SC2496
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 4 OF 2023

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

HENRY JONS AMULI
Applicant

V

DELILAH PUEKA GORE
First Respondent

ELECTORAL COMMISSION 
Second Respondent

Waigani: Cannings J, Lindsay J, Tusais J
2023: 30th October, 24th November

ELECTIONS – election petition – bribery – Organic Law on National and Local-level Government Elections, s 215 – whether bribery committed with knowledge or authority of successful candidate – whether sufficient evidence of knowledge or authority – petitioner’s hostile witness – whether proper for trial judge to rely on affidavit evidence of hostile witness in preference to oral testimony. 

The National Court upheld two grounds of an election petition based on s 215 of the Organic Law on National and Local-level Government Elections. The Court found that a campaign coordinator of the successful candidate committed bribery offences with the knowledge and authority of the successful candidate. The election was declared void. The successful candidate was granted leave to apply to the Supreme Court for review of the decision of the National Court. He argued that the trial judge erred by: (a) finding without evidence that bribery was committed with the knowledge and authority of the applicant as the only witness to that alleged knowledge and authority became hostile to the petitioner (the first respondent) at the trial and gave sworn oral testimony that his affidavit was false, and therefore none of his evidence could be relied on; (b) failing to put the burden of proof on the petitioner and finding allegations proven without sufficient evidence; (c) declaring the election void without regard to the requirements of s.215(3) of the Organic Law; and (d) failing to administer justice in accordance with the rules of evidence and s 158(2) of the Constitution.

Held: 

(1)	The trial judge was not bound to disregard the prior affidavit evidence of the hostile witness and was in the best position to determine whether he was telling the truth in his affidavit or in his oral testimony, having regard to the judge’s assessment of his demeanour and that of all witnesses and the fact that the affidavit was admitted into evidence without objection and that the witness became hostile without notice to the first respondent. The judge made a rational and logical decision to give weight to the affidavit evidence of the hostile witness. The judge was not, due to s 217 of the Organic Law, bound by the rules of evidence (which might have required no weight to be given to the affidavit evidence of the hostile witness), and made no error of fact or law in concluding that the first respondent proved to the entire satisfaction of the court that bribery was committed with the knowledge and authority of the applicant. 

(2)	The trial judge did not put the onus of proof on the applicant and made no error of fact or law in finding that the applicant’s campaign coordinator told a person to whom he gave K20.00 that he had to vote for the applicant and upholding ground 4 of the petition. 

(3)	As the judge found that bribery was committed on three occasions with the knowledge and authority of the successful candidate, it was not necessary for the court to be satisfied that the result of the election was likely to be affected by the bribery and that it was just that the election be declared void.

(4)	The trial judge addressed the grounds of the petition in a rational, logical and coherent manner. The approach to the evidence was measured and objective, not speculative and subjective.

(5)	The application was refused and the decision of the National Court was affirmed. 

Cases Cited:

Papua New Guinean Cases
The following cases are cited in the judgment:
Amuli v Gore & Electoral Commission (2023) SC2399
Fairweather v Singirok [2013] 2 PNGLR 95
Gore v Amuli & Electoral Commission (2023) N10114
Isoaimo v Aihi [2012] 2 PNGLR 337
Paul Akis Soti v The State SCA 21/92 (unreported)
Saka v The State (2003) SC719
Simitab v Isifu (2018) N7076
Talita v Ipatas [2016] 1 PNGLR 30
The State v Itaar (2013) N5557
Warisan v Arore [2015] 1 PNGLR 315
Yagama v Uguro (2018) SC1682

Overseas Cases
Briginshaw v Briginshaw (1938) 60 CLR 336

Counsel
S G Dewe & E Wembri, for the Applicant
D Kipa & R Kelly, for the First Respondent
J Simbala, for the Second Respondent

24th November 2023

1.     BY THE COURT: This is an application for review of the decision of the National Court in an election petition.

2.     Henry Jons Amuli was the successful candidate in the 2022 general election for the Sohe Open seat. Delilah Pueka Gore, an unsuccessful candidate, disputed the validity of his election in a petition addressed to the National Court, EP No 38 of 2022. 

