N10677
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 23 OF 2022 (IECMS)

IN THE MATTER OF DISPUTED RETURN FOR THE AITAPE LUMI OPEN ELECTORATE

BETWEEN:
PATRICK PRUAITCH
Petitioner

AND:
THE HON. ANDERSON MISE, MP
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Wewak & Port Moresby: Frank, J
2023:  27th & 28th February, 1st & 31st March, 11th, 12th & 28th April
2024: 4th January

ELECTIONS – Disputed election petition – Trial – Bribery – Criminal Code ss 97B and 103

ELECTIONS – Disputed election petition – illegal practice – Bribery – meaning and scope of Organic Law On National And Local-Level Government Elections, s.215 – Criminal Code, s. 97B

Held: 
The offence of bribery in s.97B is an illegal practice and constitutes bribery for the purpose of s.215 of the Organic Law On National And Local-Level Government Elections.

Cases Cited:
Electoral Commission v Pruaitch (2023) SC2415
Electoral Commission v Pruaitch (2023) SC2416
Amet v Yama (2010) SC1064 
Waranaka v Dusava (2009) SC980 
Ganasi v Subam (2013) SC1277 
Warisan v Arore [2015] PNGLR 315
Tulapi v Lagea (2013) N5323 
Kikala v Mangape (2013) SC1295
Peter Isoaimo v Paru Aihi & EC (2012) N4921
Hagahuno v Tuke (2020) SC2018
Duma v Puk (2019) SC1817
Biri v Ninkama [1982] PNGLR 342
Dekena v Kuman (2018) SC1715
Holloway v Ivarato [1988] PNGLR 99
Kuberi Epi v Tony Farapo & EC (1983) SC247
Yagama v Uguro (2018) N7135 
Singirok v Fairweather (2014) N5577 
Kaiwi v Tongamp (2018) N7208
Aihi v Isoaimo (2013) SC1276
Aihi v Isoaimo (2023) N10158
Potape v Undialu (2018) SC1680
Andrew Wabiria v Payale Elo [1977] PNGLR 328 
Okuk v Nilkare [1983] PNGLR 28
Jabala v Okuk [1983] PNGLR 69
Bourne v Voeto [1977] PNGLR 298
Kopaol v Embel (2003) SC727
Diau v Gubag (2004) SC775
Agonia v Karo [1992] PNGLR 463 
Nomane v Mori (2013) SC1242
Pokaya v Marape (2018) N7234
Ilaibeni v Morris (2023) N10154

Legislations Cited:
Organic Law On National And Local-Level Government Elections
Criminal Code Act Ch. 262
Election Petition Rules 2017 (as amended) 
District Development Authority Act 2014
Electoral Law (National Elections) Regulation 2007
Constitution

Text & Materials Cited:
Little Oxford English Dictionary & Thesaurus (2nd edition) Oxford University Press, 2008
Bird, Osborn’s Concise Law Dictionary, Seventh Edn., Sweet & Maxwell, London 1983
www.oxfordlearnersdictionary.com

Petition
This was a petition filed pursuant to s.206 of the OLNLLGE disputing the validity of an election outcome on the ground of bribery by the successful candidate.

Counsel:
Mr G. Sheppard & Mr P. Tabuchi, for the Petitioner
Mr A. Manase, for the First Respondent
Mr M. Saka, for the Second Respondent

JUDGMENT

4th January, 2024

1	FRANK J: CASE BRIEF: The petitioner and the first respondent contested the National General Elections for the seat in the National Parliament (“Elections”) as the parliamentary representative for the Aitape-Lumi Open electorate (“Electorate”). The first respondent was declared as the winner in that contest. Aggrieved by that outcome, the petitioner seeks to upset it by his amended petition (“Petition”) filed pursuant to the Organic Law On National And Local-Level Government Elections (“Organic Law”).

2	At the commencement of trial on 25 February 2023 I heard and on 21 March 2023 determined objections to the competency of the Petition (“Objections Ruling”).

3	This Objections Ruling was the subject of applications to the Supreme Court on 2 occasions, the first of which was determined on 30 May 2023: Electoral Commission v Pruaitch (2023) SC2415.

4	The second of these applications was determined on 5 July 2023: Electoral Commission v Pruaitch (2023) SC2416.
5	The petitioner’s evidence comprises of the following:
5.1	Affidavits of –
(a)	Eunice Noki sworn 9 and filed 11 November 2022 – exhibit “P1”;
(b)	Patrick Pruaitch sworn and filed 25 October 2022 - exhibit "P2”;
(c)	Jack Siroi sworn and filed 25 October 2022 - exhibit "P3”; and
5.2	The sworn testimonies of Mr Pruaitch and Mr Siroi.
6	Additionally, prepared and filed by consent is a typed transcription of the contents of the audio recording of the first respondent’s speech (“Speech”) adduced in a USB stick device which comprises annexure JS-1 to Mr Siroi’s affidavit.

7	The respondents did not call any evidence.

8	At the trial, after the close of the respondents’ case, counsel made oral submissions along their written submissions which I have considered, references to which are made herein.

9	In the Petition, the petitioner alleges that the first respondent committed bribery, a ground under s.215(1) of the Organic Law, by 5 instances upon which the 5 allegations (“Counts”) under s.97B of the Criminal Code are based. The 4 Counts under s.103 are founded on 4 of those 5 instances alleged.

The Law

10	Section 215(1) of the Organic Law provides:
215.	Voiding election for illegal practices.
(1)	If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2)	A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3)	The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a)	on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b)	on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
[emphasis added]

11	As is common ground between the parties, the petitioner must prove these elements to the entire satisfaction of the court: Amet v Yama (2010) SC1064; Waranaka v Dusava (2009) SC980; Ganasi v Subam (2013) SC1277; Warisan v Arore [2015] PNGLR 315; Tulapi v Lagea (2013) N5323; Kikala v Mangape (2013) SC1295.

12	I now consider the Counts of bribery under s.103(a)(iii).

Bribery under s.103(a)(iii)
13	Count 1 is pleaded in para.20 of the Petition in these terms:

On Tuesday, the 5th day of July, 2022, in Papua New Guinea, as the bank statement for the First Respondent's account number 1001328839 held at Bank South Pacific ("the First Respondent's Bank Account") demonstrates, the First Respondent (a candidate in the ALOE for the 22NGE) gave to Moses Kempa, a person employed in the Public Service (as defined in s.83A (g) of the Criminal Code) as Assistant Returning Officer for West Wapei Rural LLG in the ALOE by the Second Respondent, by transferring from the First Respondent's bank account to Moses Kempa's bank account, the sum of  K200, with the intention of procuring, causing or inducing Moses Kempa to endeavor to procure the return of the First Respondent as the member for ALOE at the 22NGE, and thereby committed an act of bribery contrary to s.103 (a) (iii) of the Criminal Code, and s.215 (1) of the Organic Law.
14	Counts 2 to 4 are in similar terms, respectively pleaded in paras. 24, 28, and 32 of the Petition, differentiated only by the date, amount, name of the Assistant Returning Officer (“ARO”) and the Local-level Government (“LLG”) area.

