In the Matter of The Organic Law on National and Local-Level Government Elections, Aihi v Avei [2004] PGNC 250; N2523 (26 March 2004)

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IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF THE DISPUTED RETURN IN THE
ELECTION FOR THE KIRUKU HIRI OPEN ELECTORATE IN
THE CENTRAL PROVINCE IN THE 2002
NATIONAL GENERAL ELECTIONS

COURTS & JUDGES – Election Petition trial – Fair hearing – Trial judges involvement in three (3) previous Supreme Court cases in different election petition reviews involving same electorate in which he ruled against the Petitioner – Whether proper basis for disqualification.

NATIONAL COURT – Election Petitions – Pleading of relevant facts – Standard of and adequacy of pleading relevant facts by ordinary person – Organic Law on National Government and Local-Level Government Elections, S.208(a).

NATIONAL COURT – Election Petition trial – Standard and Onus of proof of bribery allegation – Necessity for corroboration evidence of primary witnesses’ evidence.

Counsel:
I. Shepherd for Petitioner
G. Sheppard with H. Leahy for the First Respondent
D. Kombagle for Second Respondent

INJIA, DCJ: The First Respondent applies for my disqualification from presiding in the election Petition trial which is schedule to commence today. The application is supported by the affidavit of the First Respondent. The only basis of the application is that because I was a member of the bench of three previous Supreme Court election review cases in which I ruled against the applicant, a reasonable and fair minded person sitting in Court would apprehend bias on my part – that I would also rule against the First Respondent in this matter.

The Petitioner contests the application and says there that is no proper basis for disqualifying myself.

In my view, whilst it is true that I first raised the matter of possible disqualification, it is open for the First Respondent to raise such matters in the interest of fair justice. When the applicant does raise the issue by way of a formal application, the onus is on the applicant to satisfy or imputed or apprehended bias. On the information and submissions before me, I am not satisfied that the applicant has met that test. These three (3) Supreme Court decisions in which I participated are review cases where there were straight-forward points of law and/or facts already determined by the trial judge. No issues of credibility of the parties in particular the First Respondent, were determined. Each case was heard and disposed of on their own strength and merits.

I do appreciate the special role of judges in PNG where we perform dual roles – as judges of the National Court, which is principally a trial Court, and also judges of the Supreme Court, which is principally an appellate Court. This situation is perhaps not common practice in many common law countries. There are those situations, and increasingly so with limited number of judges in this country, where we preside in trial cases and review or appeal cases or vice versa, involving the same parties but in different cases raising the same or different issues. Judges need to be cautious and careful. They may wish to bring their previous involvement in cases to the attention of the parties for their views. Once a party does raise the issue of disqualification, it is a matter entirely for the judge to decide but it should be done with care. In the present case, having given due consideration to the submissions raised on the issue before me, as I have already said, I am not satisfied that a fair-minded Papua New Guinean sitting in Court would, in the circumstances, reasonably apprehend bias. And I can say that the issues of evidence, facts and law raised in this case will be dealt with on their own strength and merits. For these reasons, I dismiss the application. Costs of the motion shall be costs in the trial of the Petition.

The First Respondent applies to strike out the remaining eight (8) grounds of the Petition set out in clause 6A, (h), (j), (k), (l), (M), (o), (q), and (u) on the grounds that they fail to plead or sufficiently plead some of the relevant facts required to be pleaded under S.208(a) of the Organic Law on National and Local-Level government Elections ("Organic Law"). All these eight (8) grounds plead "bribery" as defined under S.103 of the Criminal Code as a ground for voiding the election. The remaining grounds:-

It is alleged that the First Respondent committed acts of bribery and undue influence during the elections for the Kairuku Hiri Open Electorate and accordingly his declaration and return as the duly elected Member be declared null and void on the basis of the following:-

(h) In March 2002 at Vulupindi Haus, Waigani, National Capital District, the First Secretary namely Naimo Doko gave a cheque in the sum of K1,000.00 to the following electors in the Kairuku Open Electorate in the 2002 National General Elections:

(i) Anthony Aoka of Bebeo village in Mekeo, Kairuku in the central Province.