3.    There were four grounds of the petition. Grounds 1 and 2, which alleged that Mr Amuli had committed bribery, were abandoned at the trial. Grounds 3 and 4 alleged that bribery was committed by another person with Mr Amuli’s knowledge and authority and those grounds went to trial.

4.     After a trial at Popondetta the National Court, constituted by Acting Judge Wurr, upheld grounds 3 and 4. Her Honour found it proven that:

•	for ground 3, on 7 July 2022 at Torogota village, shortly before polling, a campaign coordinator for Mr Amuli, Dennis Porari, gave elector Elvis Katuho K50.00 cash and elector Pauline Kesira K100.00 and said “Votim candidate blo me, Henry Amuli”; and 

•	for ground 4, on 6 July 2022 at Torogota village Dennis Porari gave elector Graham Ita K20.00 cash and said “Son kaikai na tingim candidate blo me, Henry Amuli”.

5.    Her Honour found that the offence of bribery under s 103(a)(iii) of the Criminal Code was committed as alleged in grounds 3 and 4 and that had occurred with the knowledge and authority of Mr Amuli. Her Honour found that the requirements of s 215(3) of the Organic Law on National and Local-level Government Elections were met. It was declared amongst other things that Mr Amuli was not duly elected and that his election was absolutely void (Gore v Amuli & Electoral Commission (2023) N10114). 

6.    Mr Amuli was granted leave to apply to the Supreme Court for review of the decision of the National Court (Amuli v Gore & Electoral Commission (2023) SC2399). His application for review pleads seven grounds of review but some overlap and the principal arguments can be reduced to four. He argues that the trial judge erred in law by:

(a)	finding without evidence that bribery was committed with the knowledge and authority of the applicant as the only witness to that alleged knowledge and authority became hostile to the petitioner (the first respondent) at the trial and gave sworn oral testimony that his affidavit was false, and therefore none of his evidence could be relied on (grounds of review 1 and 2); 

(b)	failing to put the burden of proof on the first respondent and finding without sufficient evidence that the applicant’s campaign coordinator told a person to whom he gave K20.00 that he had to vote for the applicant (grounds 3, 4 & 5); 

(c)	declaring the election void without regard to the requirements of s 215(3) of the Organic Law (ground 6); and

(d)	taking a subjective, rather than objective, approach to the evidence, including taking a preconceived and speculative view of the applicant’s witnesses (ground 7).

7.    Mr Amuli is the applicant in this Supreme Court review. The petitioner in the National Court, Ms Gore, is first respondent and the Electoral Commission is second respondent. The first respondent opposes the application. The second respondent supports it.

8.     We now address the four principal arguments in the grounds of review.

(a)	FINDING WITHOUT EVIDENCE THAT BRIBERY WAS COMMITTED WITH KNOWLEDGE AND AUTHORITY OF THE APPLICANT

9.    In finding that the offences of bribery alleged in grounds 3 and 4 of the petition were committed with the knowledge and authority of the applicant, the trial judge relied on the affidavit evidence of John Siriri (that on 4 July 2022 he, with two other persons, was given cash by the applicant and told that it belonged to the voters, so take it and share it amongst the voters) and rejected the oral testimony of the applicant’s witness, another of his campaign coordinators, Brendy Toare Kerohari (denying that the applicant gave him and John Siriri cash and instructed them to give it to voters). Her Honour observed that Mr Kerohari gave contradictory answers to a simple question whether John Siriri had accompanied the applicant and his witnesses to the trial. Her Honour found that his evidence was unsatisfactory and that he had a motive to lie and that he was not a witness of truth.