15	In summary, the allegation in each of Counts 1 to 4 is that on the date specified in the Count the first respondent paid the amount specified in the Count to the person named in the Count to procure, cause or induce the person paid to endeavour, in the discharge of his functions as the ARO for the LLG area specified in the Count, to procure his return as the winning candidate for the Electorate, the particulars being:

15.1	Count 1: K200.00, paid on 5 July 2022 to Mr Kempa, the ARO for the West Wapei LLG;
15.2	Count 2: K1,000.00,  paid on 22 July 2022 to Mr Kempa, the ARO for the West Wapei LLG;
15.3	Count 3: K250.00, paid on 11 July 2022 to Clement Wirye, the ARO for the East Wapei LLG; and
15.4	Count 4: K1,000.00, paid on 22 July 2022 to Mr Wirye, the ARO for the East Wapei LLG.
16	It is settled law that bribery under s.103 constitutes bribery for the purpose of s.215 of the Organic Law: Waranaka v Dusava (supra); Peter Isoaimo v Paru Aihi & EC (2012) N4921; Amet v Yama (supra); Ganasi v Subam (supra); Kikala v Mangape (supra); Warisan v Arore (supra); Hagahuno v Tuke (2020) SC2018.

17	Section 103(a)(iii) provides:

103.	Bribery.
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;
(b)  - (g)   …  [DELETED]
is guilty of a misdemeanour.
Penalty:	A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
[emphasis added]
Determination of the Counts
18	During submissions, the respondents raised objections to the competency of each Count.  I consider these first.  First, the respondents submit that each Count is incompetent as insufficient facts have been pleaded in breach of s.208(a) of the Organic Law as:

18.1	the facts must be pleaded under Part B of a petition;
18.2	the grounds must be pleaded under Part C of a petition; and
18.3	the facts pleaded under Part B paras. 1 to16 of the Petition are not the relevant and material facts which might support the elements of the offence. 
19	It is correct as the first respondent points out that most of the material facts going to the elements of the offence are pleaded under Part C in paras. 20, 24, 28 and 32 of the Petition. This also applies to paras. 18, 22, 26, 30 and 34 of the Petition.

20	I dismissed this objection at the commencement of trial.

21	In that ruling I also dispensed with the requirement as to the Form of the Petition to the extent that it required that those alleged facts be pleaded in Part B of the Petition.

22	The first respondent, however, submits that the Supreme Court in Duma v Puk (2019) SC1817 held that separating the facts from the grounds was not simply a matter of form but one of substance, that is, that is it is an issue of competence of a petition under s.208(a) of the Organic Law.

23	The Supreme Court in Duma v Puk (supra) came to that conclusion after observing and finding that:

23.1	Rule 4 of the Election Petition Rules 2017 (as amended) (“EP Rules”), which requires in mandatory terms that a petition be in Form 1 means that a petition which is in “substantial” compliance with Form 1 is incompetent on the basis that strict compliance is required on the authorities of Biri v Ninkama [1982] PNGLR 342 where the competency of the Petition was successfully challenged on the basis that s.208 of the Organic Law was mandatory and must be complied with strictly with the result that the petition there was found incompetent as, in breach of s.208(d) of the Organic Law, it did not contain the occupations of the attesting witnesses, Amet v Yama (supra) and Dekena v Kuman (2018) SC1715;
23.2	the requirement of the EP Rules is a requirement of the Organic Law and therefore cannot be dispensed with; and
23.3	the failure to separate the pleading of facts from pleading of the grounds contravened s.208(a) of the Organic Law and this was fatal on the authority of Holloway v Ivarato [1988] PNGLR 99.
24	As I have dispensed with the Form and as the ground of this objection is one I have already dismissed, the basis for this submission does not exist. For these reasons I dismiss this objection.

25	If I am wrong in coming to this position, then with respect to the Form a petition must take, it is also open to the interpretation of Rule 4 of the EP Rules that the requirement that a petition shall be in Form 1 means that a petition can only be in Form 1 and no other originating process is to be used to initiate a petition.

26	In Holloway v Ivarato (supra), Kapi DCJ (with whom the other 2 members of the court agreed), at page 101, said –

The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. 
27	This simply means that a ground upon which an election result may be invalidated is different from the facts pleaded to establish the ground.

28	His Honour, at page 101, continues:

The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
29	To emphasise the need to plead facts, His Honour, at pp.101-102, said: 

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.
30	In my respectful opinion, this is not the same as requiring with respect to Form 1 that the material facts must be pleaded under a separate section, as in Part B and the grounds those facts seek to establish under Part C.

31	In considering these issues, the remarks as to the approach by Injia CJ in Tulapi v Lagea (supra) (also previously expressed in different ways) are apt:

16. 	For my own part, I prefer a … position …, whereby judicial scrutiny of a petition's competency under s 210 is driven by fairness, purpose and substance; rather than procedural style, form and legal technicalities.
17. 	We should not forget that petitions are intended to be filed by petitioners in person and the involvement of lawyers is restricted to the agreement of the parties; that when an overwhelming majority of our people are ordinary people with little or no formal education, many who choose to challenge the election result or return by way of an election will be ordinary people. Simplicity, purpose and substance involving a holistic reading of the matters set out in the petition are the guiding principles that should rule the day over style, form and legal technicalities.
32	To the extent that the Supreme Court in Duma v Puk (supra) agrees with Holloway v Ivarato (supra) that the facts must be clearly identified in the pleadings from the ground which those facts seek to establish, I also agree.

33	However, in my respectful view, Holloway v Ivarato (supra) does not stand for the proposition that it is a requirement of section 208 (a) of the Organic Law that the facts and the grounds must be pleaded in different sections as required in Form 1 Parts B and C, the effect given to the Form in Duma v Puk (supra) as I understand it in its application of Holloway v Ivarato (supra) on a strict interpretation of requirements of legislations governing election petitions. 

34	As to the interpretation of election-related legislations, the Supreme Court in Kuberi Epi v Tony Farapo & EC (1983) SC247 (per Kidu CJ and Pratt J), in considering whether a personal cheque drawn to pay the security deposit required by s.209 of the Organic Law complies with that provision, said:

In the recent Supreme Court decision of Delba Biri, the Court ruled that the provisions of s.210 requiring compliance with the previous two sections before proceedings could be heard meant a strict compliance with those requirements. The Court however did not say that strict compliance with the requirements necessitated strict interpretation of such sections and there is nothing in the judgment which we can find which supports any contention that the Supreme Court departed from the duty laid upon it under Schedule 1.5 of the Constitution to read each constitutional law as a whole and to give such laws “their fair and liberal meaning”. As was said during argument however, we do not for one moment consider this duty carries with it an encouragement to abandon the normal principles of interpretation as set out in that part of our underlying law known as the common law.
35	On this point, in Hagahuno v Tuke (supra), Kirriwom J, at para. 130 said:

130.	… In one view, we may have misread and misconstrued a good case precedent by rigidly and strictly applying its principle in the wrong sense when dealing with objection to competency applications and we started to articulate ways or invent new style of drafting or pleading the grounds of petition taking the whole exercise way out of reach of a layman to handle his own petition. 
36	Parts B and C of Form 1 provides a direction as to the style of pleading a petitioner must follow. However, giving the partition of the Form the effect of a requirement of section 208 (a) of the Organic Law is to say that this provision directs the style of pleading a petitioner must adopt. This I understand to be the effect of Duma v Puk (supra).
37	Clarity will often be enhanced when the statutory provision upon which a ground is based, on which an election result is sought to be disturbed is pleaded with the facts, for instance, as was done in the manner reproduced in para.7 of Amet v Yama (supra) and in this instance (in [13] above). However, as was stated in Holloway v Ivarato (supra), pleading only the facts is required by s.208 (a) of the Organic Law from which the ground those facts seek to establish is to be ascertained.