At the time of handing the cheque to the said electors, the said Naime Doko, told the said electors to vote for the First Respondent.

It is alleged that the facts set out herein in paragraph 6(h) constitute bribery, an illegal practice under the law.

It is further alleged that the said acts of bribery was carried out with the authority and/or knowledge of the First Respondent.

It is alleged that the facts set out herein in paragraph 6(j) constitute bribery, an illegal practice under the law.

It is further alleged that the said act of bribery was carried out with the authority and/or knowledge of the First Respondent.

(k) On 6th of April 2002 at Vulupindi Haus Waigani, National Capital District, the First Respondent gave K100.00 cash to Charlie Kalo, Santonio Aisa, Aloysius Fagu’u, Henry Abau, Anthony Paru and Andrew Fagau, all of Inauaia Village, Mekeo, Kairuku in the Central Province who are electors for the Kairuku Hiri Open Electorate in the 2002 National General Elections.

It is alleged that the facts set out herein in paragraph 6(k) constitute bribery, an illegal practice under the law.

It is alleged that the facts set out herein in paragraph 6(l) constitute bribery, an illegal practice under the law.

(m) On 4th of April 2002 at Bank of South Pacific Building, along Waigani Drive Port Moresby National Capital District, the Second Respondent to the First Respondent namely Igo Pautani gave K500.00 cash each to Charlie Kalo and Andrew Laua, both of Inauaia Village, Mekeo, Kairuku in the Central Province who electors for the Kairuku Hiri Open Electorate in the 2002 National General Elections. At the time of giving the cash to each of the said electors the said Igo Pautani told the said electors to vote for the First Respondent.

It is alleged that the facts set out herein paragraph 6(m) constitute bribery, an illegal practice under the law.

It is further alleged that the said acts of bribery was carried out with the authority and/or knowledge of the First Respondent.

It is alleged that the facts set out herein in paragraph 6(q) constitute bribery, an illegal practice under the law.

(t) On 13th of June 2002 (6 days before the polling) at Tsiria village, Yule Island, Kairuku in the Central Province the First Respondent’s First Secretary namely Naime Doko, in the presence of the First Respondent, handed out a cheque of K20,000.00 to the Headmaster of St. Patrick Top Up Community School namely Raphael Aitsi at a large public gathering which included Jimmy Tea’au of Pinupaka village; Aisi Arua of Pinupaka village; Louis Aitsi of Tsira village; who all are electors for the Kairuku Hiri Open Electorate in the 2002 National General Elections.

It is alleged that the facts set out herein in paragraph 6(t) constitute bribery, an illegal practice under the law.

It is further alleged that the said acts of bribery was carried out with the authority and/or knowledge of the First Respondent.

It is alleged that the facts set out herein in paragraph 6(u) constitute bribery, to the extent that that statement amounts to be a promise or offer to give or confer or procure or an attempt to procure a benefit to electors, an illegal practice under the law.

In relation to ground (h), it is submitted for the First Respondent by Mr Greg Sheppard that the specific date in March is not pleaded. Applying the principles enunciated by Bredmeyer J in Allan Ebu v Roy Evara [1983] PNGLR 201, and subsequently applied by Woods J in Palme v Mel & other N808, it cannot be said with certainty that the alleged bribery pleaded in that paragraph was committed by the First Respondent’s employee when the First Respondent was a candidate and therefore the bribery relates to the subject election. Therefore, this ground should be struck out. It is submitted for the Petitioner by Mr. Ian Shepherd that although the specific date in March 2002 is not pleaded, since the Writ was returned on 15 June 2002 it is possible that the bribery occurred during the three (3) months election period preceding the return of the Writ. He submits the benefit of the doubt should be given to the Petitioner, and this ground should remain for the precise date in March to be clarified by the evidence.