10.    John Siriri came into the witness box as a witness for the petitioner (the first respondent in this review). He was sworn in and he adopted his affidavit, and it was admitted into evidence without objection. But in cross-examination he said the evidence in his affidavit was false and that he was forced to sign his affidavit and was threatened. Her Honour explained why she rejected his oral testimony and accepted his affidavit evidence in the following terms:

John was a witness for the petitioner until he turned hostile on the date of trial. When called upon to give evidence, he identified his affidavit and it was tendered into evidence without any objection by the Respondents. Mr Lai asked John only one question during cross-examination, which was whether certain vital parts of his affidavit were true. He swiftly answered in the negative and stated that those evidence were not true. He further testified that he was forced and threatened by the Petitioner to give the evidence which was contained in his affidavit. I was somewhat surprised and shocked, to say the least, that he answered Mr Lai’s question without hesitance and even looking at his own affidavit to confirm which paragraphs Mr Lai was referring to. 

I am convinced that John was coached by the first respondent and/or his witnesses to deny his own affidavit evidence. I therefore refuse to accept his oral testimony given in Court for following reasons:

•	His demeanour and the manner he answered the only two questions put to him, seemed that he was coached.
•	The petitioner’s witnesses gave consistent and corroborated evidence that John willingly and freely gave his statement and signed his affidavit as they did; that they were all not threatened in anyway as claimed by John in his oral evidence. 
•	John’s claim that he was threatened by the petitioner is uncorroborated and lacking in weight.

His affidavit evidence, on the other hand, was an honest and truthful account of what he witnessed, and I accept it. It is detailed and gives a clear account of what he witnessed on 4 July, two days before polling.  

11.     The applicant argues that:

(i)	it was not open to her Honour to accept the affidavit evidence of the hostile witness because of the common law principle that a prior inconsistent statement of a hostile witness is inadmissible;

(ii)	the prior inconsistent statement was akin to the evidence of an accomplice in a criminal trial, so it could not be used in this case against the applicant unless it was corroborated and only if the judge expressly issued a warning of the danger of finding against the applicant on the uncorroborated evidence of the hostile witness; and

(iii)	the trial judge disregarded the requirement that the allegation against the applicant be proven to the entire satisfaction of the court.

12.     For the argument in (i), counsel for the applicant, Mr Dewe, relies on an unreported decision of the Supreme Court in a case described as Paul Akis Soti v The State SCA 21/92 (unreported). Counsel did not provide us with a copy of the judgment and we have been unable to locate a copy anywhere. We do not know who the Judges were or the date of the judgment. We note, however, that it was referred to by Geita AJ as he then was in The State v Itaar (2013) N5557 and that his Honour quoted from it in the following terms:

The effect of the witness being declared hostile is generally to render the witness unreliable. If he has given a prior statement which is inconsistent with his oral testimony both statements are rendered negligible, and neither constitutes evidence which can be relied upon. We adopt these propositions from the following English cases as being appropriate and applicable to the circumstances of criminal law in the country, R v Harris 20 Cr App R 144, R v Golden 45 Cr App R 5. … By declaring a witness hostile, it simply is not possible to render his affidavit deposition credible evidence, in substitution for direct oral evidence.

13.    We are prepared to accept for present purposes that there is a Supreme Court judgment in the case described and that the Supreme Court said what they are reported as saying. It is hardly ironclad authority but we are prepared to accept that the dicta is representative of a line of authority that alerts judges to the inherent danger in accepting the prior inconsistent statement of a witness who has been declared hostile. However, the proposition ought not to be elevated to a rule of evidence that says every hostile witness is unreliable and whatever he has said before his oral testimony in court is inadmissible or has no probative value.

14.    If there were a rule of evidence that the evidence of a hostile witness is inadmissible, this was an election petition trial, not a criminal trial. Although the grounds of the petition were based on commission of criminal offences by a campaign coordinator of the applicant and it was a serious matter and the trial judge was obliged to put the petitioner to a high standard of proof, to be entirely satisfied of proof of the elements of the offence (Warisan v Arore [2015] 1 PNGLR 315), her Honour was not obliged to apply the rules of evidence. Quite the contrary. Section 217 (real justice to be observed) of the Organic Law applied:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

15.    Her Honour was not bound to disregard the prior inconsistent affidavit evidence of the hostile witness. We consider that her Honour was in the best position to assess whether he was telling the truth in his affidavit or in his oral testimony, having regard to the judge’s assessment of his demeanour and that of all the witnesses and the fact that the affidavit was admitted into evidence without objection and that the witness became hostile without notice to the first respondent. 