38	While Parts B and C of the Form must be complied with as its intent is to focus attention on the facts, such a requirement as is contended by the respondents as to compliance with Parts B and C of a petition cannot, in my respectful opinion, be read into s.208(a) of the Organic Law.  The effect of reading such a requirement into s.208 (a) of the Organic Law in my respectful view will mean it cannot be dispensed with.

39	Non-compliance with a style directed by Parts B and C of Form1 is therefore made subject to the power of dispensation in Rule 22 of the EP Rules.

40	As pleaded, the facts alleged in each of those paragraphs of the Petition I referred to is concise and not objectionable and the petitioner is entitled to plead that paragraph as it has. In each of those one-sentence paragraphs, it also pleads the ground. To this extent, it is compliant with Part C of the Form. Otherwise, the facts alleged in them should have been pleaded under Part B as the other facts are, and the title to the document (‘PETITION’) appears as one would usually find in court documents and not in the position where the Form has placed it.  There is no suggestion that this was a deliberate abuse of process, hence the dispensation.

41	For these reasons, I dismiss this objection.

42	As the second respondent has observed with references to Yagama v Uguro (2018) N7135, Singirok v Fairweather (2014) N5577, Kaiwi v Tongamp (2018) N7208 and Hagahuno v Tuke (supra), different elements of the offence are stated in these cases. However, it would be misleading to assert that a list of the elements is not exhaustive as was expressed in those submissions or are as identified in a particular case; rather the elements one must prove in one instance depends on the facts pleaded and the type of bribery in s.103 whose elements those facts seek to establish.

43	The elements of the offence, based on the facts pleaded, are:

43.1	a person;
43.2	gave;
43.3	to a person;
43.4	a property or benefit;
43.5	in order to induce a person to endeavour to procure a person’s return at an election.
44	From the evidence adduced for the petitioner:

44.1	Mr Kempa was the ARO for the West Wapei Rural LLG from 20 May to 30 September 2022 pursuant to the appointment instrument published in National Gazette G489 (“G489”) a copy of which is annexure PP-2 of exhibit “P2”;
44.2	Mr Wirye was the ARO for the East Wapei Rural LLG for the same period of appointment as Mr Kempa also evident from G489;
44.3	On 12 May 2022, the writ for the  Electorate (“Writ”), a copy of which comprises annexure “ PP-1” to the petitioner’s affidavit, was issued by the Head of State;
44.4	On 12 May 2022, nominations were scheduled by the Writ to commence;
44.5	9 July 2022 was the first day of polling scheduled by the Writ;
44.6	22 July  2022 was the last day of polling scheduled by the Writ;
44.7	On 29 July 2022, the Writ was endorsed  by John Awas, the Returning Officer for the Electorate with the name of the first respondent as having been duly elected as the Parliamentary Member for the Electorate;
44.8	On 28 September 2022, the first respondent was sworn in as the Chairman of the Aitape-Lumi District Development Authority, as deposed to by Mr Siroi. 
45	The bribery allegations are based on the following payments made by the first respondent:

45.1	K200.00 was transferred on 5 July 2022 debited against the first respondent’s Bank of South Pacific bank account number 1001328839 and credited (“transmitted”) in favour of Mr Kempa.  The second of the two 5 July 2022 entries on page 5 of the first respondent’s bank account statement which comprises annexure A2 to exhibit “P1” (“Bank Statement”) records that transaction.  This is the property or benefit the subject of Count 1;
45.2	K1,000.00 was transmitted on 22 July 2022  to Mr Kempa.  The first of the two 22 July 2022 entries of the Bank  Statement records this transaction.  This is the property or benefit the subject of Count 2;
45.3	K250.00 was transmitted on 11 July 2022  to Mr Wirye.  The second of the seven 11 July 2022 entries on page 6 of the Bank  Statement records this transaction.  This payment is the property or benefit the subject of Count 3;
45.4	K1,000.00 was transmitted on 22 July 2022  to Mr Wirye.  The second of the two 22 July 2022 entries on page 6 of the Bank  Statement records this transaction.  This is the property or benefit the subject of Count 4;
45.5	K2,500.00 was transmitted on 8 August 2022  to Mr. Wirye.  The fifth of the ten 8 August 2022 entries on page 7 of the Bank  Statement records this transaction.  This is the property or benefit pleaded  in the Petition paras. 34.
46	The petitioner testified that:

46.1	he was a candidate in the Elections;
46.2	he was in the Electorate during the Elections;
46.3	he did not receive any request for funds for the Elections, none from any Electoral Officer; he agreed that polling was not held on time as it happened across the country; he agreed that for the Electorate, it was because of errors in the candidate’s posters but more so because of the logistics of moving the ballot boxes; he agreed that it is normal that prior to polling, the second respondent conducts training for its officers;
46.4	for the Electorate, trainings would have been conducted at 2 locations, one inland and the other on the coast.
47	Mr Siroi testified that –

47.1	he was in Aitape during the Elections period;
47.2	Lumi is inland separated by a range and about 2 to 3 hours from Aitape;
47.3	counting was conducted in Aitape and therefore as expected all electoral officials from Lumi travelled to Aitape and remained until the declaration.
48	The first respondent acknowledged in his Speech that he paid:
48.1	K200 to Mr Kempa and K250 to Mr Wirye to fund rations or food for persons who had attended training for the Elections (“Persons Accommodated”). Relevantly, he said:
I transferred K250 into the account of Clement Wirye and I transferred K200 into the account of Moses Kempa, our AROs for Lumi. My people (“lain”) who have come and stayed to attend the election training had no food and they asked me as their chairman and I have to transfer some money. As they had no way, I did the transfers, a translation of the following part of the Speech which was in Pidgin: Me transferim K250.00 igo inside long account blong Clement Weriye, me transferim K200.00 igo inside long account blong Moses Kemba, ol ARO blong mipla long Lumi.  Ol lain blong me kam stap long Lumi long election training long go long election training na nogat kaikai so ol askim me as their chairman and I have to transfer some money.  Nogat way long ol so me transfer.
48.2	K1,000 to Mr Kempa and K1,000 to Mr Wirye for them to provide these monies for the Persons Accommodated to purchase food for the duration of the counting whilst they resided at the Disable Centre, expressed in the Speech to this effect:
When they came for the counting here, they stayed at the Disable Centre, hungry and without any money. So I had to transfer K1,000.00 to Moses Kempa, K1,000.00 to Clement Wireye.  These two received it and gave it to them to buy food to remain/stay. That’s the allegation in court that we are battling about. The intention for that money is not bribery. But because I transferred the money at wrong timing they have taken me to court, and I am still investigating how they received these bank details of mine and put it in the court paper., a translation of:  Taim ol kam stap long counting long here. Ol silip long Disable Centre, wankain ol hungare nogat money.  So I had to transfer K1,000.00 to Moses Kempa, K1,000.00 to Clement Wireye. Tupla kisim na givim ol long baim kaikai long stap. Thats the allegation long court na mipla battle istap. That money intention blong em is not bribery.  But because me tranferim money long wrong timing thats why ol i courtim me and I am still investigating how turu na ol i kisim disela ol personal bank details blong me na putim long court paper….
49	Each of the asserted facts stated in [44] is evident on the face of the Writ and G489.
50	The first respondent accepts that the Bank Statements establish each payment and its particulars including the fact that the first respondent transferred these amounts of money to the named recipients.

51	However, he submits that less weight should be given to the affidavit of Ms Noki. He argues that Ms. Noki was required but did not appear for cross-examination for the purpose of clarifying the two dates, 9 July being the effective date and 11 July being the posting date in respect of the transfer of K250.00 to Mr Wirye.

