Mel v Wii and Electoral Commission [1993] PGNC 8; N1178 (20 October 1993)

Unreported National Court Decisions

N1178

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 195 OF 1992
In the Matter of the ORGANIC LAW ON NATIONAL ELECTIONS
In the Matter of a DISPUTE OF RETURNS FOR THE ANGLIMP-SOUTH WAHGI OPEN ELECTORATE
MICHAEL MEL - Petitioner
v
WILLIAM EKIP WII - First Respondent
THE ELECTORAL COMMISSION - Second Respondent

Mount Hagen

Woods J
18-20 August1993
8-9 September 1993
6 October 1993
20 October 1993

PARLIAMENT - Elections - Disputed election petition - bribery and undue influence - Organic Law on National Elections S. 215.

Counsel:

J Reeves & M Koiri for the Plaintiff

P Paraka for the First Respondent

A Manase for the Second Respondent

20 October 1993

WOODS J: This is a Petition disputing the election of the First Respondent as Member for the Anglimp-South Wahgi Open Electorate in the National Parliament in the 1992 National Elections. A numberllegations were mare made inection with the behaviour iour of the First Respondent or his agents and failings of the electoral officials however after a prelimihearing certain clauses were struck out for failing to comp comply with the Organic Law. When ttter came before me e me for trial there were only three clauses remaining in the Petition namely clauses 6 (a), (b) and (c) which allege acts of bribery and unnfluence by the First Respondent by handing out certain chen cheques to voters to induce them to vote for him in the election. fore being acts of briberyibery committed by the First Respondent himself under Section 215 (1) of the Organic Law on National Eons the Petition is claiming that the election must be declared void.

The acts of brof bribery alleged are:

a) ҈ T60; That certain csequee were made out and handed to the following:

William Kulda K100;

Anrowa K200;

Kewa Nekints K200;

James Wanko K100;

Ken from Kandep K100;<100;

to induce them and their family members to vote for the first respondent.

b) &##160; That a cash cheque eque for K100 was handed to Jeffrey Amtie to induce him to vote for the first respondent.

c) ; That a cash e eque for K10r K100 wased tolip P160; to indu induce hice him to m to vote for the first respondent.

At the hearing the Petitioner did not bring any evidence to supthe talleg namely clause 6 se 6 (c).<(c).

The First Respondent has again submitted that these clauses 6 (a) and (b) should still be struck out for failure to properly comply with S. 208 of the Organic Law. This however was comprehelsively argued at the preliminary hearing last year when the remaining clauses were struck out and again at an earlier date set for trial and further on appeal e Supreme Court and at all times the Judges declared that that they were satisfied that the clauses pleaded sufficient facts for the purpose of S. 208 of the Organic Law and I do not feel it is really open to the Respondent to argue this matter a third time but even if I did hear his arguments I would have to find that on any interpretation of S. 208 and as the Court has clarified on numerous occasions these clauses 6 (a), (b), and (c) are sufficiently clear and with enough particulars to comply with S. 208. The same argument would apply with respect to the submission that the claim for relief is defective. This is a matter that s hald have been covered in the preliminary hearing but I find no merit in the submission now.

In accordance with directioven for the expeditious hearing of the petition the evidence for the Petitioner was reducedduced into affidavit form and the deponents then appeared before the court for the purpose of cross-examination.

When the matter first came on for trial there had been no direction for the respondents witnesses to place their evidence on affidavit and following the completion of the Petitioner’s evidence the First Respondent’s evidence commenced with full oral examination in chief and cross examination. However after three of the First Respondent’s witnesses had been completed the court ran out of sitting time because of the wrong estimates made as to the time required for the trial so the further hearing had to be adjourned. To ensure an expous continontinuation of the hearing directions were given that the evidence of the remaining witnesses for the First Respondentto be reduced into affidavit form and filed and served before the date for the further hear hearing in September. This directio not compliedplied with however in my discretion I did accept that certain affidavits filed and served albeit late would be acceas being filed and served in time however the affidavits of some further witnesses were quie quite clearly not filed and served in accordance with the directions and therefore the evidence of those witnesses would not be admitted before the court. I felt the First Respondenondent had ample opportunity to prepare his case and evidence as there was no excuse considering the quite ade time between the hearing dates, he actually should have had that evidence ready at the tihe time the hearing commenced in August.