The pleading of the precise date on which the alleged bribery is alleged to have occurred is one of the specifics of a bribery allegation. As Sheehan J said in Agonia v Karo [1992] PNGLR 463 at p.470, a case cited by counsel for the First Respondent: "In the case of bribery, as well as the specifies of the particular allegation, such as the names, numbers, dates, place, these must be allegation that this money, that property or that gift was offered by the successful candidate" or his agent. Bribery is a criminal offence and a serious allegation to make and precise and specific facts must be pleaded. The requirement to plead the specific date is necessary to show that the alleged bribery took place for purpose of influencing an elector, in respect of the subject election. To not plead the specific date of the alleged bribery is a material defect on a Petition, which cannot be cured now at this stage of the proceedings by amendment or otherwise or even with the offer of evidence at the trial. For these reasons, I strike out ground (h). It is not necessary to deal with the other grounds of objection to this ground.

In relation to allegation (j), it is submitted by Mr Greg Sheppard that this grounds fails to plead the purpose for which the First Respondent’s Second Secretary gave a cheque for K1,800.00 to the six (6) named electors at the Vulupindi House, NCD on 5/4/02. He submits the relevant purpose here is that it was given with the intent or purpose of procuring or inducing the elector to vote for the First Respondent or to unlawfully interfere with the free exercise of his right to vote a candidate of his or her choice. He quotes extensively from Sheehan J’s statement of principle in Agonia v Karo, where His Honour referring to S.103 of the Criminal Code said at p.469 – 470:

"Without analyzing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector – defined as any person entitled to vote at any election – or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election."

"It is also clear that there is in s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements on "account of", or "in order to induce", or "with the intent that", are all phrases that show that the purpose of offering the inducement is an element of the offence. .....

"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."

Mr Ian Sheperd does not contest the relevance and application of these principles to the present case. He submits whilst ground (j) per se does not plead the purpose for which the cheque was given, this ground must be seen together with all the other grounds which are related. Although the bribery incidents occurred on different dates and places, the same electors for the same electorate were targeted, and the allegation in ground (h), (m),(q) which plead the purpose of the gift or payment applies to grounds (i), (k), (l) and (o) which do not plead the purpose of the payment or gift.

The principles enunciated in Agonia v Karo, have been applied by many judges in election petitions, and I do not see any reason to depart from that course. I myself made references to and adopted some principles in that case both in the National and the Supreme Court: see Karo v Kidu [1997] PNGLR 28 and Mune v Agiru SC 590 (1998).

In my view, I should say at that outset, that pleading of relevant facts does not mean pleading the law or the requirements or elements of the offence, or a re-statement of the elements of the offence in some meticulous fashion. After all, the intention of the Organic Law is that an ordinary citizen who is aggrieved by the result of an election should be able to come to Court without the assistance of a lawyer if he chooses not to have one, to file an election petition and prosecute it. In my view, the pleading in clause "(m)" that "at the time of giving cash to each of the said electors, the said Igo Pautani told the electors to vote for the First Respondent" sufficiently describes the improper purpose for which the money was given - to induce, influence or persuade the named electors to vote for the First Respondent. Similar pleading appears in ground (q) which says "In saying that, the First Respondent also appealed to the gathering including the said Mark Onda, Paul Fole and Peter Kavala to vote for him." For this reason, I am satisfied that grounds (m) and (q) plead the purpose of the gift or payment when they use similar terms. I will allow these two grounds to go to trial.

In relation to grounds (j), (k), (l), (t) and (v), they fail to plead the purpose for which the gift or payment or promise was made. In my view, these grounds allege specific acts of bribery occurring at different places at different times involving different forms of benefits and there needs to be specific pleading of the purpose of the payment gift or promise made on each occasion. Bribery is a criminal offence and each act of bribery constitutes an offence of its own. There is no such thing as one offence of bribery repeated at different places and times, with the same purpose in mind throughout.