52	As to the purpose for which Ms Noki was required for cross-examination, the need for that clarification is not material; whether it be 9 July or 11 July makes no difference to the substance of the allegation. It can be safely assumed that the earlier of those two dates is when the first respondent initiated that payment. The fact of those two dates does not affect the probative value and thus the weight to be given to the Bank Statement.  I therefore reject the submission. As the point taken was in respect of the K250 paid to Mr Wirye on 9 or 11 July, it does not affect the payments the subject of the other Counts.

53	The first respondent’s Speech acknowledgement corroborates the petitioner’s evidence of each payment and its particulars. 

54	As the evidence stands, it has not been contradicted or discredited.

55	The payments were made throughout the course of the Elections.  The first respondent said the K1,000.00 payments transmitted on 22 July 2022 were made when the Persons Accommodated were in Aitape for the scrutiny which is consistent with the last scheduled date for polling recorded in the Writ.  The declaration of the Elections outcome on 29 July 2022 also coincided with the date scheduled in the Writ for the return of the Writ and so on this evidence although, some delay was referred to in respect of polling, I am satisfied and find that the Elections in the Electorate proceeded according to the schedule in the Writ and that such delay was only in relation to the polling (voting) stage of the Elections. From this and with reference to s.78 of the Organic Law, I am satisfied and find that the nomination and scrutiny stages of the Elections in the Electorate were conducted along that schedule. By the schedule therefore, on 5 July 2022 when the first respondent made the first payment, polling had already commenced.

56	The fact that both the petitioner and the first respondent were candidates in the Elections for the Electorate as asserted has not been the subject of a ground of objection on standing in the notices of objection to competency which I dismissed. The second respondent concedes that the petitioner was the runner-up to the first respondent in the Electorate’s Elections outcome. As to  the first respondent, the endorsement on the Writ  in his favour, the requirement of Rule 3 of the EP Rules and the finding earlier that he was sworn in as the Chairman of the Aitape-Lumi District Development Authority, which is consistent with s.12 (1) (a) of the District Development Authority Act 2014 are, having regard also to section 217 of the Organic Law, sufficient proof of those asserted facts.

57	I am therefore satisfied and find that:
57.1	Mr Kempa was the ARO for the West Wapei Rural LLG from 20 May to 30 September 2022;
57.2	Mr Wirye was the ARO for the East Wapei Rural LLG for the same period of appointment as Mr Kempa;
57.3	On 5 July 2022, the first respondent was already a candidate for the Electorate;
57.4	The first respondent paid:
(a)	K200.00 on 5 July 2022 to Mr Kempa;
(b)	K1,000.00 on 22 July 2022 to Mr Kempa;
(c)	K250.00 on 11 July 2022 to Mr Wirye;
(d)	K1,000.00 on 22 July 2022 to Mr Wirye; and
(e)	K2,500.00 on 8 August 2022  to Mr. Wirye.
57.5	On 29 July 2022, the first respondent was declared the winning candidate; and
57.6	the petitioner was a candidate in the Elections for the Electorate.
58	On these facts, the petitioner has proven to my entire satisfaction that the first respondent paid each of the amounts stated in [57.4] on the date also specified there to the ARO named there.
59	The purpose of each of these payments, it is alleged, was to induce each of Mr Kempa and Mr Wirye to endeavour to procure the first respondent’s return at the Elections, that is, the petitioner submits that each payment was a bribe and that this to be inferred from the evidence and the status and role of the second respondent.

60	From the evidence adduced for the petitioner:

60.1	G489 stated the functions and limitations of an ARO that:
The AROs shall assist their assigned ROs in the resolution of election-related disputes that may arise during nomination, campaign, polling, and scrutiny in their area of responsibility and in accordance with the applicable electoral law and regulation.
B.	Scrutiny and Count
The AROs shall:
a.	Preside over the conduct of scrutiny of the ballots at the District or Local-Level Government (LLG) counting stations of the counting centre as assigned by the RO.
b.	Determine the formality or informality of ballots during the scrutiny process, and inform the RO of the determination.
c.	With the assistance of the police or other security forces, enforce order and discipline in the counting stations and centres.
d.	Perform verification of the requisite scrutiny and count forms and candidate boxes, sign the count forms when validated, and deliver the same to the RO as directed.
III.  LIMITATIONS TO THE POWERS OF RETURNING OFFICERS
The ARO shall not perform any other function not listed above unless specifically instructed by the RO and confirmed by the Electoral Commission.
……..
The ARO shall not set aside any ballot boxes for dispute during the conduct of the scrutiny and count process within the designated Electorate counting centre unless a candidate or scrutineer lodges a written objection with a statutory declaration of the facts for review by the Electoral Commission in line with the applicable laws and regulations and the Electoral Commission directs him or her to do so.
Furthermore, the ARO shall not enter into any financial contract or commitment for goods and/or services in the name of the PNGEC, without the express written permission of the Electoral Commission or his duly designated representative.
61	The Speech explanations raise more issues than they resolve about these payments; for instance, who exactly were members of the Persons Accommodated: were they presiding officers, poll clerks, polling and counting officers, assistant presiding officers, door keepers and assistants; how many of them were there; how long was the duration of their training and their accommodation that the amounts significantly differed and increased; did the Electoral Commission not have any funding and an Election Manager or Election Committee responsible for such training and co-ordination of the Elections; were other candidates requested to contribute to such a public cause, putting aside for the moment the issue whether it is permitted by law; was the prior approval of the second respondent sought and obtained for such payments?

62	The respondents could easily have called evidence from any of the Persons Accommodated, the first respondent or any of the ARO named to explain the circumstances of those payments, however, both respondents opted not to. As Kirriwom J observed in Hagahuno v Tuke (supra) in para 122:

122.	…What was the purpose for giving that money to those gathered? That is matter for evidence. That is for the First Respondent to tell the court or for the recipient as a witness, if called to testify, to tell the court. …
63	The Speech explanations were given after first respondent became aware that the payments were the subject of the Petition. His explanations that training of electoral officers was conducted in Aitape are inconsistent with the petitioner’s evidence and do not account for or explain the K2,500, a significantly larger amount to those earlier made after the first respondent had been declared the winning candidate.

64	Although the explanations are clear, as the second respondent points out, that is not determinative of its reception.
65	As they are, the explanations are incomplete, vague against the circumstances in which the payments were said to have been made, and in part contradicted by the petitioner’s evidence. From his Speech, the first respondent, it appears, did not expect that details of these payments will come to light.

66	Even if it is accepted, as was highlighted by the second respondent that residents of Lumi have had to travel into Aitape, as far as electoral officers are concerned, their conditions and duty requirements for the Elections are the responsibility of the second respondent.

67	I do not accept the second respondent’s submission that the petitioner should have summonsed or called the ARO named as witnesses to give evidence on the payments. The second respondent opted to defend the petition on the competency issues raised.  If it wished to rely on those explanations, the ARO named were its officers and it was in its interest to secure their evidence to support the explanations as Kirriwom J had observed in Hagahuno v Tuke (supra) to which reference was made earlier. 

68	For these reasons, the explanations are not credible and therefore I am not persuaded by and so I reject them.

69	The second respondent is established pursuant to s.126 (7) (a) of the Constitution by the predecessor of the Organic Law. By s.5 (2) of the Organic Law, it is constituted by the Electoral Commissioner.