16.     Her Honour made a rational and carefully considered decision to give weight to the affidavit evidence of the hostile witness. Section 217 of the Organic Law obliged the court to be guided by the substantial merits and good conscience of the case. In our view her Honour discharged that obligation. There was no error of fact or law in her Honour’s conclusion that the first respondent had proven to the entire satisfaction of the court that bribery was committed as alleged in counts 3 and 4 of the petition with the knowledge and authority of the applicant. 

17.    We find little merit in the next argument, (ii), that an analogy should be drawn between the process of reasoning required in an election petition trial and the process of reasoning required in a criminal trial in which an accomplice is called to give evidence. The principles surrounding conviction of an accused in a criminal trial based on the testimony of an accomplice, outlined by the Supreme Court in Saka v The State (2003) SC719, have no mandatory application in an election petition trial. There was no requirement that the evidence of the hostile witness be corroborated. There was no requirement that the trial judge warn herself of the danger of upholding the petition based on the uncorroborated affidavit evidence of one witness. This is not to say that it was not desirable for there to be corroborating evidence. It is invariably desirable to have such evidence. However, as a matter of law, it was not essential to have it. The trial judge was entitled to make a finding on the question of whether the illegal practices of the applicant’s campaign coordinator were committed with his knowledge and authority based on all the evidence before the court. Her Honour did not err by not insisting on corroboration or by not warning herself of the danger of upholding the grounds of the petition without corroboration of evidence. 

18.     As to the argument in (iii) that the trial judge did not apply a correct standard of proof, we point out that her Honour expressly dealt with this issue at paragraphs 21 to 25 of her judgment under the heading “What is the standard of proof?” Her Honour said at paragraph 23:

This issue was settled by the Supreme Court (consisting  of their Honours Gavara Nanu J, Yagi J, & Poole J) in John Warisan v David Arore & Electoral Commission (2015) SC1418. The highest court held that in election petition cases, the criminal standard should not be insisted on as the relevant standard of proof is “to the entire satisfaction of the Court”. This means the petitioner must prove all elements of the offence alleged to the entire satisfaction of the Court.

19.     Mr Dewe suggested that the correct standard of proof is akin to what is known in Australia as the Briginshaw standard, deriving from the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336. The principle is that the more serious an allegation is, the more substantial the evidence must be, to prove the allegation. So the argument is that this was a serious allegation of criminal offences being committed with the knowledge and authority of the successful candidate, therefore substantial evidence was required, but it was absent. This standard of proof has been adopted in PNG, in an election petition case, Yagama v Uguro (2018) SC1682. We acknowledge that that is so, but we are not persuaded that there is any material difference between saying that the standard of proof is to the entire satisfaction of the Court or saying that the court must apply the Briginshaw standard. The trial judge did not apply an incorrect standard of proof.

20.    It has not been shown to our satisfaction that the trial judge erred in finding that bribery was committed with the knowledge and authority of the applicant. We dismiss grounds 1 and 2 of the application for review.

(b)	FAILING TO PUT THE BURDEN OF PROOF ON THE PETITIONER AND FINDING ALLEGATIONS PROVEN WITHOUT SUFFICIENT EVIDENCE

21.     Grounds of review 3, 4 and 5 relate to ground 4 of the petition. The trial judge found in ground 4 that on 6 July 2022 at Torogota village Dennis Porari gave elector Graham Ita K20.00 cash and said “Son kaikai na tingim candidate blo me, Henry Amuli”. Her Honour summarised the evidence of Graham Ita and his friend Cecil Pengita in the following terms:

Evidence for the Petitioner came from Graham and Cecil Pengita (herein referred to as ‘Cecil’).  Graham testified that on 6 July between 7:00 pm and 8:00 pm, he walked to Cecil’s house to buy smoke. When he stood there, Dennis was there and gave Cecil K50 and bought sugar and 3-in-1 coffee. When Dennis saw Graham he told him to go over to him and he gave him a K20 from the change he received from Cecil and told him to buy smoke. Graham walked over, accepted the money and bought smoke. Dennis then left and as he was leaving he walked past Graham and said these words “Son, kaikai na tingim candidate blo me Henry Amuli” translated as “Son, eat and think of my candidate Henry Amuli”. Graham was not planning to vote for the first respondent because he was the supporter of another candidate, but because of the K20 he received from Dennis and the words spoken to him by Dennis, he gave his 1st preferential vote to the first respondent. 

