Kemben v Amaiu and Electoral Commissioner [1988] PGNC 11; N721 (14 December 1988)

Unreported National Court Decisions

N721

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(M.P. 99 OF 1987)
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS.
AND:
NEAPUKALI KEMBEN
PETITIONER
AND:
THOMAS AMAIU
FIRST RESPONDENT
AND:
ELECTORAL COMMISSIONER
SECOND RESPONDENT

Wabag & Waigani

Hinchliffe J
20-22 September 1988
28 September 1988
5 December 1988
12 December 1988
14 December 1988

NATIONAL ELECTION PETITION - Onus of proof - Illegal voting - Section 215 of the Organic Law on National Elections - Reporting of illegal practices to the Speaker of the Parliament and the Electoral Commission.

Cases Cited:

Neville Bourne v. Manesseh Voeto 1977 PNGLR 298.

Petition:

This was an election petition from the 1987 National Election. The petitioner claimed that the first respondent and his supporters arranged for unqualified voters to vote.

Counsel:

H. Waninara, for the petitioner.

L. Sasu, for the first respondent.

P. Ame, for the second respondent.

Cur. adv. vult.

14 December 1988

HINCHLIFFE J: This is an Ele Petition reon regarding the 1987 National Election. Of the original number of grounds, the following remain:

“1. & The fire first respondent and his supporacted improperly and illegallegally in

(a) &##160; arrangiranging to buing liqualified voters from outside thctora votehe electorate when they were aware they were were inel ineligibligible to vote.

2. &#M60; vony s ferm deothctothctorate who were were ineliineligible to vote in the electorate voted at Laikam, Aepanda and Wakumale polling stations.”

The short facts are that the petitioner claims that Paul Amaiu, the brother of Tom Amaiu brought a number of people, in his motor vehicle, to vote illegally at Laikam and Wakumale. It was also alleged that another motor vehicle also carried a number of illegal voters to the two said polling places. The allegations were denied by the first respondent.

There is no argument that Mr. Amaiu won the election by 74 votes and I would have to be satisfied, to allow this petition, that the illegal voting was such that it effected the outcome of the poll. That is of course, if in fact there was any illegal voting.

The onus of proof is on the petitioner and in NEVILLE BOURNE v. MANESSEH VOETO 1977 PNGLR 298 at p. 302 Frost C.J. said:

“Mr. Gregory submitted that the degree of proof falls short of proof beyond reasonable doubt. However, in this case, before I uphold the petition, I am of the opinion that the ground of it must be proved to my entire satisfaction, and that as Willes J. said, if I am not to be very sure I must at least be sure that the ground has been made out. I may fall therefore just short of the criminal standard, although in application I consider there would be no real practical difference.”

I agree with His Honour regarding the onus of proof and it is therefore clear that a high standard of proof is required if the petitioner is to be successful.

Sanga Teina gave evidence that he was at Laikam and Wakumale on the relevant polling days and that he saw Paul Amaiu bring people to vote who were not eligible to do so. This witness went so far as naming the various people. He named ten at Laikam and seven at Wakumale. Mr. Waninara, who appeared for Mr. Kemben, asked me to assume that there were many more voting and that the said seventeen people were only the people that Mr. Teina could name. I cannot accept that submission. Mr. Teina was quite specific and at one stage he said: “I know the outsiders by person and by name therefore I argued that they were not supposed to vote.” Later he said: “Those people who were bought to Laikam, I know them personally and by name.” I was very impressed with the witness and I found him to be sincere and honest and he gave his evidence as best as he could remember.

The next witness Yatu Kumane, who was a scrutineer for the petitioner, said that at Laikam there were about 100 sectional voters. I cannot accept that figure because it is way beyond all the other figures presented in evidence and quite frankly I am convinced that the witness is mistaken in his estimation. He seemed to rely on a lot that he was told and did not have that first hand knowledge like Senga Teina. In fact Mr. Kumane in cross-examination was asked: “The next witness said ten outsiders were brought in by Paul Amaiu to Laikam, but you say one hundred. Who is telling the truth.” He replied: “I presume it was about one hundred.”

Although parts of his evidence were quite sound I feel that he was “having a stab in the dark” regarding numbers.

Beru Lamao gave evidence for the petitioner and he said that he was collected by Paul Amaiu to vote illegally at Wakumale. The witness was also one of the people seen by Senga Teina voting illegally at Wakumale. This witness said that six voted illegally and he named people who were also named by Senga Teina. Although this witness said that six people were on Paul Amaiu’s motor vehicle and Senga Teina said there were seven, I am of the view that the difference is not significant.

Jim Saka gave evidence for the petitioner and he was a scrutineer at Laikam for the candidate Joseph Teuken. He saw two motor vehicles transporting people to Laikam and he stated that he knew that they (the people) were not eligible to vote. He swore that Paul Amaiu drove one of the motor vehicles with 25 to 28 people on board and that the other carried about 15. He gave evidence of his knowledge of the people and the area and I was also impressed with this witness.

But when one looks at the petitioners evidence in relation to numbers it does not come anywhere near the 74 or indeed the 75 mark. At its highest, which is doubtful, the evidence is that 43 voted illegally at Laikam and 7 voted illegally at Wakumale. To find that more than that voted illegally would be only quessing and of course to guess and then arrive at a figure would be quite improper. Even though I suspect that there were some unavailable witnesses who may have given evidence to add to the said 50 it is clearly up to the petitioner to prove his case.

That in effect is the end of the matter because s. 215 of the Organic Law on National Elections provides, inter alia:

“(3) &#16e Nat Court ourt shall hall not declare that a person returned as elected was not dully elected, or declare an election void -

(a) on the drounanof legil pral practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) o the a ofl iga other thar than bran briberyibery or u or undue influence or attempted bribery, unless the Court is satisfied that the result of the election waely taffecand tt is that the candidate date shoulshould be d be decladeclared nred not to be duly elected or that the election should be declared void.”

In fact, whether there was an illegal practice or not the result of the election in this case would not be affected and I am satisfied that it would be unjust to declare the candidate not duly elected or to declare the election void.

I also see no need for a recount of the ballot papers as requested by the petitioner because there was no evidence in the trial to suggest that there was any error in the counting of the ballot papers. I am of the view that if the said papers were recounted nothing would be gained and the result would be the same. There is no reason whatsoever to recount the ballot papers.

I must now turn to illegal practices because s. 216 of the said Organic Law provides:

“Where the National Court finds that a person has committed an illegal practice, the Registrar of the Court shall promptly report the finding to the Speaker and to the Electoral Commission.”

On the evidence before me, I am satisfied that one Paul Amaiu committed an illegal practice by knowingly, bringing people to vote illegally at Laikam and Wakumale. I prefer the evidence of the petitioner’s witnesses to that of the first respondent on this point. As I stated previously, Senga Teina saw Paul Amaiu carry the people in and Senga named the people. He argued about them voting but to no avail. He knows Paul and Tom Amaiu well as he has stated that he is a relative, although Paul Amaiu subsequently denied the relationship. But whether they are related or not, it is clear that Senga and the Amaiu brothers know each other. I believe what Senga said and I have no reason to disbelieve him.

There was only one small part of the evidence to suggest that Tom Amaiu committed an illegal practice and that was when Senga said that he argued with Tom Amaiu on the polling day at Laikam. Tom Amaiu swore that he was not at Laikam on the day and hence he did not argue with Sanga. Even though I suspect that Tom Amaiu was at Laikam on the day I am quite satisfied that the evidence before me falls far short of proving that he committed an illegal practice. That is he and his supporters acted improperly and illegally in arranging to bring and bringing unqualified voters from outside the electorate to vote in the electorate when they were aware they were ineligible to vote. The evidence on the particular argument was sadly lacking and I am not here to guess what it was about.

Yatu Kumane also saw Paul Amaiu drive people to Laikam and he also saw Tom Amaiu at Laikam. Needless to say Yatu did not know who the people were and he was guided somewhat by Senga Teina. He described Paul Amaiu’s motor vehicle in a similar fashion to Paul Amaiu’s description of it.

As already mentioned, Beru Lamao gave evidence that he voted illegally and that Paul Amaiu picked him up to vote. The witness said that Paul Amaiu told him to give his vote to Tom Amaiu and he did so. He was asked: “Was anything else said to you by Paul Amaiu to make you come to vote?” He answered: “Yes. He told me Neapukali Kemben will win the election and we’ll give our vote to Tom Amaiu. Because he told me like this I voted for Tom Amaiu.”

Later he was asked: “Could you tell us what else happened?” He replied: “After we casted the votes Sanga Teina saw us voting so we cast the votes and escaped.” Then: “Where do the other 5 come from”? He answered: Belong to my clan.” Question: “Are they all from Wapenamanda?” Answer: “Yes.”

Finally in cross-examination the questions and answers went as follows:

“Q: you voted thatdday did youd you think you were breaking the law?

A: ҈ I60; I knew I brokeutw bey theyd me a witness I came here. (Witness warned re self-incriminationation).

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Q:&#1Q: &#16d you fhat yre dohe rige right and proper thing by voting?

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A:&#1A: < I#don&;t217nt wa talo on t on this.&#822>

e alrmentiJim Saka and he also made a pe a positiositive idve identifentification of Paul Amaiu transporting people to vote illegally.

O whol petir’s witnesses imes impresspressed meed me even though some of their evidence differed. This must be expected in any case, as long as the differences do not exceed the bounds of acceptability. I have no doubt that those witnesses saw Paul Amaiu and that they were aware that his passengers were and did vote illegally.

The first respondent’s case was that the polling was peaceful and uneventful. When asked: “Did your scrutineers report back any incidences?” the first respondent said: “There were no incidences in Kompiam.” That answer was not true because later on a report of Simon Pospai, the Presiding Officer, to the Office of the Electoral Commissioner dated the 11th December, 1987 was tendered (EXK1.) which referred to incidences that occurred at Laikam regarding illegal voting. Mr. Pospai was clearly “caught out” in the witness box when the report was shown to him because shortly before hand he had given evidence that the polling at Laikam was incident free. I was not impressed with his explanation that he did not consider the matters in the report as serious and that is why he did not mention them in Court. I am of the view that if that was true then why report them to the Electoral Commission at all? If it was necessary to report on it then Mr. Pospai should have referred to it in Court. He attempted to cover up the incident and present a peaceful picture. Clearly there were incidences and that of course places credibility on the evidence of the petitioner’s witnesses.

The production of the said report caused me to lose considerable confidence in the first respondent and his witnesses and I am satisfied that they were not being exactly honest in Court and gave an incorrect account of events. At the end of the day I am unable to say what part of their evidence is true and what is not.

Therefore as I have already said, that even though I find that Paul Amaiu has committed an illegal practice pursuant to s. 216 of the said Organic Law, I am satisfied that Mr. Kemben’s petition must fail and therefore the petition is dismissed.

I order that the petitioner pay the first respondent’s taxed costs.

Lawyer for the petitioner: Steeles.

Lawyer for the first respondent: Warner Shand.

Lawyer for the second respondent: State Solicitor.