70	The primary function of the second respondent is to organize and conduct elections for the Parliament. To be able to discharge this function, the second respondent is required by s.19 (1) of the Organic Law to appoint a Returning Officer who is charged by that provision with the duty to give effect to the Organic Law within the electorate for which he is appointed.

71	An ARO is empowered to exercise the powers of a Returning Officer subject to the control of the second respondent.

72	Section 3 of the Electoral Law (National Elections) Regulation 2007 also reflects the authority and control of the Electoral Commissioner in the exercise by his officers of his powers.

73	By s.12 of the Organic Law, the Electoral Commissioner is prohibited from engaging in politics and acquiring any gift, and every ARO was expressly prohibited by the terms of his appointment in G489 from entering into any financial contract or commitment for goods and services.

74	The actions of the first respondent and each of the ARO named violates and runs against the independence of the Electoral Commission, which the law including those cited were enacted to secure and maintain.

75	The payments and explanations given by the first respondent also show that he had been in constant communication with both Mr Kempa and Mr Wirye which in turn confirms that each of them was attending to the discharge of his functions as an ARO.

76	Having rejected the explanation given in the Speech and there being no explanation for the K2,500.00 payment, as was observed by Yagi J in Aihi v Isoaimo (2013) SC1276, at para.113: 

… unless the circumstances and context clearly suggest otherwise, a Court hearing a petition is entitled to form its own view based on the available evidence on such practice with a degree of suspicion and cynicism.
77	Without any explanation, as was observed by the Supreme Court in Kikala v Mangape (supra), it is open for a finding of fact to be made by inference if such is the only reasonable inference that can be drawn, expressed in para. 25, as follows:
25. 	It lies in the very nature of an act of bribery that it will often be committed in secret. The place of the alleged act of bribery will not be known. What was said, if anything, by the person committing the alleged act of bribery will not be known. There might be no witnesses. The lack of those sorts of facts does not mean that bribery cannot be proven by inference. Circumstantial evidence might lead to only one inference: that a bribe was paid and that an offence was committed.
78	A “bribe” is defined as –

78.1	a gift offered to influence a person to act in favour of the giver: Little Oxford English Dictionary & Thesaurus (2nd edition) Oxford University Press, 2008, page 80;
78.2	money or any other valuable consideration given or promised with a view to corrupting a behaviour of a person especially in that persons’ performance as an athlete, public official, etc.; anything given or servicing to persuade or induce: www.dictionary.com;
78.3	a sum of money or something valuable that you give or offer to somebody to persuade them to help you, especially by doing something dishonest: www.oxfordlearnersdictionary.com.
79	Thus “bribery” is the act of giving money (or something else of value) to someone to get them to do something you want them to do, especially something they are not supposed to do: www.dictionery.com.

80	As Berrigan J in Aihi v Isoaimo (2023) N10158 in para. 23 said:

The offence of bribery is complete at the time the person gives, confers or procures or promises or offers to give, or procure any property or benefit for the purposes outlined in s 103(a)(i) and (iii) of the Criminal Code.
81	On the evidence and against the framework of the law which provides for the independence of the second respondent for it to conduct a free and fair election and uphold and safeguard the integrity of the electoral system and of an election, and the conditions of employment of the second respondent and every ARO, without there being any reasonable explanation from either respondent, the petitioner has proven to my entire satisfaction that the only reasonable inference open in the circumstances, which I find are that:

81.1	the purpose of each payment supporting Counts 1 to 4 was to induce each of the ARO named to endeavour in the discharge his function as the ARO to procure the return of the first respondent as the winning candidate for the Electorate at the Elections; and
81.2	the K2,500 was a reward for Mr Wirye.
82	Together with the other findings, the petitioner has proven to my entire satisfaction all of the elements of the offence of bribery on each of Counts 1, 2, 3 and 4.

Bribery under s.97B(1)(b) 
83	Each of the 5 Counts of bribery under s.97B are pleaded in paras.18 (Count 5-Allegation 1), 22 (Count 6-Allegation 3), 26 (Count 7-Allegation 5), 30 (Count 8-Allegation 7) and 34 (Count 9-Allegation 9) of the Petition. Count 5 is in these terms:
On Tuesday, the 5th day of July, 2022, in Papua New Guinea, the First Respondent (a candidate in the 22NGE of the ALOE) offered to Moses Kempa, a person employed in the Public Service (as defined in s.83A (g) of the Criminal Code) as Assistant Returning Officer for West Wapei Rural LLG within the ALOE by the Second Respondent, a gratification of K200, as an inducement or reward for Moses Kempa performing or abstaining from performing, or aiding in procuring or hindering the performance of an official act, that is the performance of Moses Kempa's official duties as an Assistant Returning Officer in the 22NGE for ALOE, and thereby committed the offence of bribery of a member of the Public Service, contrary to s.97B.(1)(b) of the Criminal Code, and s 215 (1) of the Organic Law.
84	Counts 6 to 9 are pleaded in similar terms, differentiated only by the date, amount, name of the ARO and the LLG area.

85	In summary, in each of Counts 5 to 9, the allegation is that the first respondent paid to the ARO named a gratification in the form of the monetary amount stated in each Count as an inducement or reward for the ARO named to discharge his functions as the ARO for his designated area, particularised below:

85.1	Count 5: K200 on 5 July 2022 to Mr Kempa, the ARO for the West Wapei Rural LLG;
85.2	Count 6: K1000.00 on 22 July 2022 to Mr Kempa, the ARO for the West Wapei Rural LLG;
85.3	Count 7: K250.00 on 11 July 2022 to Mr Wirye,the ARO for the East Wapei Rural LLG;
85.4	Count 8: K200.00 on 22 July 2022 to Mr Wirye, the ARO for the East Wapei Rural LLG;
85.5	Count 9: K2,500.00 on 8 August 2022 to Mr Wirye, the ARO for the East Wapei Rural LLG.
86	Section 97B (1) (b) provides:

97B.	Bribery of member of Public Service.
(1)	A person who offers to a person employed in the Public Service, or being a person employed in the Public Service, solicits or accepts a gratification as an inducement or reward for—
(a)	the person employed in the Public Service voting or abstaining from voting at any meeting in favour of or against any measure; or
(b)	the person employed in the Public Service performing or abstaining from performing or aiding in procuring or hindering the performance of an official act; or
(c)	the person employed in the Public Service aiding in procuring or preventing the passing of any vote or granting of any contract in favour of any person; or
(d)	the person employed in the Public Service showing or refraining from showing any favour of disfavour in his capacity as a person employed in the Public Service,
is guilty of an offence.
Penalty: A fine at the discretion of the Court or imprisonment for a term not   exceeding seven years, or both.
(2)	An offence under Subsection (1) is committed notwithstanding that the person employed in the Public Service had no right or opportunity to show or refrain from showing favour or that the inducement was not in relation to the affairs of the public body.
[emphasis added]
Determination of the Counts
87	As the transactions in each of Counts 5 to 9 are alleged to have been made in the same manner but in respect of different amounts paid on different dates, it is convenient to consider them together.

88	The petitioner must prove these elements to establish the offence:

88.1	a person; 
88.2	offered; 
88.3	to a person;
88.4	a gratification; 
88.5	as an inducement or reward to either (a) perform; (b) abstain from performing; (c) aid in procuring the performance; or (d) aid in hindering the performance, of an official act; and
88.6	the person offered the gratification is employed in the Public Service.
89	During submissions, the respondents raised certain objections to the competency of all these Counts.  First, the first respondent submits that each of Counts 5 to 9 is incompetent as:

89.1	it is difficult to differentiate the facts which are alleged;
89.2	bribery under s.97B falls outside s.215 of the Organic Law;
89.3	the factual allegations pleaded to establish the Counts of bribery under s.103 cannot be relied on to establish bribery under s.97B(1)(b).
90	As to the first of these grounds of objection, it is argued that, read together, the allegations are vague as it is not clear whether the facts pleaded to support a Count (such as Count 1) charging bribery under s.103 are the same pleaded to support a Count (such as Count 5) charging bribery under s.97B.  