Cecil’s evidence basically corroborated that of Graham’s. At the material time Dennis went to his market table and gave him K50. He bought sugar and 3-in-1 coffee packet. He gave Dennis his change and saw Dennis give Graham K20. Cecil testified that there were some boys around the area including Dennis’ wife who witnessed what happened. However, in his evidence – both written and oral – he did not mention whether he heard Dennis say anything to Graham. Apart from that, the rest of his evidence generally corroborates Graham’s evidence.  

22.    Dennis Porari gave evidence for the applicant, flatly denying the allegations. However, her Honour was not impressed as the evidence lacked corroboration, explanation and detail; and she had already found that Dennis Porari was an unimpressive witness.

23.    The trial judge found that the offence of bribery was proven to the entire satisfaction of the court and that the offence was committed by Dennis Porari with the knowledge and authority of the applicant. Her Honour stated that she was satisfied that the requirements of s 215(3) were met and upheld ground 4 of the petition.

24.     The applicant argues that her Honour erred in fact and law in upholding ground 4 of the petition as:

(i)	there was no corroboration by Cecil Pengita of the evidence of Graham Ita that Dennis Porari, when giving him K20.00, told him to think of his candidate, Henry Amuli; 

(ii)	there was a material inconsistency in the affidavit evidence of Graham Ita and Cecil Pengita as Cecil gave no evidence that Dennis Porari said anything to Graham Ita about thinking of his candidate when he gave him the K20.00;

(iii)	the burden of proving the allegation was not put on the first respondent; and

(iv)	no attention was paid to the element of the offence of bribery that the recipient of the alleged bribery be an elector. 

25.    As to (i), corroboration of Graham Ita’s evidence was not required. The trial judge was entitled to make a finding of fact based on the evidence of one witness. In fact, there was some corroboration of the evidence of Graham Ita in the evidence of Cecil Pengita. Her Honour accepted Graham Ita’s evidence as she was entitled to do. She rejected Dennis Porari’s denials. She assessed him as not being a witness of truth. No error of fact or law has been established.

26.    As to (ii) there was no material inconsistency between the evidence of Graham and Cecil. Her Honour acknowledged that Cecil did not say that he heard Dennis say the words attributed to him about Graham voting for his candidate Henry Amuli. That does not make Cecil’s evidence inconstant with Graham’s evidence. 

27.     The argument in (iii) that the trial judge did not put the burden of proving the allegation on the first respondent (as petitioner) is without merit. Her Honour stated at the outset of determination of ground 4 of the petition:

The issue is whether the Petitioner has proven to the entire satisfaction of this Court that Dennis gave K20 to Graham Ita … at the at the relevant place, date and time as alleged.

28.     Her Honour stated at the end of consideration of whether bribery had been committed, and before consideration of the question of whether it was committed with the knowledge and authority of the applicant:

All in all, I am satisfied that all three elements under s 103(a)(iii) of the Criminal Code have been proven to the entire satisfaction of the Court. 

29.     Her Honour was clearly aware of where the burden of proof lay and what the standard of proof was.

30.     As to the claim in (iv) that her Honour paid no attention to the element of the offence of bribery that the recipient of the alleged bribery be an elector, we query whether that is an element of the offence under s 103(a)(iii) of the Criminal Code that was the subject of ground 4 of the petition. Her Honour, in our view, properly described the elements of the offence at paragraph 18 of her judgment in these terms:

Under s 103(a)(iii) the petitioner must prove that the first respondent:

•	gave, conferred or procured or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person; and

•	any property or benefit of any kind; and

•	in order to induce any person to endeavour to procure the return of any person (in this case the first respondent) at an election or the vote of any elector at an election.