THE EVIDENCE FROM THE PETITIONER

Evidence was presented about a number of cheques. The evidence was th the wehe weeks prior to the actual polling a person went to the Bank of the South Pacific and opened a current account with thak. Then for the purposes of that account a number of 50 leaf cheque books were obtainbtained for the operation of that account. A Senior Officer of the Bank did say in evidence that the issuing of that number of cheque books on that account was contrary to good banking practice. Therethen evidence that onat on the day after polling had taken place a number of people attended at the Bank of the South Pacific in Mount Hagen and presented cash cheques for encashment for amounts ranging from K100 to K200. Tcheques apparently came fame from the cheque books supplied on the account referred to above. Tnk was unable to pay o th o the cheques presented as there were insufficient funds in the account. At first the the cheques were just returned to the holas refer to the drawer because of insufficient funds howeveowever according to the Officer of the Bank as an increasing number of peoame with these cash cheques on that one account the Bank benk became suspicious and started to suspect that some kind of fraud was being perpetrated and marked the cheques accordingly. Some ose cheques were reta retained by the Bank for the purpose of their own internal investigation and have been identified and presented in evidence. The Bank Offias able to sato say in evidthat following his perusal usal of the cheques in question and from his many years experience as a bank officer and from his perusal her documents held by the Bank he was satisfied that the sihe signatures on the cheques in question in this case were the signature of the First Respondent. Thicer made the poin point though that these cheques were not drawn on the pre-existing account in the name of the First Respondent but rather against the new account opened in another name and opened shortly prior to the datpolling.

A witness Jess James Amtie gave evidence of the First Respondent and others coming to Kindeng and giving him a cheque for K100 on condition that he and his family vote for him. The cheque was post-dated to after the day of polling and was tendered in evidence and has the signature alleged to be that of the First Respondent. James Amtuck to his evidencidence d the cross-examination.

James Wanko gave evidence ofce of the day before scheduled polling being picked up from Wurup in a busbeing eventually brought to Hagen town where he was given aven a cheque for K100 and told to vote for the First respondent. Theondent was in the compacompany of others of his election campaign team when he handed him the cheque. The cheque was tenden evi ence and has the signature alleged to be that of the First Respondent. He was cwas cross-examibou about the trip that dayhe bus and who else was picked up to ride in the bus but he stuck to his story of the FirstFirst Respondent giving out the cheque to lf as well as to others on that afternoon in Hagen, anyway yway it was not suggested in cross-examination that the meeting in the park did not take place.

William Kulda gave evidence of the day before the scheduled polling being picked up from Wurup in a bus and being brought to Hagen where he was given a cheque for K100 and told to vote for the First Respondent. The chequetendered in evid evidence and has the signature alleged to be that of the First Respondent. He ross-examined about thpt thp that day and where the bus went but he stuck to his story of the First Respondent handingnding out the cheque on the promise to vot60; Again he was not cross-examined that the meeting in then the park did not take place.

Annis Kerowa gave evidence of being told some days before the polling that the First Respondent would be coming to his area to give some money to voters and he than said that on the day before polling he was picked up from Avi Market in a bus and he and some others which included some of the witnesses were brought to Hagen where he was given two cheques by the First Respondent each for K100 to vote for the First Respondent and told that the cheques were post-dated to after the polling when he could cash the cheques. However when he wenthe Bane Bank to cash the cheques after the polling the Bank refused to pay on the cheques saying there is no money in the accoun60; He then saw the First Respondent who apologised for there being no money for the chequeheques and the Respondent then gave him K20 for the cheques and took the cheques. Annis was cross-exd about bout the trip in the bus that day and who else was there but it was never suggested that the meeting in the park did not take place and it was never suggested that the witness was not the cheques although it wait was suggested that a Jonathan Kumba may have written out and given him the cheques at that meeting in the park and not the First Respondent. So the First Respondn cros cross-examination seems to agree that cheques were handed out in that meeting in the park in Hagen on the 15th June at which meeting the First Respondent was present.

Kewa Nekinte evidence of being picked cked up from Wurup in a bus and being driven around to various places during the day and finally being driven to a park in Hagen where the First Respondent gave him a cheque for K200 and told him to vote for him. After the polli then heardheard that these cheques were not being met and he got angry and went looking for the First Respondent who took the c back from him and gave him K6.80 for it. Kewa was cross-examin his his story about bout what happened that day in the bus but he stuck to his story of the First Respondent giving him the cheque. In cross examination it stems to be admitted that thst Respondent was with the the witness at the park that day when cheques were handed out.