91	It is apparent from the Speech that the first respondent was under no misapprehension of the allegations made against him. If there was any uncertainty about this, all it required was to seek clarification of it by an exchange of letters whether the facts alleged in Counts 1 and 5 are the same.  At the close of the petitioner’s case, there could not have been any such misapprehension to support this submission.

92	The respondents have not directed my attention to any law which prohibits the same set of facts from supporting either in whole or in part the elements of two different offences (or causes of action), and in this regard it suffices only to demonstrate the contrary with references to s.315 (Grievous Bodily Harm with Intent) which has the element of intent to cause grievous bodily harm in addition to the others it shares with s.319 (Grievous Bodily Harm). The avenue which an objection to competency provides in an election petition is, in a criminal trial, provided for in ss.531, 558 and 560.  Contrary to the submission, s.531(2)(a) in fact permits more than 1 charge to be pleaded in an indictment so these provisions do not advance the point of objection.

93	In Potape v Undialu (2018) SC1680, the Supreme Court at para.30 said that it is permissible to plead alternative grounds unless those grounds are contradictory.

94	There is no contradiction in the purpose of the money given; the allegation is that it was given under s.97B(1) to perform an official act and under s.103(a)(iii) to endeavour to procure the return of the first respondent as the winning candidate in the Elections for the Electorate; that is, its purpose was to influence the conduct of the ARO named favourably towards the first respondent.

95	For these reasons, I dismiss this objection.

96	The respondents next submit that bribery under s.97B does not fall within the ambit of s.215(1) of the Organic Law. Although I dismissed this objection:

96.1	the first respondent advances it again on the basis that Mune v Agiru (1998) SC590 stands for the proposition that “…illegal practice in Section 215 of the Organic Law are those prescribed by the Organic Law Section 178 and Criminal Code Division 3 Corrupt and Improper Practice at Election. Section 98-117 Division 2.  Interfering with Political Liberty, Section 78”; and
96.2	the second respondent advances it on the basis that bribery under s.97B applies to situations which are unrelated to elections as s.103 is the exclusive offence provision.
97	As I have already dismissed this objection, at the initial stages of this trial, I consider it an abuse for the same objection to be raised again before me in the same trial. For this reason, I dismiss this objection. If I am wrong in taking this position, I address the submission below.

98	The terms of the proposition referenced by the first respondent in fact reflects what Pritchard J said in Andrew Wabiria v Payale Elo [1977] PNGLR 328 at 335 (which Andrew J also quoted with approval in Okuk v Nilkare [1983] PNGLR 28 at 30) thus:

When one looks at s. 215 of the Organic Law it is perfectly clear that the expression illegal practice was intended to describe more than those offences spelt out as such in s. 179 or those in s. 105 and s. 106 of the Criminal Code. If not, why in s. 215(3)(b) was it necessary to exclude undue influence and bribery from the general expression illegal practice if they were not by inference deemed to be included in the first place. They quite clearly were included and in my view all offences in the Code Chapter XIV “Corrupt and Improper Practices at Elections” s. 98-s. 117, Chapter X “Interfering with Political Liberty” s. 78, together with the offences created under Pt. XVII of the Organic Law are all included in the meaning of that expression.
99	In Mune v Agiru (supra), Injia J (with whom Amet CJ agreed), said:

In Okuk -v- Nilkare, supra and Koroba-Lake Kopiago Open Parliamentary Election, supra, their Honours were dealing with “illegal practices” which were criminal “offences” relating to elections, e.g. in Okuk -v- Nilkare, s.191 (offence No. 4) clearly covered the offence Mr. Mori committed, that is, in making a false declaration on his enrolment form as to his age. Also it was a criminal offence under s.187, in that it was an offence for a person to make a false statement in an electoral paper which was punishable by a fine of K300.00.
…
…For instance, recently in Karo -v- Kidu N1626, I said this of an alleged breach of s.151:
… The phrase “illegal practice” as used in s.215 has a statutory definition given by OLNE, s.178(1). The conduct of electoral officials of the kind complained of in clause 10 of the Petition is not included in OLNE, s.178. Section 105 and 106 of the Criminal Code (Ch. 262) also sets out instances of “illegal practices” at an election but the conduct of the electoral officials complained of in this petition is also not included in those two sections….
In the present case, the trial judge accepted that the term “illegal practice” had been given a liberal and extended meaning to include those acts set out in OLNE s.178, as well as ss. 105 and 106 of the Code. The trial judge however stated that the “illegal practices” were confined to those defined in these provisions and the court must not go out of those provision to create new acts to come within those meanings. The trial judge found that the acts complained of did not come within the meaning of these provisions. I accept this statement of principle and findings on the pleading as being correct.
100	Section 79 (formerly s.78 referenced in the quoted passages) falls under “Part II Offences Against Public Order” “Division 5 Offences Against Political Liberty”.

101	The inclusion of s.79 challenges the premise upon which the first respondent has advanced this submission, that is, that an illegal practice for the purpose of the s.215 of the Organic Law does not include an offence contained in any other provision of the Criminal Code other than those provisions under Part XIV Division 3.

102	It seems to me therefore that when an offence under the Criminal Code is relied on (such as s.97B in this instance) to establish a ground in the Organic Law (such as s.215(1) of the Organic Law in this instance) the words of the provision of the Organic Law which contains that ground provides the controlling contexts and meaning, bearing in mind that some of the expressions in the Organic Law such as “bribery” are not defined in that law. 

103	As was observed by Pritchard J in Wabiria v Elo (supra) at 335, “[t]he expression “illegal practice” is one which historically has been used to denote an offence relating to elections.” 

104	It is by this approach that the inclusion of s.79, identified in the passage cited as falling within an “illegal practice” under the Organic Law is understood with reference to any of the grounds under the Organic Law and its application notwithstanding that it falls outside Part XIV Division 3. This can be explained by the fact that the facts upon which that offence might be proven could also support, for instance, the offence under s.108 or allegations of breaches of provisions relating to polling under Part XIII and scrutiny under Part XIV of the Organic Law.

105	I also note that at the time of the decision in Wabiria v Elo (supra) which referred to s.79, s.97B was not part of the Criminal Code.

106	Okuk v Nilkare (supra) and Jabala v Okuk [1983] PNGLR 69 also provides another example. In Okuk v Nilkare, Mr Nilkare was declared the winner of the election having polled 22,287. Mr Okuk polled the second highest of 19,379 and one Wera Mori polled the third highest on 10,953.  Mr Okuk challenged the win on the basis that Mr Mori was under 25 years of age when he contested contrary to s.103 of the Constitution. Mr Okuk succeeded in establishing this ground but was unable to satisfy the court that it was just that the outcome should be disturbed. Mr Mori had declared, as was required of him by s.87 (1) (a) of the Organic Law, that he was qualified under the law to be elected as a member. On his nomination form he indicated he was not under 25 years of age and did not indicate the details of when he was born, which the trial judge found breached ss.187, 191 and 195 of the Organic Law.

107	The untrue statement (Organic Law s.187), false declaration (Organic Law s.191, offence No.4), and forging or uttering (Organic Law s.195) were all founded on s.103 of the Constitution. 