31.    That description of the elements of s 103(a)(iii) is consistent with analyses of that provision in other cases including Isoaimo v Aihi [2012] 2 PNGLR 337 and Simitab v Isifu (2018) N7076. Giving the words of the provision their plain meaning it will be observed that the person given the property or benefit need not be an elector. Mr Dewe did not provide authority for the proposition that the person given the property must be an elector.

32.     In any event the recipient of the K20.00 cash, Graham Ita, gave evidence that he was an elector and that he was going to vote for another candidate but because of the K20.00 given to him and the words spoken by Dennis Porari to him, he gave his first preference vote to the applicant. His evidence was accepted by the trial judge. 

33.    We are not satisfied that her Honour erred in the manner contended for by the applicant. We dismiss grounds 3, 4 and 5 of the application for review. 

(c)	DECLARING THE ELECTION VOID WITHOUT REGARD TO ALL REQUIREMENTS OF S 215(3) OF THE ORGANIC LAW

34.    The applicant asserts that the trial judge erred in upholding ground 4 of the petition because, though stating that all requirements of s 215(3) of the Organic Law were satisfied, she did not address all the requirements. Section 215 (voiding election for illegal practices) states:

(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.

35.    It is argued that because the trial judge upheld ground 4 (and ground 3) of the petition on the basis that s 215(3) of the Organic Law, there were two requirements that had to be pleaded and proven in addition to bribery being committed by a person other than the candidate with the knowledge and authority of the candidate. These were that:

•	the result of the election was likely to be affected; and

•	it is just that the candidate should be declared not to be duly elected or that the election should be declared void. 

36.     Mr Dewe submitted that the decision of the Supreme Court in Talita v Ipatas [2016] 1 PNGLR 30 supports that interpretation of s 215(3). We do not think that it does, but if it does there is another interpretation, which specifically addressed the argument now put to us, which is to be preferred. The issue arose in Fairweather v Singirok [2013] 2 PNGLR 95 and was addressed in these terms:

If the ground of a petition alleges that an offence of bribery or undue influence was committed by a person other than the candidate with the knowledge or authority of the candidate, is it necessary to plead that:

•	the result of the election was likely to be affected by the illegal practice allegedly committed by the person (other than the candidate); and

•	it is just that the candidate should be declared not to be duly elected or that the election should be declared void?

The answer is no. The argument advanced by Mr Sheppard is not consistent with the wording of s 215(3)(a), which deals with the situation in which it is alleged that an illegal practice, including bribery or undue influence, is committed by a person other than the candidate without the candidate’s knowledge or authority. A proper construction of the whole of Section 215 will result from appreciation of the fact that it is dealing with six scenarios in which there are three variables:

•	the nature of the illegal practice: whether it was actual or attempted bribery or undue influence, which are regarded by the Organic Law as the most serious forms of illegal practice, or some other illegal practice;

•	the person committing the illegal practice: whether it was committed by the successful candidate (regarded as the most serious conduct) or by some other person;

•	in the case of an illegal practice committed by a person other than the candidate: whether it was committed with (the most serious situation) or without (less serious) the candidate’s knowledge or authority.

The six scenarios, in decreasing order of seriousness, are:

A.	bribery or undue influence committed or attempted by a candidate: if he is the successful candidate, s 215(1) applies: his election shall be declared void;

B.	bribery or undue influence committed or attempted by someone other than the candidate with the knowledge or authority of the candidate: his election may be declared void without the necessity of pleading or proving the two matters set out at the end of s 215(3);

C.	bribery or undue influence committed or attempted by someone other than the candidate without the knowledge or authority of the candidate: this is the scenario expressly provided for by s 215(3)(a): his election may be declared void provided that the two matters set out at the end of s 215(3) are pleaded and proven;

D.	illegal practice other than actual or attempted bribery or undue influence committed by a candidate: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;

E.	illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate with the candidate’s knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;

F.	illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate without the candidate’s knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven.