The significance of the necessity to clearly and specifically plead the purpose of the payment, promise of gifts becomes even more paramount in the fact situation in the present case. The bribery is alleged to have been committed either by the First Respondent or his agents or servants in the form of "First or Second Secretary to the First Respondent", which I take to mean that the First Respondent was occupying a position in Government, for which he employed a First or Second Secretary. And if I may be permitted to surmise a little here, but at the same time take judicial notice of a publicly known fact that, at about that time the First Respondent was the sitting member of the Parliament for the electorate and a Minister of the State. It would have to be in his capacity as a Minister that he would have employed the First or Second Secretary because ordinary members do not employ First and Second Secretaries. It is necessary to plead the purpose for which the money or promise was made, to clearly distinguish those payments, donations, promises, etc. made in the performance of his duties as a Minister of the State or Member of the Parliament, and those payments, etc made purely for inducing electors to vote for him in the subject election. The former may not amount to bribery whereas the latter certainly may. For these reasons, I strike out these grounds as offending the requirements of s 208(a) of the Organic Law.

In summary then, I strike out six grounds, namely grounds (h), (j), (k), (l), (t) and (u). I refuse to strike out two grounds namely (m) and (q). These two grounds proceed to trial.

In relation to the remaining two grounds of bribery, the petitioner called one witness for each allegation. Mr Charlie Kalo gave evidence to support ground ("m") and Mr Mark Onda gave evidence to support ground ("q"). They were cross-examined by Mr Greg Sheppard on their original statements and other evidence given in court. The First Respondent gave evidence in respect of both grounds. Mr Igo Pautani gave evidence on ground (m) only. They were cross-examined by Mr. Ian Shepherd . The evidence in terms of witness numbers is two against two.

I should first start by setting out what the law requires in terms of the burden and standard of proof of a bribery allegation in an election petition and the requirements of a bribery allegation which needs proof. The Petitioner, as Mr Greg Sheppard submitted, carries the burden of proof of the allegation set out in the Petition. In an allegation of a criminal nature such as bribery, the burden is more heavier than if the allegations are of a non-criminal nature. Bribery is a serious criminal offence and indeed a very serious allegation to make in an election petition. It only takes one proven instance of bribery to void an election and serious consequences obviously follow from that. The standard of proof is as the same as or should I say close to the criminal standard first set out in Bourne v Voeto [1977] PNGLR 298 at 302 and later adopted in Agonia v Karo at p.468. And there is of course s.217 of the Organic Law which says when the court is dealing with the evidence, it is not bound by technical and legal rules of procedure and evidence; instead the court must be guided by "the substantial merits and good conscience of each case."

In a bribery allegation, the Petitioner must prove the essential elements of bribery as defined under S.103 of the Criminal Code. He must prove that the person gave or promised to give a property or benefits in order to induce an elector to vote for a "person" at an election.

Counsel for both parties made detailed submissions, both oral and in writing, and referred me to many cases and the evidence. It is not necessary to re-state the evidence given by each witness because the evidence is fresh in our minds. I will deal with the main points in the evidence and submissions and address them.

The first point in contention is whether the First Respondent was a "candidate" when the alleged bribery was committed. The Petition does not plead the date his nomination. The First Respondent also would not give the exact date, but said he nominated about a week later.

In my view, as a mater of practice, the onus is on the Petitioner as well as the First Respondent to supply the date of nomination. As a matter of law however, the Petitioner must provide the date as part of discharging its onus of proof. The date of nomination can be easily obtained because it is a matter of public record, but neither party was able to disclose the exact date. But having said this, I am not entirely sure, on the authority of Allan Ebu v Roy Evara [1983] PNGLR 201 at 203 – 204, if it is necessary to prove that the bribery is offered to induce the elector to vote for a candidate at an election. The wording of S.103(a)(iii) under which the present allegation of bribery falls into, says to "induce the return of any person at an election"; it does not say to induce the return of a "candidate at an election." Further, this kind of argument should have been raised at the objection to competency stage and dealt with there. For these reasons, I refuse to dismiss this ground on the basis of this technical ground.