108	Just as s.79 and s.103 of the Constitution could apply to an election-related set of facts raised in an election petition, s.97B is engaged in this instance as the facts alleged relate to the election of the first respondent as the winning candidate.

109	As to the second respondent’s submission, no authority has been cited for the contention. For the reasons I have given in addressing the first respondent’s argument, I am not persuaded by it. To the contention that s.103 is the exclusive offence provision, no case authority has been cited to show that either this court or the Supreme Court has held that an offence other than one which falls under Division XIV.3 (ss.98-116) cannot sustain the ground of bribery under s.215 of the Organic Law.  If Parliament had intended that “bribery” as it is used in s.215 of the Organic Law means bribery under s.103, it would have been a simple exercise of inserting in that section or in s.3 (Interpretation) of the Organic Law a provision which defines bribery as bribery under s.103.

110	Finally, as I alluded to earlier, bribery in s.215 is not defined by the Organic Law in terms of or as it is constituted by bribery in s.103. As I observed in my Objections Ruling, the trial judge in Bourne v Voeto [1977] PNGLR 298 adopted relied on s.102 in this context:

The ground is undue influence. What does this involve? Where has the Court to look to find its definition? Mr. Andrew suggested that the Court should simply apply the words of the Organic Law and arrive at its own definition of what would appear to be undue influence. But I feel on safer ground, as submitted by both Mr. Gregory and Mr. Karczewski, in going to the Criminal Code where the offence of undue influence is constituted by law. …
[emphasis added]

111	After setting out the definition of undue influence in the Criminal Code, the trial judge continued:

The reference to s. 102 of the Code finds some support in the Organic Law, s. 205, which provides that nothing in the Law is to derogate from the provisions of the Criminal Code.
112	For these reasons, I am not persuaded by and therefore dismiss this objection.

113	The first respondent also submits that on the authorities of Kopaol v Embel (2003) SC727; Diau v Gubag (2004) SC775; Waranaka v Dusava (supra); Amet v Yama (supra); Agonia v Karo [1992] PNGLR 463; Nomane v Mori (2013) SC1242; Aihi v Isoaimo (supra); Warisan v Arore (supra); Pokaya v Marape (2018) N7234 and Hagahuno v Tuke  (supra), the law is settled that bribery in s.215 of the Organic Law means bribery under s.103 and nowhere else.

114	This is an extension of the same objection I have just dismissed, advanced on caselaw.

115	In none of these cases was a provision of a law (including the Criminal Code) other than s.103 the basis for the bribery alleged for the purpose of establishing bribery under s.215 of the Organic Law and therefore the issue as to whether the ground of bribery under s.215 of the Organic Law can only be established by proving bribery under s.103 could not have arisen and did not in the discussion in any of these cases.
116	The respondents next submit that in breach of s.208(a) of the Organic Law, insufficient facts have been pleaded to constitute the offence of bribery under s.97B(1)(b) as:

116.1	the pleading does not identify the act constituting the “official act”;
116.2	the pleading pleads both “inducement” and “reward when it can only be either of these elements; and
116.3	the element of “gratification” in respect of an official act can only be for either (a) its performance; (b) abstention from its performance; (c) aiding in its procurement; or (d) aiding in its hinderance.
117	Therefore, it is argued, the inclusion of all these alternatives reflects the absence of relevant and material facts, and in the result the pleading is calculated to embarrass the first respondent in defending the allegation.

118	There is no dispute that insufficient facts to prove all elements of an offence relied on to establish an illegal practice would render a petition incompetent if it was the only ground such facts seek to establish.

119	There also is no dispute that s.97B(1)(b) covers each of those alternative scenarios earlier outlined (in [88.5]) and that the allegation in each Count covers all those alternatives.

120	As is apparent from the pleading in para. 18 of the Petition, the allegation in effect is that the ARO named was offered the gratification to influence him in the execution of his functions and duties.

121	It is clear therefore that the petitioner does not rely on one specific act or omission but the conduct of the ARO named throughout the course of the Elections.

122	The issue is whether the pleading which does not include facts to identify the offending conduct against a duty or function and how it was discharged suffices for the purpose of proving the “official act” and how the named ARO discharged his functions.

123	I have referred to some definitions of a “bribe” and “bribery” earlier.

124	As Sheehan J in Agonia v Karo (supra) at 469-470 said:
Without analysing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election.  Whether those inducements are made to an elector – defined as any person entitled to vote at any election – or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.
It is also clear that there is in s.103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice.  It is clear, therefore, that intention is an integral part of the offence.  Such phrases as offering gifts, benefits, or inducements on “account of”, or “in order to induce”, or “with the intent that”, are all phrases that show that the purpose of offering the inducement is an element of the offence…..  
In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election
[emphasis added]

125	In addition to what was said in Kikala v Mangape (supra) para. 25, (in [77]) as to the nature of bribery, in some instances, it also may not be known if the bribe had any influence at all, and if it did, the act, omission or conduct induced by the bribe.

126	I accept these statements and observations as applicable to the offence under consideration.

127	The offence is committed notwithstanding that the person employed in the Public Service had no right or opportunity to show or refrain from showing favour.

128	Thus, the essence of bribery is the offer or the provision of a gratification to influence the conduct of a person.
129	Section 97B falls under Part III which contains offences against the administration of the law and justice and against the public authority, and thus the essence of it is that the execution and discharge of the official functions or duties, the public authority must not be influenced by any inducement or reward so that the integrity of an election process and the credibility of its outcome is not tainted.

130	The second respondent is an authority responsible for the administration of the law on elections.

131	The allegations as pleaded in this instance are clear and sufficient. 
 
132	For these reasons, I dismiss this objection.

133	Returning to the elements of the offence, the petitioner must prove that each of Mr Kempa and Mr Wirye as ARO was a “… person employed in the Public Service”, which is defined in s.83A.  This raises the issue whether the second respondent is a body or corporation established by “…statute…” within s.83A(g).

134	I have found earlier that each of Mr Kempa and Mr Wirye was an ARO.

135	For each Count, the Petition cites s.83A(g) as the basis upon which the petitioner alleges that an ARO is a person employed in the Public Service.

136	No submissions were made on whether the second respondent is “… a body or corporation established by statute” as is provided for in s.83A(g).

137	The second respondent submits that s.97B is not intended for such offences committed in election-related circumstances, which I have considered and addressed earlier.
138	The first respondent made no submission specific to this issue; the submission that s.97B does not apply has been considered earlier and dismissed. 

139	A “statute” referred to in s.83A(g) is not defined in the Criminal Code or the Interpretation Act.  

140	The Osborne’s Concise Law Dictionary defines “statute” at page 310 as “an Act of Parliament, particularly a Public Act”. 

141	The Interpretation Act, however, defines “statutory provision” to include a provision of an Act of Parliament but not of a Constitutional Law, which under Schedule 1.2.2(1) of the Constitution is the Constitution or an Organic Law.

142	The second respondent was established under the predecessor to the  Organic Law pursuant to s.126(7)(a) of the Constitution and its establishment is continued by s.5 of the Organic Law.

143	An ARO is, pursuant to s.20(1) of the Organic Law, appointed by the second respondent to assist a Returning Officer who is also an officer appointed pursuant to s.19(1) of the Organic Law to give effect to the Organic Law for an electorate subject to the directions of the second respondent and is therefore an officer of the second respondent. 

