Palme v Mel [1989] PGNC 30; N808 (20 December 1989)

Unreported National Court Decisions

N808

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 78 OF 1987
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURNS FOR THE ANGLIMP SOUTH WAHGI OPEN ELECTORATE
ROGER TONGAI PALME
PETITIONER
AND
MICHAEL MEL
FIRST RESPONDENT
AND
RUBEN TERATERE
SECOND RESPONDENT
AND
THE ELECTORAL COMMISSION
THIRD RESPONDENT

Mount Hagen

Woods J
1-4 August 1989
7-9 August 1989
16-17 October 1989
20 November 1989
20 December 1989

PARLIAMENT - Elections - Disputed Election Petition - Bribery and Undue Influence by Supporters and Agents of the candidate - S. 204 and 215 of the Organic Law.

Cases Cited:

Allan Ebu v Roy Evara [1983] PNGLR 201

Holloway v Ivarato [988] SC 348 (Unrep.)

Torato v Balakau [1989] N 694 (Unrep.)

Thompson v Pokasui [1989] (Unrep.)

Counsel:

Mr Sasu for Petitioner

Mr Sleight for First Respondent

Mr Sirigoi for Third Respondent

WOODS J: The Petitioner is Petitionition is challenging the return of Michael Mel at the National Elections in 1987 on grounds of bribery to procure electors to vote for him. There are also allegations of errors and ions by electoral officialscials.

At the beginning of the case certain preliminary matters were raised. Firstly, it was submitted that certain allegations related to dates prior to 3 months before the polling namely to a period when the respondent was not a candidate. It is submitted that a person is not a candidate until he is nominated for election and therefore any reference to any acts if prior to that time are irrelevant by virtue of section 215 and the ruling of the court in the case of Allan Ebu v Roy Evara [1983] PNGLR 201. It was therefore submitted that any alleged acts of bribery committed prior to 19th of March 1987 should be struck out as they cannot set out the facts relied upon to invalidate an election as required by S.208 of the Organic Law on National Elections. I ruled at the beginning of the case that I adopted the ruling made in the case of Allan Ebu that there can be no candidates earlier than three months before the start of polling and any alleged acts of bribery prior to March 1987 cannot be facts relied upon to invalidate an election. I therefore struck out allegations relating to acts prior to the 19th of March being the date three months prior to the polling and such allegations struck out were allegations 4:(i), 4:(ii), 4:(iii) and 6:(i), 6:(ii) and 6:(iii)

Secondly it was submitted that certain allegations were too vague and therefore cannot be held to set out the facts relied upon under S.208. In this instance, certain allegations do not specify the person alleged to have been bribed and it was submitted that without any identification of who was being bribed there were insufficient facts upon which a challenge can be relied.

Bribery is a criminal offence as well as a statutory offence and it is therefore a serious allegation and as such must be alleged in sufficient particularity to allow parties to fully answer the charge. A person is guilty of bribery if he gives any money or procures any office to or for any voters in order to induce any voters to vote or refrain from voting. Therefore any allegations of bribery must be specific enough to enable the defendant or respondent to know who was offered the bribe or inducement. Therefore such allegations must specify the persons bribed. This is covered by the principle enunciated in the case of Holloway v Ivarato SC 349 July 1988 and reiterated by me in Torato v Balakau N 694 March 1989. Therefore for the above reasons and by virtue of the above authorities I struck out allegations 4:(vii), 4:(viii) & 4:(x).

Mr Sasu also indicated in the beginning of the case that he would not be presenting evidence on grounds 4:(xiii) and 8:(iii).

During the case, a further submission was made on the drafting and relevance of the allegations in Clause 6 & 7 in the petition. The allegation is that if the Petitioner succeeds in proving the facts involved in the allegations 6 & 7 they do not constitute any illegal electoral practice. The allegations involved alleged acts of bribery committed by supporters and agents of the First Respondent with his knowledge and authority and it is alleged that such action should void the election. Bribery and undue influence are defined in the Criminal Code S.103. S.215 of the Organic Law refers to voiding election for illegal practice but makes no reference to the candidate having knowledge of someone else committing bribery or undue influence on the candidates behalf. These allegation appears to have been made on the basis of S.204 of the Organic Law on National Elections which refers to knowledge of the offences by the candidate, however S.204 only relates to offences in part xvii of the act and that part does not include the offences of bribery and undue influence. Firstly, in ruling of this application it has been submitted that this application has been made part way through the case and not at the beginning therefore it should not be considered now. I see no reason why I cannot rule at any stage of a case if it means a simplification of the hearing of the case and I refer here to Bredmeyer J. in Allan Ebu v Roy Evara [1983] PNGLR 201 where he said that s 217 enables the court to adopt a stage by stage approach. Allegations 6 & 7 are not directly alleging bribery or undue influence by the Respondent himself but rather that others did it but he knew it. It is not alleged in the wording of the clauses that he procured or counselled the bribery or undue influence just that he knew and I note that knowledge of an illegal practice or offence is referred to in s 204 act of the Organic Law but s 204 only relates to offences in Part xvii of the Act and that does not include bribery and undue influence. It would appear that by the drafting in Clause 6 and 7 the Petitioner is trying to make the Respondent absolutely liable for the acts of his agents. Whilst he may in fact prove a nexus he has not alleged it properly. He should have either alleged a nexus by procuring or counselling or have alleged specific acts of bribery and undue influence by others which could have affected the results. In the circumstances I found that clauses 6 & 7 were not drafted in accordance with the requirements of the Organic Law. Thus they appeared to be superfluous to the hearing of the petition and I struck out Clauses 6 & 7 from the petition.

After all the above rulings and after the Petitioner indicated that he was not presenting evidence on grounds 4:(iv),(xi),(xiii) and 8:(iii) I find that the only grounds left on the evidence are grounds 4:(v), 4:(vi), 4(ix), 4:(xii), 4:(xiv) and 8:(i), 8:(v) and 8:(vi).

With respect to allegation 4:(v) which alleges a gift of K100 to Pikip Kerowa to induce him to vote for the First Respondent the witnesses for this allegation gave a story of a clansman being jailed so Michael Mel gave K100 to a relative to bail the clansman out because the relatives were worried and were asking for the money. Mr Mel disputes this evidence although he does recall an incident which appears to be the same incident where he was with the President of the ANGLIMP Council and a request was made by somebody for money to bail a relative out of jail and he recalls he did not have the money to lend and the President of the ANGLIMP Council gave the money to the person who asked for it. I find that there is no evidence to suggest any bribery here and it would appear anyway that the First Respondent did not himself give the money and there was no suggestion of this money being given to induce someone to vote for the Respondent. It was only in answer to a request for a need at the time. I therefore find this does not involve the offence of bribery by the First Respondent.

Allegation 4:(vi) alleges that the First Respondent gave a coffee pulper to Maime Onom and this was done to induce him and for him to induce other people to vote for the First Respondent. However, there is some conflict in this evidence such that I am not sure what happened. The evidence of the witnesses who support this allegation appears to conflict as to who actually gave the coffee pulper to Maime Onom and he himself did not give any evidence to support this matter. One witness says that Mr Mel gave the coffee pulper while the other witness says that he himself brought the pulper. On the other hand the First Respondent does not deny giving a Coffee pulper to Maime Onom but says it was in answer to a request to support the village coffee production. At the time the First Respondent was in the business of coffee buying and felt that any way in which he could support people in their production of good saleable coffee was going to help them and also help him in his business. I therefore find this was not given to him to induce a person to vote for the Respondent but it was given purely for business support.

Allegation 4:(ix) alleges that the First Respondent gave a coffee pulper to Kila Knan as a form of bribery to induce him to vote for the First Respondent. Kila Knan himself gave evidence about receiving the coffee pulper although there is a discrepancy in the evidence as to exactly how he received the pulper whether from Mr Mel personally or from another person called Peter Konspil. In his evidence Mr Kila Knan states he was on a committee to work for the election of Michael Mel. The question therefore must be, is it bribery to give something to a person who is already a committed supporter of the candidate. Kila Knan gave evidence that he hosted Michael Mel with food and was a committed supporter. Mr Mel was a businessman in the coffee business and was keen to support village coffee to help his coffee buying enterprises.

Bribery suggests something under hand and sinister but there can be nothing sinister or under hand by assisting a supporter or a committee man to do his job. There was no threats or offers to give in exchange for votes. I compare this fact situation with the facts in the case of Thompson v Pokasui August 1989 where the court found the candidate clearly misused his position to hand out cheques to people as part of his election campaign thereby suggesting he had some influence in the raising and handing out of these cheques. And the candidate had actually done this after it had been made clear that such handling of cheques should only be done by Department of Defence officials as the cheques themselves came from the Department of Defence and had nothing to do with the candidate. The evidence clearly suggests that the handing out of the cheques and what was said at the time did influence the voters as it was suggested that it was the candidate who had arranged for the cheques for the recipients and possibly even could arrange for further cheques. However, in the case before me now the recipient of the coffee pulper was already a supporter of Michael Mel so much so that he was on Mr Mel’s campaign committee so there can be no concept of offering him an inducement to persuade a person to vote a certain way when he was clearly a supporter already and was going to vote infavour of the candidate. In the circumstances I find that there can be no suggestion of bribery or undue influence here.

Allegation 4:(xiv) alleges that the First Respondent gave cash, the sum of K2,700, to Wapi Ondi to bribe voters. A number of witnesses gave evidence of this being done in 1987 at an office in Mount Hagen. One witness said he was in the office when the money was given for coffee machines and talks of K250 being handed out to a number of people. However, it is clear from the evidence of the First Respondent and one of his witnesses that the building and office referred to had been demolished well before April 1987 actually in about November 1986. And further, the First Respondent does recall meeting Wapi Ondi in or about September 1986 when Wapi Ondi had asked for some money to buy a second hand car. Mr Mel states that he handed out K2,700 to Mr Ondi for that purpose. I therefore can find no suggestion in the evidence that this was bribery or undue influence in connection with the election of the First Respondent.

Allegation 8 relates to errors or omissions and or illegal practices by the electoral officials during the election. Allegation 8:(i) refers to polling at a polling station outside the ANGLIMP SOUTH WAHGI electorate and states that this was therefore an illegal practice of the electoral officials that should void the election. It is submitted that voting was illegally conducted by electoral officials at ANGLIMP Forestry Station which is outside the Anglimp South Wahgi electorate and this voting was by persons eligible to vote in the Anglimp South Wahgi electorate. There seems to be no dispute that polling was conducted at the polling booth outside the boundary of the electorate and no real explanation has been given as to how that could be done. This obviously raises questions as to the validity of those votes, However there is no clear figures given as to how many votes may have been involved. At the very most these could not be near the figure for the margin between the First Respondent and Petitioner in the final count. If petitioners raise these type of allegations they must have evidence of how many votes could be affected and this would be done by the scrutineers making a note of what happened at the voting and how many votes were counted out of the particular boxes and which particular numbered boxes came from this poll. The evidence in this case gives us no details of exactly how many boxes, which boxes and how many votes came from these boxes. I therefore find that there is insufficient evidence here for me to consider whether the election should be avoided.

Allegation 8:(vi) relates to the number of boxes finally counted but this was not supported by any evidence.

In conclusion I find that the allegations do not support the voiding of the election and I therefore dismiss the Petition.

Lawyer for the Petitioner: L Sasu & Associates

Lawyer for the First Respondent: Blake Dawson Waldron

Lawyer for the Third Respondent: Secretary for Justice