37.     In the present case, scenario B was alleged and proven in grounds 3 and 4 of the petition. It is a scenario that is not expressly included in either ss 215(3)(a) or (b) of the Organic Law. It follows that the two matters set out at the end of s 215(3) do not apply to it. We agree with the Supreme Court (Mogish J, Cannings J, Poole J) in Fairweather v Singirok that interpreting the requirements of scenario B in the above manner is consistent with the scheme of Section 215, which encompasses six separate scenarios and treats as the most serious (scenario A) the actual or attempted commission of an offence of bribery or undue influence by a candidate. The next most serious scenario (B) is where such an offence is actually or attempted to be committed by some other person with the candidate’s knowledge or authority.

38.     The trial judge properly set out the elements of a bribery offence under s 103 of the Criminal Code and made no error of fact or law in being satisfied of the elements of the offence. As the judge found that bribery was committed with the knowledge and authority of the successful candidate, it was not necessary for the court to be satisfied that the result of the election was likely to be affected by the bribery and that it was just that the election be declared void. We dismiss ground 6 of the application for review.

(d)	FAILING TO ADMINISTER JUSTICE IN ACCORDANCE WITH THE RULES OF EVIDENCE AND S 158(2) OF THE CONSTITUTION

39.    Section 158(2) of the Constitution requires that “in interpreting the law the courts shall give paramount consideration to the dispensation of justice”. The applicant argues that the trial judge did not adhere to this constitutional imperative in that:

•	a subjective rather than objective approach was taken to the evidence, due to the judge forming a decisive opinion early in the trial that she was “not impressed” by the applicant’s witnesses;

•	a preconceived and speculative view of the applicant’s witnesses was taken, including that they were unreliable and coached to lie;

•	no proper weight was given to the evidence of the applicant’s witness, Brendy, or the evidence of the first respondent’s witness, John Siri; and

•	irrelevant considerations were taken into account as demonstrated by the following dicta at the end of the judgment under the heading “Conclusion”: 

It can be reasonably inferred that more people were victims of this illegal practice because the petitioner’s witnesses testified that a lot of money was going around in their village at that time. There were people drinking everywhere and calling out “Pangu Save Lot Rot”. Given the fact that the first respondent was a Pangu Party candidate, these witnesses testified that they reasonably believed that the first respondent financially sponsored all the drinking and circulation or “flowing” of money in the village during the campaign period leading up to the polling dates. 

•	the decision of the trial judge was exceptional and contrary to accepted principles of law including s 217 of the Organic Law.

40.     We are of the view that the remarks of the trial judge under the heading “Conclusion” were probably unnecessary. Having said that, we do not think that the remarks were noxious or unjustified in the manner described by the applicant. The remarks are not highly political and are not highly subjective and they do not lack a factual basis and are not irrelevant to the issues in the case. These remarks were made at the end of the judgment after her Honour had addressed and determined grounds 3 and 4 of the petition. They are not determinative of any issue. They demonstrate her Honour’s assessment of the situation pertaining prior to polling based on the whole of the evidence at the trial. The remarks are unobjectionable.

41.     As to the other criticism of the trial judge’s reasoning, it is cast in broad terms and is, given that the arguments underpinning the criticism have been considered in our determination of the previous grounds of review, unjustified. The trial judge addressed the grounds of the petition in a rational, logical and coherent manner and the approach to the evidence was measured and objective, not speculative and subjective. We dismiss ground 7 of the application for review.

CONCLUSION 

42.     We have dismissed all grounds of the application for review and will refuse the application for review. Costs will follow the event. 

ORDER 

1.	The application for review is refused.

2.	The order of the National Court of 24 January 2023 in EP No 38 of 2022 is affirmed.

3.	The order of the Supreme Court of 8 June 2023 staying enforcement of the decision of the National Court of 24 January 2023 in EP No 38 of 2022 and allowing the applicant to resume official duties as member for Sohe Open is dissolved.

4.	The Registrar shall forthwith forward to the Clerk of the Parliament a copy of the judgment and order of the Court.

5.	The applicant shall, subject to any costs orders made during these proceedings, pay the first respondent’s costs of the proceedings, on a party-party basis, which shall, if not agreed, be taxed.
________________________________________________________________
Jema Lawyers:  Lawyers for the Applicant 
Wang Dee Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent