and was subject to cross-examination.

22.    He acknowledged that he held a campaign rally at Tugutugu village, Karkar Island, as alleged by the petitioner. He flatly denied saying that the petitioner was corrupt. He knew that there was no evidence that the petitioner had been convicted of any offence involving misappropriation of K6 million of Manam Resettlement Authority or any other offence.  That is why he would not have said, and did not say, that the petitioner was corrupt. It was, however, a fact that the petitioner and his wives and his son and a number of senior officers of the Madang provincial administration had been charged with misappropriation of those funds. He pointed out to the petitioner’s counsel, Mr Lomai, that he, Mr Lomai, had also been charged in relation to those criminal allegations. This was widely publicised in the media.

23.    What he said was that the province needed a change in leadership. It was a normal campaign message.

24.    He also acknowledged that he spoke at Posdam care centre in March 2022. This was in the pre-campaign period. It was not a campaign rally but an awareness event. He spoke about the alleged misappropriation of Manam Resettlement Authority funds. He was very concerned about the plight of the Manam people. He was instrumental in commencement in the National Court of human rights proceedings on behalf of the Manam people. The people at the care centre wanted to hear what he had to say about the misappropriation charges against the petitioner and others. He did not say much. He did not say that the petitioner was corrupt. He did not tell the people not to vote for the petitioner. He told the people they should ask ACP Guiness, who happened to be passing through the care centre, if they wanted to know about the misappropriation case involving Manam Resettlement Authority funds. ACP Guiness explained the fact that the petitioner and his family members and other associates had been charged and gave his own opinion on the Madang Provincial Government. The first respondent reiterated that he did not say that the petitioner was corrupt. He said that for the good of the province and to improve service delivery there should be a change in the leadership. He did not tell anyone not to vote for the petitioner.

25.    Asked why he could find no one to give evidence to support what he was saying, the first respondent said that he chose to give his own evidence. 

Has the petitioner proven his case to the entire satisfaction of the Court?
 
26.    I have assessed the evidence for the petitioner and the competing evidence for the first respondent and considered the submissions of counsel, Mr Lomai for the petitioner and Mr Kombri for the first respondent. 

27.    I note that the second respondent, the Electoral Commission, though it made its own objection to competency of the petition and was generally supportive of the first respondent, offered no detailed submissions at the trial of the petition. 

28.    I find that the petitioner has failed to prove his case to my entire satisfaction for the following reasons: 

1.	The petitioner presented only one eyewitness, Gideon Jerome, who testified that he was present at the campaign event at Tugutugu village, Karkar Island. His evidence was entirely uncorroborated. It is difficult to see a good reason for no other witness being able to be identified by the petitioner and organised to give evidence, given that it was a campaign even at which apparently many people were present and it was clear that the first respondent was not going to admit making the statements about the petitioner being corrupt. This was evidence that required corroboration but there was none. 

2.	Gideon Jerome’s oral testimony departed from the allegations of fact in the petition in a material way, in that in oral testimony he said that after hearing the first respondent’s speech he was persuaded not to give the petitioner his #1 vote, but gave his #1 vote to Jerry Singirok and only gave the petitioner his #2 vote, whereas in the petition it is alleged that after he heard the first respondent’s speech, he was persuaded not to vote at all for the petitioner.

3.	Gideon Jerome was not a particularly convincing witness. I cannot find that he lied under oath but there were some parts of his evidence that did not ring true. He said that he was a qualified civil engineer, having graduated from Unitech, Lae, some years ago, but he gave evidence of an irregular employment history and he elected to give his evidence in Tok Pisin, not English. Of course he was entitled to do that but it did not add credibility to his evidence.

4.	Though four other witnesses gave evidence for the petitioner about the first respondent making similar statements at two pre-campaign events, their evidence was not so strong as to give rise to an inference that the first respondent must have said similar things at the campaign event at Tugutugu village, Karkar Island.

5.	Though Mr Lomai validly pointed out that it was strange that the first respondent chose to rely exclusively on his own evidence and presented no witness to support his version of the events at Tugutugu village, Karkar Island or the so-called awareness exercise at Posdam care centre, and strange too that the first respondent did not attempt to rebut the evidence of Paul Terry on the awareness exercise at Sarakeng No 2 village, Bogia District, it was not the first respondent’s responsibility to disprove the allegation that he made false and defamatory statements at Tugutugu village, it was the petitioner who at all times bore the burden of proof. 

6.	The first respondent was a reasonably convincing witness. He spoke firmly and authoritatively. He said he was an experienced lawyer who understood full well the presumption of innocence which is a constitutional right of all persons charged with criminal offences. He knew that the petitioner had not been convicted of any offence including any offence concerning alleged misappropriation of K6 million of Manam Resettlement Authority funds. But he reiterated that the petitioner and others including Mr Lomai had been charged and that this was a well known fact. The first respondent’s case would have been much stronger, given that the petitioner’s case rested essentially on just one witness, if he had presented some corroboration. While there is a lingering doubt therefore about whether the first respondent was telling the truth when he denied saying that the petitioner was corrupt, there is not enough doubt to tilt the case in the petitioner’s favour.

7.	Ultimately, in any criminal or quasi-criminal case (which an election petition relying on s 215 of the Organic Law is, as the petitioner must prove that a criminal offence has been committed) if the prosecution (here, the petitioner) presents only one witness to prove his case and that witness is not really convincing, and the accused person (here the first respondent) is the only witness for the defence, it is very difficult for the prosecution to discharge the onus of proof. That has turned out to be the story of this case. The petitioner’s case is simply not strong enough to warrant a finding that the first respondent committed the offence of undue influence under s 102(b) of the Criminal Code. 

CONCLUSION

29.    The only remaining ground of the petition has failed. That is a just and sufficient reason, pursuant to ss 212(1)(i) and 212(3) (powers of court) of the Organic Law, to dismiss the whole petition. Costs will follow the event: the petitioner will pay the first respondent’s costs. The second respondent played a minimal and largely superfluous role in the proceedings, so it will bear its own costs.

ORDER

(1)	The petition is wholly dismissed.

(2)	The petitioner shall, subject to any specific costs orders made during the proceedings, pay the first respondent’s costs of the petition.

(3)	The second respondent shall, subject to any specific costs orders made during the proceedings, bear its own costs.

(4)	The Registrar shall forthwith pay to the first respondent as a set-off against costs the security for costs deposited by the petitioner under s 209 of the Organic Law on National and Local-level Government Elections.  

(5)	The Registrar shall under s 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.  
_____________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Petitioner
Kombri & Associates Lawyers: Lawyers for the First Respondent 
Kuman Lawyers: Lawyers for the Second Respondent