I will now proceed to deal with the merits of the Petition on the remaining two grounds.

The basic element to establish first by evidence, is the "giving or promise to give the property or benefit." In this case, it is the money and the water pump.

In relation to allegation (m), the evidence of Charlie Kalo is that the First Respondent’s Second Secretary Mr Igo Pautani gave him and Mr Lawrence Laua K500.00 each and told them to go to the village and vote for the First Respondent or words to that effect. For this reason he changed his mind and voted for the First Respondent. Mr Kalo does not say whether this money is for school fees for his or Mr Laua’s children’s school fees. There is evidence from both the First Respondent and Mr Pautani that the First Respondent personally approved of payments out of the discretionary funds and he signed the cheque on the BSP cheque account under which those funds were held.

Mr Pautani says the only payment he made to Mr Laua was K300.00 cash re-imbursement for school fees paid by a cheque to Port Moresby Institute of Matriculation, which was not presented. Mr Pautani said he never met Mr Kalo and paid him K500.00.

Mr Ian shepherd submitted that this money was in fact for school fees and it came out of the First Respondent’s discretionary funds. Mr Shepherd submitted that I should find that the sum of K500.00 was in fact paid to Mr Kalo by Mr Pautani and that the First Respondent approved or knew of, approved of and authorized the payment to Mr Kalo. Mr Greg Sheppard submits the evidence of Mr Kalo lacks corroboration and it is unsafe to accept his evidence.

In my view, the allegation of bribery in the Petition is not that Mr Pautani paid the K500.00 from the member’s discretionary fund for school fees in order to induce Mr Kalo to vote for the First Respondent. This is a new development which fits in well with the evidence of authorization by the First Respondent, to satisfy the requirements of s.215(3)(a) of the Organic Law, for it would not be possible to connect the First Respondent with payments of cash made by Mr Pautani from his own sources for other reasons. I do accept that Mr Pautani was not a good witness because he was evasive during cross-examination on many occasions but I am unable to find that he lied to the Court. Mr Kalo appeared to be a good witness but tended to exaggerate and dramatize his evidence a bit and appeared to be politically biased against the First Respondent. What baffles me too is why he, out of thousands of electors from the Kairuku Hiri electorate, was singled out to be paid this big amount of money for just one vote, when he is not a chairman of a campaign committee or leader capable of exerting influence on other electors. Mr Kalo’s evidence is that Mr Pautani cashed a cheque of K1,000.00 at BSP, Waigani and gave them K500.00 each, but there is no evidence from the Petitioner to show that such cheque was cashed on the relevant date. If this evidence was available, it would negate Mr Pautani’s evidence that he only cashed this K300.00 cheque on that day and prove him to be not a witness of the truth. If this cheque for K1,000.00 came out of the First Respondent’s discretionary funds, there is no evidence that a cheque for that amount was cashed at BSP, Waigani on 5/4/02. If the payment to Mr Laua was out of the First Respondent’s discretionary funds for school fees, or reimbursement for school fees, then I can understand the basis for the payment to Mr Laua. As for the payment to Mr Kalo, he had no reason to seek out or be given funds out of the member’s discretionary funds. As it turned out, as he said, he used up the K500.00 himself.

On the whole of the evidence, I find Mr Kalo’s evidence lacking in weight. Mr Kalo’s evidence lacks corroborative evidence either from Mr Laua or any other evidence such as bank account statements on the account operated by the First Respondent for discretionary funds. I any event, I find the attempt to connect the First Respondent through payments out of his discretionary funds, to the alleged bribery payment, as a recent invention to accord with the evidence of the respondents as it unfolded in Court.

On the evidence as it is, I am unable to find and it is unsafe for me to find, that the said payment was actually or so made and that it was made with the knowledge and authority of the First Respondent.

In relation to ground (q), the evidence of Mr Mark Onda is that the First Respondent brought a water pump and presented it to the Sabusa village community and at that time, he appealed to the people gathered there to vote for him. The exact words he used were something like – you vote for me on Thursday, I will bring water to the village or words to that effect. He said he would return the next day to install the pump which he never did. On the basis of this evidence, he changed his mind and voted for the First Respondent.

The First Respondent said he did go to Sabusa during the campaign period to help campaign for one of his loyal supporters who was vying to be a councillor and also to visit the Elementary School but denied presenting the water pump. Presentation of water pump for water projects in the area was a Provincial Administration responsibility and managed by the District Budget Priorities Committee, and not his concern.

I am asked by Mr Ian Shepherd to find that Sir Moi Avei did present the water pump and utter those words, to influence the voters gathered there. He submits Mr Onda’s evidence should be accepted because the First Respondent was vague and evasive in his answers on cross-examination and he did not dispel the evidence given by Mr Onda. I am referred to Dr. Poka Temu v Kilroy Genia, where Dr. Temu’s election was declared void because it was found on the evidence that he presented an ambulance to Inna Health Centre to influence some electors.

On the evidence, once again, I am unable to find that the First Respondent made the presentation and uttered the words referred to. Mr Onda’s evidence is denied by the First Respondent. I do accept that the First Respondent had trouble recollecting events and dates, but I saw no signs of arrogance, as the First Respondent gave his evidence as submitted by Mr Ian Shepherd. Mr Onda also appeared to exaggerate and dramatize his evidence a bit and appeared to be politically biased towards the Firsts Respondent. In my view, the lone evidence of the virtually unknown villager in Mr Onda does not even up with the weight of the First Respondent’s evidence, his character and his reputation. The evidence of Mr Onda alone lacks weight. Mr Onda’s evidence requires strong corroborative evidence. Mr Onda’s evidence is not corroborated by any other witness. In my view, it is unlikely that the First Respondent would go out delivering water pumps purchased by the provincial administration out of government funds to villages on the day before the polling where he had no support vote base. For these reasons, I am unable to make the findings requested by the Petitioner.

In conclusion, at the beginning of my judgment, I made reference to the numerical strength of witnesses for both parties, that is, two witnesses pitted against two witnesses, with each side strongly denying allegations against each other. One immediately thinks of things like the seriousness of the allegation of bribery, the definition of bribery as a criminal offence provided by the Criminal Code, the more onerous burden of proof carried by the petitioner, the high standard of proof, and the higher level of sufficiency of the evidence and the weight to be accorded to the evidence of witnesses, before a finding of bribery can be sustained as proven. And speaking of weight of the evidence, corroboration or supportive evidence from other witnesses is not a legal requirement but preferable and good rule of practice of evidence. Of course, the corroborative evidence need not come from external independent sources. It may come from the witnesses on the opposing sides against whom the allegations are levelled at. It only requires one clear proven lie from a witness to lend support to the opposing version of facts.

On the whole of the evidence on both allegations of bribery, I am not satisfied that the Petitioner has proven to the required standard, the first basic fact - of giving the property or benefit or making the promise by the First Respondent or Mr Igo Pautani. Once this first basic fact is not proved, it is unnecessary to consider the other elements of bribery and the other requirements of S.215 of the Organic Law.

For these reasons, I dismiss the petition. Costs follow the event.
_______________________________________________________________________

Lawyer for the Petitioner : Blake Dawson Waldron
Lawyer for the First Respondent : Maladina Lawyers
Lawyer for the Second Respondent : Nonggorr & Associates

National Court of Papua New Guinea

In the Matter of The Organic Law on National and Local-Level Government Elections, Aihi v Avei [2004] PGNC 250; N2523 (26 March 2004)