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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCREV (EP) NO 2 OF 2025
AMOS JOSEPH AKEM
Applicant
V
TOMAIT KAPILI
First respondent
ELECTORAL COMMISSION
Second respondent
WAIGANI : SALIKA CJ, CANNINGS J,
MANUHU J, HARTSHORN J, FRANK J
27 FEBRUARY, 26 MARCH 2026
ELECTION PETITIONS – grounds of petition – bribery of electors by person other than successful candidate with knowledge of successful candidate – s 215, Organic Law on National and Local-level Government Elections – whether trial judge erred in upholding bribery grounds – errors or omissions by Electoral Commission that affected result of election – s 218, Organic Law on National and Local-level Government Elections whether trial judge erred by not specifying the number of votes affected by errors or omissions.
The applicant applied to the Supreme Court for review of the decision of the National Court to uphold a petition against his election and declare that the election was void and that he had not been duly elected. The National Court upheld five grounds of bribery of electors by persons committed with the knowledge or authority of the successful candidate (the applicant) based on s 215 of the Organic Law on National and Local-level Government Elections and one ground of errors or omissions by officers of the Electoral Commission regarding the scrutiny of votes based on s 218 of the Organic Law. The applicant, who was supported by the Electoral Commission (second respondent), argued that the trial judge erred in respect of each of the grounds of bribery as there was insufficient evidence to support the findings, and there was in any event no express finding that the persons allegedly bribed were electors or that any bribery committed was with the knowledge and authority of the applicant. As to the errors or omissions ground, the applicant and the second respondent argued that the trial judge erred by applying an incorrect standard of proof and by not specifying the number of votes affected by the alleged errors and omissions and not expressly stating in terms of the applicant’s winning margin, how the number of affected votes compared to the winning margin.
Held:
Per Salika CJ:
(1) Agrees that the review should be dismissed. Endorses the orders proposed by Cannings J.
Per Cannings J:
(2) No errors of fact or law were made by the trial judge in upholding two of the bribery grounds of the petition, each of which provided a sufficient basis for declaring the election void.
(3) As to the ground of the petition alleging errors or omissions of the Electoral Commission, the trial judge adequately stated the particular errors and omissions committed. Given the nature and extent of the errors and omissions and the unsatisfactory circumstances in which scrutiny was conducted, it was not necessary to specify numerically how many votes were affected. The trial judge made no error in upholding this ground of the petition, which also provided a sufficient basis for declaring the election void.
Per Manuhu J:
(4) Section 155(2(b) of the Constitution gives the Supreme Court inherent power to review all judicial acts of the National Court, including election petition decisions. However an applicant for review must show (agreeing with Hartshorn J) that there exist extraordinary circumstances and that it is in the interests of justice that a review be undertaken. Neither requirement has been satisfied in this case, therefore the review should be dismissed.
Per Hartshorn J:
(5) The general power of the Supreme Court under s 155(2)(b) of the Constitution to review judicial acts of the National Court is subject to the specific prohibition provided by s 220 of the Organic Law on National and Local-level Government Elections that in an election petition “a decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way”.
(6) To the extent that the Supreme Court may be able to review a decision of the National Court in an election petition, it has not been shown in this instance that there exist extraordinary circumstances and that it is in the interests of justice that a review be undertaken. Consequently, this review should be dismissed.
Per Frank J:
(7) To establish that bribery or another offence has been committed, in the context of s 215 of the Organic Law, the relevant standard of proof is “to the entire satisfaction of the Court”, which was properly applied by the National Court in this case. The review should be dismissed, for the reasons provided by Cannings J.
By the Court:
(8) The application for review is dismissed and the decision of the National Court is affirmed.
Cases cited
Alphonse Kopi v The State [1994] PNGLR 475
Benny Diau v Mathew Gubag (2004) SC775
Fairweather v Singirok (2013) SC1293
Ganasi v Subam & Electoral Commission (2013) SC1277
Ganzik v Iguan (2024) SC2668
Helen Jimmy v Paul Rookes (2012) N4705
Isoaimo v Aihi (2024) SC2562
Kandiu v Parkop (2015) SC1437
Neville Bourne v Manasseh Voeto [1977] PNGLR 298
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Re Fisherman’s Island [1979] PNGLR 202
Regina v Holland [1974] PNGLR 7
Robert Kopaol v Philemon Embel (2003) SC727
Sir Arnold Amet v Peter Charles Yama [2010] 2 PNGLR 87
Warisan v Arore (2015) SC1418
Counsel
B S Lai & R J Lains for the applicant
S Ju for the first respondent
R William for the second respondent
1. SALIKA CJ: I have considered the draft judgments of my learned colleagues and agree that the review should be dismissed. I endorse the orders proposed by Justice Cannings.
2. CANNINGS J: Amos Joseph Akem, the applicant, applies to the Supreme Court for review of the decision of the National Court of 30 April 2025 to uphold a petition, EP 1 of 2024, brought by Tomait Kapili, the first respondent, against his election as member for Lagaip Open in a supplementary election conducted in 2023.
3. The application is made under s 155(2)(b) of the Constitution, which confers inherent power on the Supreme Court to review all judicial acts of the National Court, pursuant to the granting of leave by a single Judge of the Supreme Court.
4. The Electoral Commission, the second respondent, supports the application for review.
5. The National Court constituted by Justice Yagi conducted the trial of the petition at Waigani. The petition contained 14 grounds. Seven were dismissed upon determination of a no case submission. The other seven proceeded by allowing the parties to complete the evidence and make submissions. They were:
Allegation 1 – bribery of elector Samson Sii at Laiagam station on 25 September 2023;
Allegation 2 – bribery of elector Ray Puli at Laiagam station on 25 September 2023;
Allegation 3 – bribery of elector Lipula Sakas Eno at Laiagam station on 25 September 2023;
Allegation 4 – bribery of elector Peter (Tupas) Leo at Laiagam station on 25 September 2023;
Allegation 6 – bribery of elector Ray Puli at Goroka in or about the third week of October 2023;
Allegation 8 – bribery of elector Iki Alep at polling station, Wanepos ward 5, Lagaip LLG on 28 November 2023;
Allegation 14 – errors and omissions during counting and scrutiny, 19 – 28 November 2023.
6. Allegations 1, 2, 3, 4, 6 and 8 were allegations of bribery of electors committed by persons other than the applicant, with the knowledge or authority of the applicant. These allegations were argued as grounds for voiding the election under s 215 (voiding election for illegal practices) of the Organic Law on National and Local-level Government Elections.
7. Section 215 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.
8. Allegation 14 alleged errors and omissions by officers of the Electoral Commission that affected the result of the election and was argued as a ground for voiding the election under s 218 (immaterial errors not to vitiate the election) of the Organic Law.
9. Section 218 states:
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.
10. The trial judge dismissed allegation 8 but upheld the other six triable allegations. His Honour declared that the election was void and that the applicant was not duly elected and ordered that a by-election be conducted.
GROUNDS OF REVIEW
11. The application for review is based on seven grounds. It is argued that the trial judge committed errors of law and fact in the following respects:
A – upholding allegation 1 re bribery of elector Samson Sii;
B – upholding allegation 2 re bribery of elector Ray Puli;
C – upholding allegations 3, 4 and 6 re bribery of electors Lipula Sakas Eno, Peter (Tupas) Leo and Ray Puli;
D – failing to read s 215 of the Organic Law together with s 103 (bribery) of the Criminal Code in determination of allegations 1, 2, 3 4 and 6;
E – finding incorrectly that the applicant’s date of nomination for the election was 25 September 2023;
F – finding in the absence of proper evidence that the petitioner’s witnesses were electors;
G – finding without adequate evidence or explanation that errors or omissions of the Electoral Commission affected the result of the election.
12. I will now determine each of the grounds in turn.
A – UPHOLDING ALLEGATION 1 RE BRIBERY OF ELECTOR SAMSON SII
13. The applicant argues that the trial judge erred in upholding allegation 1 of the petition, that Simon Sii was an elector who was bribed by a supporter and associate of the applicant, Hon Renbo Paita MP, by being given a motor vehicle for his private use on the day of the applicant’s nomination as a candidate in a public ceremony in the presence of the applicant, in that:
(a) his Honour did not make a finding of fact that the bribery was committed with the knowledge and authority of the applicant;
(b) the evidence was insufficient to support a finding that the applicant knew of and authorised Hon Renbo Paita to hand over the vehicle to Samson Sii with the intention of inducing him to vote for the applicant, and such a finding was “manifestly erroneous and absurd”;
(c) the finding that the applicant was present and in close proximity to Hon Renbo and observed what he did and that there was no evidence that the applicant disapproved of what was said or done by Hon Renbo Paita was insufficient to conclude that any bribery by Hon Renbo Paita was committed with the knowledge and authority of the applicant.
14. As to (a), the trial judge noted the evidence of Samson Sii and other witnesses for the petitioner who were present at the ceremony at which Hon Renbo Paita handed over keys to a motor vehicle for Samson Sii and made statements in support of the applicant in the presence of the applicant and other leaders. There was evidence that the applicant accompanied Hon Renbo Paita in a motor vehicle in the short distance from the nomination centre to a grandstand at the Niug SDA Church ground and was present at the campaign event. Hon Renbo Paita announced that the applicant was Pangu Pati’s candidate and encouraged the large crowd to vote for him. His Honour noted that the applicant was the only witness for himself and did not directly deny what Hon Renbo Paita did in handing the keys to the motor vehicle to Samson Sii, though his evidence appeared to suggest that he was not present and did not know of or authorise any bribery committed by Hon Renbo Paita.
15. His Honour considered that the bribery allegation at the centre of allegation 1 of the petition fell into scenario B of the six scenarios outlined by the Supreme Court in Fairweather v Singirok (2013) SC1293 as being the sort of allegations that can arise under s 215 of the Organic Law.
16. In Fairweather v Singirok the Supreme Court held:
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 six scenarios, in decreasing order of seriousness, are:
17. It is settled law that “bribery” in s 215 means one of the offences of bribery created by s 103 (bribery) of the Criminal Code. The petitioner has the burden of proving according to the criminal standard of proof of beyond reasonable doubt that one of those offences was committed by the successful candidate (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, Sir Arnold Amet v Peter Charles Yama [2010] 2 PNGLR 87).
18. His Honour found that the evidence adduced by the petitioner was credible and reliable and that his witnesses had not been discredited to a point where their evidence could not be relied upon by the Court. His Honour concluded that “the petitioner has proven to the entire satisfaction of the Court based on the evidence available that bribery under s 103(a)(i) of the Criminal Code was committed within the meaning of s 215(1) of the Organic Law”.
19. Section 103(a)(i) of the Criminal Code states:
A person who ... 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 ... 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 ... is guilty of a misdemeanour.
20. The only way to read his Honour’s determination of allegation 1 of the petition is that bribery of elector Samson Sii was committed by Hon Renbo Paita for the purposes of s 103(a)(i) of the Criminal Code with the knowledge or authority of the applicant. It is true, as asserted by the applicant, that his Honour did not expressly make a finding of fact that bribery was committed with the knowledge and authority of the applicant. However, this is inconsequential, as it is clearly apparent that that is indeed, in fact and law, what his Honour found.
21. I reject the argument that his Honour erred by failing to make an express finding of fact that bribery was committed with the knowledge and authority of the applicant.
22. As to (b), the trial judge was in the best position to assess the quality of evidence presented by the parties. His Honour regarded the petitioner’s witnesses’ evidence as credible and reliable, and took a dim view of the evidence of the applicant. The evidence was clearly sufficient to support a finding that the applicant knew of and authorised Hon Renbo Paita to hand over the vehicle to Samson Sii with the intention of inducing him to vote for the applicant. Such a finding was neither erroneous nor absurd, let along manifestly so, as contended for by the applicant.
23. As to (c), I am not persuaded that there was insufficient evidence before the National Court on which to base the finding in allegation 1 of the petition that the applicant was present and in close proximity to Hon Renbo Paita and observed what he did and that bribery by Hon Renbo Paita was committed with the knowledge or authority of the applicant. That finding was clearly available to the National Court. The trial judge made no error of fact or law in making it.
24. I dismiss ground A of the application for review.
B – UPHOLDING ALLEGATION 2 RE BRIBERY OF ELECTOR RAY PULI
25. The applicant argues that the trial judge erred in upholding allegation 2 of the petition, that Ray Puli was an elector who was bribed by a supporter and associate of the applicant, Hon Renbo Paita MP, by being given a motor vehicle for his private use on the day of the applicant’s nomination as a candidate in a public ceremony in the presence of the applicant, in that:
(a) there was no evidence of any bribery being committed with the knowledge and authority of the applicant;
(b) the trial judge did not make a finding of fact that bribery was committed with the knowledge and authority of the applicant.
26. As to (a), the same argument as to insufficiency of evidence was made by the applicant regarding allegation 1. I rejected it, and I also reject it regarding allegation 2. The person found to have been bribed in allegation 2, Ray Puli, was bribed in the same manner (handing him the keys to a motor vehicle and encouraged to vote for the applicant and to persuade others to vote for the applicant), by the same person, Hon Renbo Paita, at the same place (campaign event at SDA Church ground), and on the same day (25 September 2023) as Samson Sii was found to have been bribed in allegation 1.
27. Just as I determined in relation to allegation 1 of the petition that there was sufficient evidence on which to base a finding that bribery of an elector, Samson Sii, had been committed with the knowledge or authority of the applicant, I consider that in relation to allegation 2 of the petition, there was sufficient evidence on which to base the finding that bribery of the elector, Ray Puli, was committed with the knowledge or authority of the applicant. I reject the applicant’s argument as to insufficiency of evidence to support allegation 2 of the petition.
28. As to (b), it is significant that in his summary of evidence pertaining to allegation 2 of the petition, the trial judge observed that the person alleged to have been bribed, Ray Puli, gave evidence that he saw the applicant and Hon Renbo Paita holding hands and walking together to the district office where the applicant formalised his nomination and Hon Renbo Paita then drove in a motor vehicle accompanied by the applicant to the SDA Church ground where Hon Renbo Paita presented him with the key to a motor vehicle and told him and other councillors present to campaign for the applicant and get votes and support from the electors within their wards.
29. The trial judge concluded his determination of allegation 2 of the petition as follows:
60 Similar to what I have observed in allegation 1 ..., the first respondent’s evidence on allegation 2 is also quite general and vague to say the least.
61 In applying the law to the facts, I am unable to reach a contrary conclusion. Again, I find the submission by the respondents lacked merit. I am satisfied, and I do so find, in respect to this allegation that there is evidence of Minister Paita (a person) giving to Mr Puli (another person) the key and a motor vehicle (a property) to campaign for and cast his vote for the first respondent (on account of campaigning and voting for the first respondent) by Mr Puli who is an elector (an elector in the supplementary election for the Lagaip Open electorate).
62 I am therefore satisfied the petitioner has proven to the entire satisfaction of the Court based on the evidence available that bribery under s 103(a)(i) of the Criminal Code was committed within the meaning of 215(1) of the Organic Law. This Court finds that allegation 2 has been proven.
30. Implicit in the trial judge’s assessment and determination of allegation 2 was the finding that bribery of Ray Puli was committed by Hon Renbo Paita, which was an offence under s 103(a)(i) of the Criminal Code, and that the offence was committed in the presence of and with the knowledge or authority of the applicant. Though his Honour did not expressly state that bribery was committed with the knowledge or authority of the applicant, there is no way to read his Honour’s reasons for judgment other than that is indeed the force and effect of his findings. No error of fact or law was made by his Honour in his conclusion as to allegation 2 of the petition.
31. I dismiss ground B of the application for review.
C – UPHOLDING ALLEGATIONS 3, 4 AND 6 RE BRIBERY OF ELECTORS LIPULA ENO, PETER (TUPAS) LEO AND RAY PULI
32. The applicant argues that the trial judge erred in upholding allegations 3, 4 and 6 of the petition, in that:
(a) there was no evidence of any bribery being committed with the knowledge and authority of the applicant;
(b) the trial judge did not make a finding of fact that bribery was committed with the knowledge and authority of the applicant.
33. I uphold these arguments as his Honour, with respect, glossed over allegations 3, 4 and 6 by remarking that the evidence in support of them was very similar, if not identical, to allegations 1 and 2, and therefore his conclusion would be the same. I do not think, with respect, that that was a correct approach, given that allegation 6 was in relation to bribery allegedly committed at a different place, Goroka, at a different time (third week of October 2023).
34. I uphold ground C of the application for review.
D – FAILING TO READ S 215 OF THE ORGANIC LAW TOGETHER WITH S 103 OF THE CRIMINAL CODE IN DETERMINATION OF ALLEGATIONS 1, 2, 3, 4 AND 6
35. The applicant argues that the trial judge erred by not reading s 215 of the Organic Law together with s 103 of the Criminal Code, in upholding allegations 1, 2, 3, 4 and 6 of the petition.
36. This is a frivolous argument. His Honour’s assessment of allegation 1 of the petition, which formed the basis of the determination of the other bribery grounds (allegations 2, 3, 4 and 6) included quoting the relevant parts of s 215 of the Organic Law together with s 103 of the Criminal Code and demonstrated an acute appreciation of the proper interpretation of “bribery” in s 215 of the Organic Law, which is, as confirmed by the Supreme Court in Isoaimo v Aihi (2024) SC2562, that proof of the offence of bribery in s 103 of the Criminal Code is essential to upholding an allegation of bribery in s 215 of the Organic Law.
37. I dismiss ground D of the application for review.
E – FINDING INCORRECTLY THAT THE APPLICANT’S DATE OF NOMINATION FOR THE ELECTION WAS 25 SEPTEMBER 2023
38. The applicant argues that the trial judge erred in making the finding of fact that his date of nomination was 25 September 2023. He argues that his Honour unreasonably refused to admit into evidence the applicant’s nomination form, which clearly showed that he nominated on 26 September 2023, and instead based his finding on the evidence of the petitioner’s witnesses (that the nomination date was 25 September 2023), which evidence was uncorroborated by any official record and unreliable.
39. The applicant argues that it was a significant error of fact and law, as if his Honour had not erred, and found that the date of nomination was in fact 26 September 2023, four of the bribery allegations in the petition (Nos 1, 2, 3 and 4) would have had to be dismissed as each was based on an allegation that bribery was committed on 25 September 2023.
40. I reject these arguments. I consider that the trial judge’s decision to refuse the admission of the applicant’s nomination form was entirely reasonable given that directions had been given long before commencement of the trial for tendering of evidence. The nomination form that the applicant attempted to rely on had not formed part of the evidence that he had given notice of relying on. Further, in the statement of agreed facts and issues filed before trial, the date of nomination was stated as 25 September 2023.
41. The petitioner’s witnesses gave evidence that the date of nomination was 25 September 2023 and apart from the applicant’s unsupported assertion that it was 26 September 2023 there was no contrary evidence.
42. I find no error in the trial judge’s finding that the date of nomination was 25 September 2023. If I were wrong on that point, and it were a fact that the date of nomination was actually 26 September 2023, I do not think it would make any difference to the findings of the National Court regarding the essence of the bribery allegations in allegations 1 and 2 of the petition.
43. The trial judge correctly found that bribery was committed on the day of nomination with the knowledge or authority of the applicant. Whether it was on 25 or 26 September 2023 is immaterial.
44. I dismiss ground E of the application for review.
F – FINDING IN THE ABSENCE OF PROPER EVIDENCE THAT THE PETITIONER’S WITNESSES WERE ELECTORS
45. The applicant argues that the trial judge erred in accepting the evidence of the petitioner’s witnesses (Samson Sii, Ray Puli and others) that they were each electors. It is argued that the only way the Court could properly find that they were electors was by verifying from the electoral roll (the common roll) that their names were on the roll. However, the electoral roll was not in evidence. Without verification that the persons allegedly bribed were electors, the National Court could not be satisfied that bribery of an elector had occurred for purposes of s 215 of the Organic Law. It is argued that each of the grounds of the petition based on bribery should therefore have been dismissed.
46. The applicant argues that the trial judge should have applied the principles emerging from the Supreme Court decision in Ganasi v Subam & Electoral Commission (2013) SC1277. Instead, his Honour ignored that case and relied on the Supreme Court decision in Warisan v Arore (2015) SC1418, which arguably allows petitioners to shift the onus of proving that a person bribed is an elector to the Electoral Commission.
47. The applicant argues that Ganasi was correctly decided; and to the extent that Warisan stands for the proposition that it is possible to prove that a person bribed was an elector without verification from the electoral roll, it was incorrectly decided, and the trial judge erred in following it.
48. In my view the trial judge did not err by following Warisan. The decision in Ganasi was apparently brought to his Honour’s attention in submissions, but his Honour did not mention it in his judgment. Perhaps his Honour should have referred to it, but the fact that he did not is inconsequential.
49. Ganasi was a unanimous decision of three Judges ( Davani J, David J and Kassman J). Warisan was also a unanimous decision of three Judges (Gavara-Nanu J, Yagi J and Poole J). The decisions are of equal weight in terms of the doctrine of precedent under schedule 2.9(1) of the Constitution. The trial judge could adopt the reasoning in either Ganasi or Warisan and not go wrong. His Honour chose Warisan and did not err by doing so.
50. The more important question that arises, now that this issue has been raised before the Court consisting of five Judges, is: which of Ganasi or Warisan is correct?
51. If the question of fact arises whether a person allegedly bribed is an elector, is it necessary for the petitioner to prove that that person is an elector by proving that they are named as an elector on the electoral roll (the Ganasi approach)?
Or is it sufficient proof that the person allegedly bribed is an elector by them giving sworn evidence that they are an elector, without verification from the electoral roll (the Warisan approach)?
52. I favour the Warisan approach for the following reasons.
53. First, the word “elector” does not appear in s 215 of the Organic Law. It is not necessary therefore (as claimed by Mr William, counsel for the Electoral Commission) to refer to and be confined by the definition of “elector” in s 3(1) of the Organic Law, which is that “elector” means “a person whose name appears on a Roll as an elector”.
54. Secondly, the trigger to operation of s 215 in a case where a petitioner argues that a candidate or another person with the knowledge or authority of the candidate has committed bribery is whether an offence of bribery under s 103 of the Criminal Code has been committed. Section 103 is an extremely complex provision, which actually creates a multitude of separate offences, some of which include as a necessary element that the person allegedly bribed is an “elector”. There is a definition of “elector” in s 98 of the Code:
“elector” includes any person entitled to vote at an election.
55. Significantly, it is an inclusive definition. A petitioner can prove that a person is entitled to vote by proving that their name is on the electoral roll. But that is not the only way that they can prove their entitlement. The petitioner can prove entitlement to vote of a person allegedly bribed by that person giving sworn evidence that they are entitled to vote and that their name is on the electoral roll. Then the Court can consider contrary evidence, if any, and weigh any competing evidence and make a finding of fact.
56. Thirdly, the Court might properly invoke the fact-finding principle articulated by the National Court (per Wilson J) in Re Fisherman’s Island [1979] PNGLR 202:
Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness before the court or judicial tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it.
57. The same principle was outlined by the Full Court of the pre-Independence Supreme Court (Frost ACJ, Clarkson J, O'Loghlen AJ) in Regina v Holland [1974] PNGLR 7 and subsequently in the National Court decisions of Woods J in Alphonse Kopi v The State [1994] PNGLR 475, Lay J in Rabaul Shipping Limited v Peter Aisi (2006) N3173 and Cannings J in Helen Jimmy v Paul Rookes (2012) N4705.
58. To sum up, my view is that if it is necessary to prove as an element of an offence under s 103 of the Criminal Code that a person is an elector, it is not necessary for any evidence that they are an elector be verified by the electoral roll. Obviously, if the electoral roll is in evidence and the person’s name is on the roll, that should settle the issue. It is desirable to have the roll in evidence. But it is not necessary.
59. In the present case, the roll was not in evidence. Each of the persons allegedly bribed gave sworn evidence that he was an elector. The trial judge assessed them as credible witnesses. There was no contrary evidence. His Honour accepted their evidence, as he was entitled, and almost bound (according to Fisherman’s Island) to do. His Honour made no error of fact or law in accepting their evidence, without insisting on verification of their evidence by the electoral roll.
60. I dismiss ground F of the application for review.
G – FINDING WITHOUT ADEQUATE EVIDENCE OR EXPLANATION THAT ERRORS OR OMISSIONS OF THE ELECTORAL COMMISSION AFFECTED THE RESULT OF THE ELECTION
61. The applicant argues that the trial judge erred by upholding ground 14 of the petition, which was based on s 218 of the Organic Law and alleged that errors or omissions of officers of the Electoral Commission had materially affected the result of the election.
62. His Honour heard evidence from three witnesses for the petitioner, and regarded their evidence as credible and reliable. Neither the applicant nor the Electoral Commission provided any evidence to counter the evidence presented by the petitioner.
63. His Honour found that after counting commenced at the counting centre at Wabag primary school on 15 November 2023 and proceeded smoothly for several days, the primary vote of the 88,405 ballot papers showed that the petitioner (the first respondent in the present review) led with 27,356 voters, followed by the applicant in second place on 17,853 votes.
64. A quality check commenced on 20 November 2023 but in the afternoon of that day there was a fight amongst scrutineers in the counting centre. It was a big commotion. Tables were upturned, ballot papers were strewn across the floor. Security forces arrived. There was an hour of gunfire outside the counting centre. Two men were shot dead and six others were injured. Counting was suspended. The counting officials who had been ushered into an empty classroom were evacuated after two hours to Wabag police station. In the meantime several unidentified persons and members of the security forces entered the counting centre and after a few minutes emerged with ballot boxes, which were loaded on to a truck and taken to Wabag police station. No counting or electoral officials supervised that operation. No steps were taken to preserve the safety, security, or integrity of the ballot boxes, which were kept in an unlocked shipping container for two days before it was welded shut.
65. Counting resumed on 27 November 2023. There were a number of damaged live ballot papers that were disposed of as rubbish. The returning officer directed that counting would proceed to the elimination stage of the scrutiny, and overruled objections by scrutineers for the petitioner and other candidates who maintained that the quality check process should be completed. There was consequently no quality check of the primary votes. There was no reconciliation of the number of votes being counted at the elimination stage with the number of votes counted after the primary vote.
66. The returning officer circumvented the prescribed exclusion process by excluding 13 candidates simultaneously at the first elimination. The exclusion of successive candidates was riddled with gross discrepancies.
67. In summary, his Honour upheld allegation 14 of the petition that a number of errors or omissions were committed by officers of the Electoral Commission during the counting and scrutiny process. These included:
68. His Honour concluded:
Given the state of the evidence the Court is satisfied the petitioner has proven to the entire satisfaction of the Court based on the evidence available that the errors and omissions as alleged have been proven to the entire satisfaction of the Court. The Court is also satisfied that these errors and omissions have ultimately affected the result of the election.
69. The applicant and the Electoral Commission argued that his Honour erred in drawing that conclusion. It was one thing to identify the commission of errors and omissions; it was quite another to find that the errors and omissions affected the result of the election. His Honour was obliged to specify the number of votes affected by the errors and omissions and compare that number with the winning margin of the successful candidate. The Supreme Court case of Kandiu v Parkop (2015) SC1437 was cited in support of that proposition.
70. I consider that the facts in Kandiu v Parkop, where it was practical to identify the number of votes affected by the errors and omissions and compare that number with the winning margin, are to be distinguished from the facts in the present case, where it was not practical to pinpoint the number of affected votes and impossible to make any comparison of that elusive number and the winning margin.
71. The Court in Kandiu v Parkop did not attempt to lay down any principle of law that in the application of s 218(1) of the Organic Law it is in all cases necessary for a petitioner to identify the number of votes affected by errors or omissions.
72. I consider that the learned trial judge did not err by failing to specify the number of votes affected by the litany of errors and omissions that occurred in the counting process. Given the nature and extent of the errors and omissions and the unsatisfactory circumstances in which scrutiny was conducted, it was not necessary for the trial judge to specify numerically how many votes were affected by the errors or omissions and compare that with the applicant’s winning margin.
73. His Honour in my view properly found that the errors and omission affected the result of the election.
74. I dismiss ground G of the application for review.
CONCLUSION
75. I dismiss grounds A, B, D, E, F and G of the application for review. I uphold only ground C. The effect of this is that the decision of the National Court to uphold three grounds of the petition remains intact:
76. Upholding each of those allegations is sufficient to uphold the petition and sustain the order of the National Court to declare that the election was absolutely void and that the applicant was not duly elected and to order that a by-election be conducted forthwith.
77. I would dismiss the application for review and affirm the orders of the National Court, and costs would follow the event.
78. Counsel for the first respondent suggested in closing submissions that if the Court were to dismiss the review, it should consider making a declaration that the first respondent be regarded as the elected member. I see no merit in this suggestion.
79. I would order:
80. MANUHU J: I have had the benefit of reading the draft judgments of my brothers Cannings and Hartshorn JJ. I wish to add a few remarks.
It is concerning that this election dispute is still unresolved when the next election is 14 months away. A Member of Parliament is
elected to serve for only five years. While a losing candidate is given the right to dispute an election result, it is in the public
interest that an election petition be heard and finalized without delay.
81. The desire for quick resolution of election disputes is apparent in sections 217 and 220 of the Organic Law. Section 217 states:
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.
82. Section 220 reads:
A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.
83. There has never been an appeal against a decision of the National Court. However, s 155(2)(b) of the Constitution gives the Supreme Court inherent powers to review National Court decisions notwithstanding s 220. The Constitution is supreme over the Organic Law. In my view, therefore, a losing party may invoke, as of right, the inherent powers of the Supreme
Court to review a decision of the National Court.
84. However, a review of a decision at any stage of the proceeding ought to be guided by proper considerations and principles.
To this end, I concur with Hartshorn J that a party who seeks to invoke s 155(2)(b) has to show that “there exist extraordinary
circumstances and that it is in the interests of justice that a review be undertaken.” This is a narrow passage to avoid, among
others, reviews that substantially are appeals.
85. There are lessons to learn from this case. Firstly, the first respondent’s counsel has understandably expressed concerns that as the next general election is around the corner, a by-election, if one is to be held, may not by viable. I am equally concerned. Every effort must be made to avoid this scenario. Secondly, the review grounds relate to the evidence and the trial judge’s findings of fact. These grounds overlook s 217. It equips a judge with a lot of flexibility on how he considers the evidence. Unless the trial judge misapplied s 217, any review of a decision on the evidence would be nearly impossible. With due respect, if it wasn’t for this review, a by-election would have been held.
In the end, I concur with Cannings J that all the review grounds are without merit.
86. I would however dismiss the review on the basis that it has not been shown that extraordinary circumstances exist and that it is in the interest of justice to review the decision of the National Court.
87. HARTSHORN J: I have read the draft judgment of Justice Cannings and agree with his Honour that this review should be dismissed.
88. This judgment sets out my own reasoning. I gratefully rely upon the background to the matter as detailed by Justice Cannings.
89. At the hearing I raised with counsel for the applicant whether s 220 of the Organic Law on National and Local-level Government Elections (Organic Law) was relevant to this proceeding. Counsel replied to the effect that s 220 Organic Law is relevant, but that s 155(2)(b) Constitution has priority. It was submitted that s 220 Organic Law should only be invoked when the decision sought to be reviewed was plainly unjust.
90. The parties did not object to the issue of the relevancy of s 220 Organic Law being raised by the Court. The parties did not seek an adjournment of the hearing to be better prepared to argue the issue.
91. Section 220 Organic Law is as follows:
A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.
92. The fair and liberal meaning of s 220 is clear. A decision of the National Court in an election petition is final and conclusive and without appeal and shall not be questioned in any way. Section 220 is in the part of the Organic Law which is concerned specifically with election petitions. It is not a general provision and is expressed in mandatory terms: Sir John Pundari v Peter Yakos (2023) SC2345.
93. That leave to review has been granted, does not detract from the relevance and operation of s 220. A decision of a single Supreme Court judge does not have the effect of negating or setting aside a statutory provision or a section of an Organic Law. Order 5 rule 17 Supreme Court Rules in providing that a decision to grant or a refusal to grant leave is final and not subject to further review, does not and is unable to prevent the operation of s 220 Organic Law.
94. As this review is brought pursuant to s 155(2)(b) Constitution, a consideration of the interpretation of s 155(2)(b) Constitution and s 220 Organic Law is necessary. I refer to my consideration on this issue in Ganzik v Iguan (2024) SC2668. In Ganzik (supra) I stated as follows:
In Sir Peter Ipatas v Laken Lepatu Aigilo (2023) SC2447, I considered the interpretation of these two provisions and at [13] and [14] stated:
Section 155(2)(b) Constitution does not give a right to review. It provides generally, that the Supreme Court has an inherent power to review all judicial acts of the National Court. The Constitution is silent as to when the Supreme Court may exercise that inherent power to review and as to who has the right to request the Supreme Court to exercise that inherent power and when. Given this, the Supreme Court, beginning with Avia Aihi v The State [1981] PNGLR 81 and Avia Aihi v The State (No 2) [1982] PNGLR 44, developed factors to be considered before the Court will exercise its inherent power under s 155(2)(b) Constitution. Under s 220 Organic Law, a decision of the National Court is final and conclusive and without appeal and shall not be appealed or questioned in any way. As a review of a decision is a questioning of a decision in some way, s 220 Organic Law may be interpreted to mean that there is no right to request the Supreme Court to exercise its inherent power of review of an election petition under s 155(2)(b) or if there is such a right to request, however that right may have arisen, that right cannot be exercised in respect of a National Court decision covered by s 220 Organic Law. If it were otherwise and an election petition could be questioned, this is contrary to s 220 Organic Law and renders the wording of s 220 Organic Law otiose. The factors that have been developed in judgments by the Supreme Court to be considered before the Court will exercise its inherent power under s 155(2)(b) do not have the effect of overriding the provisions of a statute, an Organic Law.
The Organic Law is subject to the Constitution. When the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law.
As pursuant to s 220 Organic Law there is no right to request a review or a right to review a decision of a National Court in an election petition pursuant to s 155(2)(b) Constitution, this review should be dismissed.
95. If to any extent this Court pursuant to s 155(2)(b) Constitution, may be able to review a decision of the National Court in an election petition, it has not been shown in this instance that there exist extraordinary circumstances and that it is in the interests of justice that a review be undertaken. Consequently, this review should be dismissed.
96. I agree with the orders proposed by Justice Cannings.
97. FRANK J: I have considered the draft judgments of Justice Cannings, Justice Manuhu and Justice Hartshorn.
98. I only wish to make the observation as regards the standard of proof beyond reasonable doubt of a criminal offence such as bribery in the context of an election petition referenced in the reasons of Cannings J in addressing allegation 1, and it is this. His Honour, the trial judge’s expression of it as being “... to the entire satisfaction of the Court” is supported by authority, for instance, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980 and the earlier case of Neville Bourne v Manasseh Voeto [1977] PNGLR 298 cited in para 14 of Waranaka.
99. Otherwise, I agree with the reasons and the orders proposed by Justice Cannings.
ORDER
100. The Court orders that:
_____________________________________________________________
Lawyers for the applicant: Hardy & Stocks Lawyers
Lawyers for the first respondent : Wang Dee Lawyers
Lawyers for the second respondent: Niugini Legal Practice
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