By the end of the Petitioners case s not clear what the First Respondents position was on the the status of the signatures on the subject cheques and of course this not being a criminal case there was never any denial made at the beginning of the case on that fact. There were no questionsros cross-examination to suggest that the Respondent would allege that the signatures on the cheques were forgeries although theing in the area near the Local Government Chambers was clearly agreed to through the cross-ross- examination. It was only durin First Rest Respondent’s case that the allegation was made that the signatures on the cheques were forgeries so the Petitiwas allowed to call rebuttal evidence on the signatures. The Pener then brought ught ught in a police document examiner who gave evidence that following his examination of the signatures on the subject cheques and an examination of documents containing thst Respondent’s verifverified signatures he came to the conclusion that the signatures on the cheques were those of the First Respondent. This accords wie evidence once of the Bank Officer.

It is noted that in his case the First Respondent made no effort to bring in a expert himself to support the allegation of forgery, this was surprising seeing that the signatures on the subject cheques looked even to an ordinary layman to be the signatures of the First Respondent. Since the allegations invglving the cheques were always before the First Respondent from the time the Petition was filed in August last year there was amime to consider any relevant evidence to support any suggestion of forgery or, as any law alaw abiding citizen should have done, to report the offence of forgery to the relevant authorities.

EVIDENCE FROM THE FIRST RESPONDENT

The First Respondent himself gave evidence in which he denied ever writing the cheques or handing them out and he said it was only later that he discovered that people had forged his signature. He agrhat there was a meet meeting in a park in Hagen on the day before polling with a number of his supporters and that meeting was to brief his supporters for the polling day. He said that we latund outd out about thet these cheques he did an investigation to find out who had written these cheques and when he found out hehed him. When he was asked if h repd reported this matter of the forgeries to the pole police he said he had not as it was none of his concern. I must find thtremely crit critical evidence as surely if there had been the forgery on some cheques it would be apparent that the very existence of such cheques could lead to serious allegations about the campaigning for the elections which could and as has now seriously affected the success of the First Respondent. He has treatedtentially daly dangerous matter extremely lightly and not in the manner expected of a person seeking responsible public office. It is the job of all respoe citizens to assist with the bringing of lawbreakers, incl including forgers, to the courts.

Mr Wii also referred generally ting large support in the electorate and named a number of people as being strong supportersrters or using the word campaign managers. He even referred to some ef the Petitioner’s witnesses as being campaign managers although that status was not put to the Petitioner’s witnesses Anis Kerowa and James Wanko. Actually I found the term campaign manager used rather loosely in the evidence without any proper documentation or supporter lists to give credence to the talk of a proper campaign team.&#16e witness failed to produce any evidence of a proper campaiampaign team or programme. The witnerees with the Pete Petitioner’s witnesses that late in the afternoon of 15 June he went to the Highlands Hotel and was with a John Kumba and then at the ha PMV with supporters from Wurup arrived and he told them them to go to the area of park near the Local Government Council building where he joined them. Whilsre are serious allegallegations that at the meeting at that park certain inducements were offered to persons to vote the Respondent did not really deny much of the Petitioner’s witnesses version of events at the park although he does deny actually signing the cheques.

A witness Kau Onie gave evidence and said he was a supporter of the First Respondent and he talks about being picked up in the PMV on the 15 June and talks about some of the other persons being picked up. There is no evidence thahahe had prepared his statement for this matter last year when the writ was issued so any inconsistencies would be because of the passage of time. Of course thsage of time wime would be why he admitted in evidence that he could not recall which bank they visited first when the bus was touring around Hagen. He said th did not remain main with thers at the meeting in the the park later that day in Hagen but wandered off to get something to eat although he did confirm that al other persons mentioned were there then.

Kop Wai gaai gave oral evidence and said he was a committee man for the First Respondent. However he was inconnt in t in his evidence of what he did on the 14th June, which I find rather interesting as if he was a committee man I would have expected him to be working very hard in the last days of the campaign - he gave two versions of what he did on the 14th. I aind it very important tant that he denied knowing anything about any cheques, considering the evidence that 4 cheque book were around and according to the Bank officer a large number of people came to the bank with cheques on that account I would have expected that most people would at some stage have heard about these cheques which were handed out and then not met on presentation.

The next witness Kepa Ampla gave evidence of being a supporter of the First Respondent. He refers to the driving around on the 15 June picking up people including the Petitioners witnesses although he gives a slightly different version of the sequence of events that day to the Petitioner's witnesses. Of coursis noted that his his evidence seems not to have previously been prepared on affidavit form soon after the events but recalled in the witness box here over a yfter the events. As to the gath at the park park late late on the 15th June he says that when they all arrived at the park he went off with Kau Onie to get some food after William Wii gave them K20.

The remaining witnesses for the Petitioner gave their evidence in affidavit form some weeks later to when the trial had to be adjourned. Tol Komd he comes from them the Wurup area and he was on William Wii’s campaign committee. He maertain assumptions asns as to who were supporters of Willia including the Petitioner’s witnesses and suggests thts that they had actively campaigned for the First Respondent. He thves ailed version of n of t of the driving around and picking up people on 15 June which culminated in the gathering in the park alreeferred to by other witnesses. ves a much more detailed aled account than that of thef the witnesses who gave oral evidence earlier in the hearing. Although iclear that therethere was no written record of the days events made before the drawing of the affidavit during the adjournment of the case. Certain events weren in thin the affidavit concerning meetings with some of the Petitioner’s witnesses however these events had never been put to the Petitioner’s witnesses.

William Kut’dence by affidavit was quit quite detailed like Tol Komb although it was clear that there had been no prior written statement closer to the time of the election on which the affidavit as sworn on 2 September 1993 was based. He states he was a campaign manager for the First Respondent Again he also presents stories of events that had not been put to the Petitioner’s witnessesalso assumes certain people were supporters of the First Respondent. He talks about oout owning some dump trucks and that some of the Petitioners witnesses were constant passengers in his trucks. There are some differences with the affidavit evidencTol Komb and also he refers to events with other First Resp Respondent witnesses which had not been mentioned by those other witnesse>

The witness John Kundi said he was also a candidate fote for the seat and therefore rivalled the Petitioner and First Respondent. But he seems to be certaic which candidate many of the witnesses supported. He gives raspecific evidenvidence of events involving some of the other witnesses who were clearly not his supporters even though he is recording events that took place ovyear ago.

Because a number of matters and events invs involving Petitioner’s witnesses were raised for the first time during the evidence in chief of the First Respondent’sesses thes the Petitioner was allowed to recall those persons to rebut the evidence and they denied such events happened or such words were said.

The court has been presented with 2 maisions of events although thgh there is common material in both versions but then within the First Respondents version there are variations. Of course as the Fiespondepondent’s witnesses were apparently only asked over a year after the events to recall the events one must expect some variations and inconsistencies. On the other hand the Petitioner’s witnesses were confirming in court events which they had recorded soon after the event. All witnesses agree there was the driving around on t June and that the Petitioner’s witnesses were pickedicked up that day and then they all refer to the gathering at the Park.&#1he Petitioner’s witnesses say that the gathering in t in the park involved the handing over of some cheques, on the other hand the First Respondent and his witnesses deny there was any handing over of some cheques, although the cross-examination may not have completely denied that rather denied that the First Respondent himself handed out the cheques. And some of these Firstondspondent witnesses seem to have no knowledge at all of these cheques. Yet a number of people give given cheques as per vidence of the bank officer and by the corroboration of the actual cheques themselves.&#160 One main of conflict was wwas whethlliam Wii was himself on the bus on the 15 June. Admi Admittedly somthe Pete Petitioner’s witnesses were not cross-examin that point. But then one must also rein remember ther that the First Respondent’s witnesses were only recalling the evever a year after and I am s am surprised at the particularity of that recall considering that unlike the Petitioner’s witnesses they have only now over a year after the event been asked to recall the events.

The main issue in the case is the cheques and how they were handed over to the recipients. They definitxist, confirmefirmed by the evidence of the Petitioner's witnesses, by the evidence of the bank officer, and even the First Respondent admits to their existence. The credibility of some e First Respondent’s 17;s witnesses is definitely reduced by their feigning no knowledge of these cheques, cheques which must haused some conversation in the electorate after the election. S various versionssions ofns of who was picked up when in the bus on that day is not really of concern, I would not expect everybody to recall with certainty the events of that day when on the tself there may have been neen no real reason to have ever realised that the sequence of events was going to become important later. There is no difficulty with the gathering in the park later that day only the denials concerning the cheques. The confusier John Kumba anba and Johnathon Kumba was never satisfactorily explained by the attendance of either of them as witnesses.

e Petitioner’s witnesses were quite clear about the cheques, they were even able to p to produce some of them. They said the cheques did did influence them to vote for the First Respondent and to persuade their families and relatives to so vote ande is only the surmise of the First Respondent’s witnesses without any real concrete eete evidence that they were already supporters of the First Respondent. There is no such thing as paid up party members lists here to support these assumptions.

The evidence is overwhelming as to the First Respondent’s signatures on those cheques. That issue was obviously to be the central issue inue in the case and it was therefore vital for the First Respondent to refute that from the very beginning s case. He made no attempt to dt.&hat. It was always open to h brto bring a doca document examiner or such like expert. Howeve signatures were suce such that the bank officer himself had no hesitation in agreeing that they were the First Respondent7;s sures. Even Even to a layman theasignatures look perfect. So I tisfied beyo beyond aond all doubt that the First Respondent did sign those cheques. It is subm that the First irst Respondent may not have physically himself handed out the cheques in trk on 15 June but it was doas done by the person referred to as Johnathon or John Kumba. Who actuallsically handed nded the cheques over at the time is not critical, the First Respondent and the Mr Kumba were together acting in concert so it was the same thing

The handing over of cheques in this manner, especially ally post-dated cheques clearly comes within the committing or attempting to commit bribery or undue influence under S. 215 (1) of the Organic Law. It was clearly tving of moof money in order to induce voters to vote a certain way. There is no need for me to quote the statements of the elements of bribery S. 103 of timinal Code as in the other cases such as Agonia v Karo Unro Unreported N1115. The handing over of tequeseques in the manner docording to the evidence clee clearly comes within these statements. is no firm evidence that that the recipients of the chequee already firmly committed supporters of the First Respondepondent, as I have said there were no lists of fully paid up party members0; The witnesses indicated ated quite clearly that they were prepared to vote for the person who gave them the cheques, they felt a sense of obligation. Any rihinking citizen in a in a free election situation must only be horrified at the creation of a bank account just before an election and the handing out of post-dated cheques to voters. I have een asked to considonsider the implication of the offence of writing out and handing over cheques knowing that they would not be met on presentation. Suchtuatinnot be toleratedrated in a democratic society which rich respects the dignity of the individual and requires all citizens to papate freely without any untoward coercion in the government of the Nation. Instead thad the rects of s of the cheques were made to feel obliged to the person who handed them the cheques and their freedom of choice was taken away. These cheques were diffefrnt from the coffee pulpers in the case Palme v Mel 1Mel 1987 N808 where they were given to support a business situation which learly acknowledged by one of the recipients there who accepted a coffee pulper for the buse business reasons but still exercised his freedom of choice and voted for someone else.

Here the cheques were handed out with the proviso that the recipients had to vote for the First Respondent. The recipients were give cthe cheques on consideration of giving their votes to the First Respondent. That clearly sati the requ requirements in S. 103 of the Criminal Code for bribery. It does not matteractually opened the bank acnk account because I am satisfied that the First Respondent was a party to the handing over of the cheques to ttnesses, to Jeffrey Amtie at his block and to the others at the gathering in the park.&#160 I aisfied that such amountmounts to bribery and undue influence under S. 215 of the Organic Law. Wr William Kulda was an elan eligible voter or not does not t the situation as the cheques to the others is sufficient.ient.

Under the Organic Law it only needs one act of bribery or undfluence for an election to n to be declared void. It has been sted to me thae that by declaring an election void because of just one act of bribery is unconstitutional as it thereby deprives the majority of voters who voted rightly for the First Respondenthe right to have elected tted the person they choose. This is n argument that I at I consider has any merit. No democratic so which hash has a proper regard for the rights and dignity of mankind could accept a person into public office who has beend to committed even onen one act of bribery or undue influence in order to gain that office.&#16. Jue such act must taint hint his suitability. I have been asked ter Sect Section 215 (1) of the Organic Law to the Supreme Court as being unconstitutional acould undermine the constitutional right to vote unde under Section the Cohe Constitution. I find there is no merit irit in this argument for the reasons I have already stated above.

I therefore declare the election of the First Respondent for thlimp Wahgi Open ElectElectorate to be void.

Lawyer for tfor the Petitioner: Dakin Aisi &i

L

Lawyer for the First Respondent: P Paraka

r for the the Second Respondent: Pato Lawyers