144	The definitions of a “Constitutional Law”, and “Act of the Parliament” and “statute” in Schedule 1.2.2 of the Constitution for a Constitutional Law are in harmony with the definitions of a “statutory provision” in the Interpretation Act and the definition of a “Statute” in Osborn’s Concise Law Dictionary. 

145	I conclude for these reasons that a “statute”  referred to in s.83A(g) does not include the Organic Law.

146	In the result I could not find that the second respondent is established by statute within the meaning of s.83A(g).

147	However, I find that an ARO is a person employed in the Public Service within the meaning of s.83A(c) for these reasons.  A “constitutional institution” is defined in s.83A(c) as “…any office or institution established or provided for by this Constitution, …”. As alluded to a moment ago, the second respondent was established pursuant to s.126 of the Constitution by the predecessor to the Organic Law, and whose existence is continued by s.5(1) of the Organic Law. It is therefore a constitutional institution.

148	By s.5(2) of the Organic Law, the second respondent is constituted by the Electoral Commissioner. As noted earlier, an ARO is an officer appointed by the second respondent to support in undertaking and discharging the functions of a Returning Officer who undertakes and discharges the functions and duties of the second respondent in respect of an electorate. In the ordinary sense of the words, an ARO is an employee or officer of the second respondent.

149	I am not prevented by the law pleaded in each Count (s.83A(g)) from considering and applying s.83A(c) for these reasons:

149.1	as was held in Holloway v Ivarato (supra), it is from the facts pleaded that one ascertains whether a ground is disclosed;
149.2	as the Supreme Court in Mune v Agiru (supra) (Woods J with whom Amet CJ agreed) observed, s.208 (a) of the Organic Law does not require the law to be pleaded; only the facts. This proposition is now authoritatively settled by the Supreme Court in Hagahuno v Tuke (supra); and
149.3	as the Supreme Court in Mune v Agiru (supra) also observed, the incorrect categorisation of a ground based on the facts pleaded does not render incompetent a petition so long as a ground in the Organic Law is disclosed from those alleged facts.
150	For these reasons, I find that an ARO is a person employed in the Public Service within the meaning of s.97B(1)(b).

151	Returning to the remaining elements of the offence, I make these observations. First, in s.103, the payment is described as “property or benefit”. In s.97B, it is described as “gratification” which is defined in s.1(1) to include money.

152	In s.103, “gives” is used and in s.97B “offers” is used to describe the act of conveying the property or gratification. The latter expression can be understood by reference to s.97C which gives the recipient of the gratification the benefit of doubt to disassociate himself from it. 
153	Therefore, the difference in terminology makes no difference in this instance as neither of the ARO named has stepped forward to suggest that he has taken steps in accordance with s.97C.

154	Except for the last element of the offence that an ARO must be a person employed in the Public Service, which I have found that each of the ARO named is, the evidence in support of these Counts is the same I considered earlier in respect of Counts 1 to 4.

155	The purpose, which is the last element of the offence under s.103 as I have listed them is directed at the end-result for which the bribe was given to achieve. The corresponding element under s.97B is directed at influencing or corrupting the conduct of the Public Servant in his approach, action, omission or conduct towards the execution and discharge of his official functions as his incentive for performing his official functions is his remuneration under his conditions of employment as an ARO and so the payments he received were additional incentives which, when unexplained and not from his employer, invites the inference I have drawn that the payments were bribes. In support of this inference, under s.97C, as recipient of the payment, each ARO named was obliged to report the gratification offered. He has not been called to say if he has taken such step or explain his receipt of these payments. If the offence was prosecuted under the Criminal Code, pursuant to s.97D(6), where it is proved that a gratification has been paid to or received by a person employed in the Public Service, that gratification is deemed to have been paid and received corruptly, as an inducement or reward, unless the contrary is proved. In that regard the objective is the same and it is immaterial under s.97B(2) that the Public Servant had no right or opportunity to show or refrain from showing favour. 

156	Otherwise, as the first 5 elements of both offences as I have listed them are, in this instance, in effect the same, for these reasons and those given in support of the findings earlier made (in [57] and [81]), in determining these elements of this offence for each of Counts 5 to 8, I adopt those findings; the purpose of the first 4 payments being an inducement for each ARO named to undertake in whatever way favourable to the first respondent his functions as an ARO and the last payment being a reward for Mr Wirye.
157	With respect to Count 9 which concerns the K2,500 payment, there is no allegation, evidence or submission as to what Mr Wirye or for that matter an ARO might have been required to undertake after the declaration of the first respondent as the winning candidate.  At the time of this payment, the first respondent had already been declared the Electorate’s parliamentary representative. No submission has been made on whether, following his declaration, the first respondent as the winning candidate falls within s.97B(1) and s.215(1) of the Organic Law.

158	Although I have found that this payment was a reward paid in connection with events relating to Mr Wirye’s role as an ARO following the first respondent’s nomination to contest the parliamentary seat for the Electorate to the date he was declared the winning candidate, that is, when he was a candidate, guided by the use of “… a candidate …” in s.215 (1) of the Organic Law , I could not extend the reference  to the first-mentioned “…person…” in s.97B(1) to a winning candidate after his declaration as such. This conclusion, it appears, is not  inconsistent with  Ilaibeni v Morris (2023) N10154 cited as authority for incompetence from pleading insufficient facts to establish bribery under s.103 where, as I understand it, the petition was held incompetent because the facts alleged did not disclose the offence as those facts were based on events when the first respondent there had yet to nominate as a candidate, which is not the same as the failure to plead sufficient facts.

159	For these reasons, in respect of Count 9, I could not be satisfied that s.97B(1) applies to the first respondent after his declaration as the winning candidate. This goes to the first element of the offence as I have listed them. 

160	Otherwise, for the reasons given, the petitioner has proven to my entire satisfaction the offence of bribery under s.97B(1)(b) on Counts 5, 6, 7 and 8.

161	This is a civil proceeding in which the Counts under s.97B involves an additional element, hence the 9 Counts although they all arise from the same 5 payment instances.

162	For the reasons given:

162.1	I dismiss Count 9; and
162.2	I find that the first respondent committed bribery within the meaning of s.215 (1) of the Organic Law on each of Counts 1, 2, 3, 4, 5, 6, 7 and 8.

163	By s.216 of the Organic Law the Registrar is obliged to –

163.1	promptly report these findings to:
(a)	the Speaker;
(b)	the Electoral Commission;
(c)	the Public Prosecutor; and
(d)	the Commissioner of Police; and
163.2	forward all papers relevant to the findings herein to the Commissioner of Police.
164	Under s.215(1) of the Organic Law, the consequence of the commission of bribery is that the election of the first respondent must be declared void.  The consequence of that is that an order should follow pursuant to s.212(3) of the Organic Law that a By-Election for the Electorate be conducted.

165	The petitioner claims costs of this Petition against the first respondent.  Having rejected the explanations for the payments, it is appropriate that the first respondent meets such costs.

Outcome of Petition
166	The orders are:

166.1	The Petition is upheld.
166.2	The election of the first respondent as the successful candidate for the Aitape-Lumi Open Electorate is, on account of the bribery he has committed, declared void.
166.3	The second respondent shall conduct a By-Election for the Aitape-Lumi Open Electorate.
166.4	The petitioner’s K5,000.00 security deposit be refunded forthwith.
166.5	The first respondent shall pay the petitioner’s costs of this Petition, to be taxed on a party and party basis if not agreed.
166.6	The time for entry of these orders is abridged.
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Young & Williams Lawyers: Lawyers for the Petitioner
Manase & Co. Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent