SC1684

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 17 OF 2018

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
BEDE TOMOKITA
Applicant

AND:
DOUGLAS TOMURIESA
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2018: 8th, 15th May

Application for leave to review

Cases cited: 

Desmond Baira v. Kilroy Genia (1998) SC579
Eric Ovake Jurvie v. Bony Oveyara (2008) SC935
Aide Ganasi v. Sali Subam (2013) SC1277 
Isi Henry Leonard v. Gordon Wesley (2014) N6552 
Waim No. 85 Ltd v. The State (2015) SC1470
Poko Kandapaki v. Enga Provincial Government (2015) SC1463

Counsel:

Mr. R. Diweni, for the Applicant
Mr. D. Dotaona, for the First Respondent
Mr. M. Mininga, for the Second Respondent

15th May, 2018

1. HARTSHORN J: This is a decision on a contested application for leave to review the decision of the National Court which dismissed the applicant’s election petition. The application for leave is made pursuant to Order 5 Rule 9 Supreme Court Rules 2012.

Background

2. The first respondent was declared the elected Member of Parliament for the Kiriwina Goodenough Open Electorate in the 2017 General Elections. The applicant unsuccessfully petitioned the first respondent’s election. The primary judge dismissed the applicant’s election petition after upholding the first respondent’s no case submission.

Application for Leave - Law

3. The criteria for the exercise of this court’s discretion on an application for leave to review an election petition are whether there is an important point of law to be determined and that it is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court: Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 at [9]. In the view of Injia DCJ (as he then was) at [11]:

“The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed.”

4. I respectfully concur with His Honour’s comments and mention that notwithstanding that an application for leave is provided for under Order 5 Rule 9 Supreme Court Rules 2012, it is the case that s. 220 Organic Law on National and Local-level Government Elections (Organic Law) is in the following terms:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

5. It is, in my view, in the context of the intention of the Parliament expressed in this provision, whilst of course, respecting the paramountcy of s. 155(2)(b) Constitution, that for an application for leave to review an election petition the, “…. standard of satisfaction must be set rather high”, as stated in the Supreme Court in Waim No. 85 Ltd v. The State (2015) SC1470 at [7] and Poko Kandapaki v. Enga Provincial Government (2015) SC1463 at [8].

This application 

6. The applicant submits in essence that there are gross errors of fact clearly apparent on the face of the evidence before the Court. Those errors are that three persons who were alleged to be electors and were alleged to be bribed, were found by the primary judge not to have been registered voters. It is submitted that the evidence before the Court shows that the three persons were so registered.

7. Secondly, the applicant submits that there are errors of law or of mixed facts and law. Five persons gave evidence that they voted and their names were on the common roll but were incomplete. The primary judge found them not to have been registered voters.

8. Thirdly, the applicant submits that the evidence of three electors who gave evidence that they each were bribed by receiving K20.00 from K10,000.00 presented by the first respondent, was rejected by the primary judge as they did not explain the customary practice of Katuyuvisela valu. This was the justification for the first respondent presenting K10,000.00. The applicant submits that the primary judge fell into error in determining that an expert witness on customary practice should have been called by the applicant.

9. Fourthly, the applicant submits that in assessing the evidence given on behalf of the applicant to the criminal standard and dismissing it without considering the respondent’s evidence, the primary judge fell into error in not identifying whether there was a prima facie case. The primary judge also erred in adopting a restrictive and technical approach in assessing the evidence given on behalf of the applicant contrary to s. 217 Organic Law.

10. The first respondent, supported by the second respondent, submits amongst others, that the grounds relied upon for leave to review are too general, lengthy, convoluted and vague. The grounds do not raise important points of law which have merit and do not raise gross errors of fact which are so outrageous or absurd to result in injustice.

11. Further, the first respondent submits that the application for leave should be dismissed as the applicant did not lead any evidence in the National Court to the effect that he was a candidate and a petitioner, and therefore failed to prove his standing and bona fides.

Consideration

12. In regard to the submissions that there are gross errors of fact and law or mixed facts and law concerning persons found not to be registered voters by the primary judge but that they are so registered (alleged bribed registered voters), in the Supreme Court case of Aide Ganasi v. Sali Subam (2013) SC1277, which case was relied upon by the applicant, the Court engaged in a detailed consideration of the requirements in law and evidence for an elector and at [16] stated:

“The law is that even if the common roll is tendered, the person must identify his name on the role as was done in Ben Micah.”

13. At [21] and [22] of the primary judge’s decision, he refers to the task of the Court not being made easier and the delay in the decision, as the primary judge had to go through and verify names on the Common Roll. It is evident from this that the alleged bribed registered voters did not identify their names on the Roll as required in Ganasi (supra). This was to an extent, conceded by counsel for the applicant. Given this, I am not satisfied that it has been demonstrated that these grounds are such that if leave is granted, the application for review is likely to succeed as a requirement of the Supreme Court stated in Gansi (supra) has not been satisfied. I mention also, that it is for the petitioner to prove his case to the requisite standard and not for the Court to make the case for the petitioner.

14. As to the submissions concerning the primary judge’s consideration of amongst others, bribery allegations at Kavataria Village and the evidence of the customary practice of Kaluyuvisela valu; the applicant complains that the primary judge erred in determining that an expert witness on customary practice should have been called by the applicant.

15. From a perusal of the written decision, the primary judge formed the view that as it had been raised that the presentation of money by the first respondent was made in performance of the customary practice, that this was to be a defence of the first respondent and that it had been pleaded in paragraph 2.7 of the petition; and as the onus is upon the petitioner to prove his case, and not to rely on the defence to call evidence so that the petitioner’s case may be improved; to close all possible alternate inferences the applicant should have called other evidence to the effect that the presentation of money by the first respondent was not required to be given pursuant to the customary practice or was contrary to the customary practice. As the applicant did not call such other evidence, the primary judge was not satisfied that the applicant had proved to the requisite standard essential elements of bribery.

16. To my mind, from a perusal of the primary judge’s reasoning in this regard, I am not satisfied that it has been demonstrated that the primary judge fell into error. Further, the applicant has not demonstrated that the grounds concerning this issue are such that if leave is granted, the application for review is likely to succeed.

17. As to the submissions concerning the primary judge falling into error in assessing the evidence given on behalf of the applicant to the criminal standard and dismissing the petition, instead of identifying whether there was a prima facie case and allowing the first respondent to present his case; Kapi DCJ (as he then was) in Desmond Baira v. Kilroy Genia (1998) SC579 said at p5

“…. whether, or not, a judge should stop a case at the close of the petitioner’s case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.”

18. The allegations in the petition concern bribery. As Kariko J. said in Isi Henry Leonard v. Gordon Wesley (2014) N6552 at [17]:

“17.	    As bribery involves the application of the serious criminal offence of bribery prescribed under s. 103 of the Code, the petitioner bears the onus of proof in proving the allegations. The standard of proof is to the entire satisfaction of the Court and that is equivalent to or just short of the criminal standard of proof, namely proof beyond reasonable doubt; see Neville Bourne v Manasseh Voeto (1977) PNGLR 298; Peter Waranaka v Gabriel Dusava (2009) SC980; Aide Ganasi v Sali Subam (2013) SC1277.”

19. Section 217 Organic Law does not state that in being guided by its provisions, that a lesser standard of proof should apply where bribery is alleged. 

20. Further, as to the applicant’s submission that it is in the interests of justice that a less restrictive and technical approach should be adopted in assessing evidence, it must be remembered that all parties are entitled to justice and it is in the interests of justice that a person alleged to have committed what constitutes a serious criminal offence should only be found to have committed such an act if so proved beyond reasonable doubt.

21. It has not been shown in my view that the primary judge fell into error in his consideration of the evidence and in dismissing the petition at the stage of the hearing that he did. Further, it has not been demonstrated by the applicant that if leave was granted, the application for review would be likely to succeed. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

22.  It is ordered that:

a)	The application for leave is dismissed;
b)	The costs of both respondents of and incidental to this proceeding shall be paid by the applicant.	

____________________________________________________________
Diwenis Lawyers: Lawyers for the Applicant                                             
Baniyamai Lawyers:  Lawyers for the First Respondent                                  
Harvey Nii Lawyers: Lawyers for the Second Respondent