N5834

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 67 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE CENTRAL PROVINCE REGIONAL SEAT

BETWEEN

ALPHONSE MOROI
Petitioner

AND

KILA HAODA
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2014: 01st, 04th & 05th December

ELECTION PETITION – Trial – Allegations of bribery – Bribery by successful candidate – Giving of cash of K500.00 to voters – Proof of – Organic Law on National and Local-level Government Elections – s. 215 – Criminal Code – s 103.

Cases cited:

Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295
Neville Bourne v. Veoto [1977] PNGLR 298
Paru Aihi v. Moi Avei & Electoral Commission (2004) N2523
Bryan Kramer v. Nixon Philip Duban & Electoral Commission (No. 2) (2013) N5213
Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921

Counsel:

 Messrs R Diveni & P Wariniki, for Petitioner 
Mr H Leahy, for First Respondent
Mr L Okil, for Second Respondent

JUDGMENT

05th December, 2014

1.	MAKAIL, J: This petition began on 03rd September 2012. On 14th March 2013, the National Court upheld an objection to competency and dismissed the petition for being incompetent. On 27th March 2013, the petitioner Mr Alphonse Moroi sought leave to review that decision. Leave was not granted until 23rd April 2013 and the review was not heard until 27th March 2014, 11 months after leave was granted. 

2.	The decision was reserved until 09th September 2014 when the Supreme Court handed down its decision upholding the review, quashed the decision of the National Court, reinstated the proceeding and remitted it for re-trial on three specific allegations of bribery. The decision paved the way for the petitioner to prove at trial these three allegations. A re-trial was conducted on 01st December, final addresses were made on 04th December and decision was reserved until today. This is the decision.

Allegations of Bribery

3.	The allegations are specific. They are bribery and although there are seven in total, as per the Supreme Court decision, Mr Moroi as the petitioner relied on three of them to void the return of the first respondent The Honourable Kila Haoda as Governor of Central Province. He alleged that Mr Haoda bribed three voters to vote for him by giving cash of K500.00 to each of them at March Girls Beach Resort, Gaire on 12th May 2012. 

Law on Bribery

4.	Under s. 215 of the Organic Law on National and Local-level Government Elections ("Organic Law"), an election of a successful candidate can be declared void if the Court finds that the successful candidate committed bribery. In full, this provision states:

"215.	Voiding election for illegal practices.

(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."

5.	Bribery under s. 215 means one of the offences created by s. 103 of the Criminal Code. Section 103 states:

"103.	Bribery.

A person who —

(a)	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 —

(i)	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; or
(ii)	on account of any person acting or joining in a procession during an election; or

(iii)	in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b)	being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c)	asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d)	advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e)	corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f)	is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g)	being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

Penalty:	A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."

6.	In the recent Supreme Court case of Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295, the Court set out the elements of the offence under s, 103(a)(iii) of the Criminal Code as follows at para. 35:

"35. To prove an offence under Section 103(a)(iii) it must be proven that a person:

1	gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;

2	any property or benefit of any kind;

3	in order to induce any person to endeavour to procure the return of any person at an election or the vote of any elector at an election."

Standard of Proof

7.	According to decided cases, there has been much debate in relation to the burden of proof in a bribery case, some holding that the burden of proving bribery is according to the criminal standard of proof of beyond reasonable doubt while others holding that it is not and is something between the civil standard of proof of balance of probabilities and beyond reasonable doubt. 

8.	In this case, there is no dispute that I should apply the standard in between the two, that is, on a higher standard of proof but not beyond reasonable doubt or "to the entire satisfaction of the Court": Neville Bourne v. Veoto [1977] PNGLR 298; Paru Aihi V. Moi Avei & Electoral Commission (2004) N2523; Bryan Kramer v. Nixon Philip Duban & Electoral Commission (No. 2) (2013) N5213 and compare them with Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921. So Mr Moroi has that burden to discharge. 

Proof of Bribery

9.	Mr Moroi called the three persons who were allegedly bribed by Mr Haoda to give evidence to prove the allegations. They were Allan Kovei Kori, Amen Ambrose and Fabian Inne. They had sworn and filed affidavits which were tendered and marked as exhibits "P4", "P5" and "P6" respectively. 

10.	Mr Haoda denied the allegations and called four witnesses who testify for him and he also gave evidence. Their evidence were in affidavits and tendered as exhibits "D1", "D2", "D4", "D5" and "D6". The Electoral Commission called one witness the Election Manager for Central Province, Mr Kila Egaba. His affidavit was tendered without any objection and marked exhibit "D7" and he was not cross-examined by Mr Moroi's counsel.

11.	There is no dispute that the second element of the offence of bribery being the property was cash of K500.00. Given this, Mr Moroi bears the onus to prove that Mr Haoda gave K500.00 each to Mr Kori, Mr Ambrose and Mr Inne and secondly that the money was to induce them to procure his return as Governor or vote for him. 

12.	The evidence of Mr Kori, Mr Ambrose and Mr Inne attempted to establish that Mr Haoda was the person who gave each of them cash of K500.00 at March Girls Beach Resort ("March Girls") on 12th May 2012 and he told them to go and campaign for him, vote for him and for everyone to vote for him.

13.	They did not say how they got to March Girls. Mr Ambrose did not say why he went there. Mr Kori said he and Mr Inne as candidates for Central Provincial Seat and Mr Ambrose as candidate for Goilala Open seat were invited by Mr Haoda to visit his residence at March Girls at Gaire. Similarly, Mr Inne said Mr Joe Tamatai and Mr Kori as candidates for Central Provincial seat and he as candidate for Goilala Open seat were invited by Mr Haoda to visit his residence at March Girls at Gaire. But they all said that they met Mr Haoda.

14.	The reason for meeting Mr Haoda and the details of the discussions at the meeting varied amongst them. Mr Kori said Mr Haoda spoke to them about his political plan and identified weakness in the current Provincial Government under the leadership of Mr Moroi. Mr Ambrose said nothing and Mr Inne said Mr Haoda talked about his political plans and told everyone at the meeting to support and vote for him for the 2012 National General Election. 

15.	None of them stated in their evidence in chief the "Operation Rausim Moroi" petition. This petition was tendered as exhibit "D3" in support of the defence case. None of them also said in their evidence in chief that they were aware of the petition. Indeed, their evidence in chief based on their affidavits is insufficient or lacked particulars in relation to what happened at the meeting and particularly, how Mr Haoda gave the money to them. 

16.	It should be stated here that much of the evidence as to what occurred at the meeting was revealed by these witnesses during re-examination by their counsel and this is critical to how Mr Moroi ran his case. In my view, in order to set the foundation of the case that Mr Haoda bribed these witnesses, Mr Moroi must lead evidence to set the foundation of his allegation; evidence as to how Mr Haoda gave them the money and this must be done in evidence in chief. 

17.	If it is not done and it is sought to be led in re-examination, it loses its probative value because it would be considered as an attempt to manufacture evidence to fix serious gaps in the petitioner's case. Not only that, but it is a complete departure from the pleadings in the petition which alleged that at the meeting, it was Mr Haoda who gave K500.00 to each of them and there was no mention of Mr Kipa Maleva being present with Mr Haoda and giving the money to them. 

18.	Evidence of the latter proposition may be rejected because it has no foundation in the pleadings or if considered, it will be of less weight because it may be a recent invention. The consequential effect of all these is that it renders the evidence less credible to believe.

19.	It was in re-examination that each witness said that Mr Maleva and Mr Haoda were standing in front of the room where they and others were seated and Mr Maleva called their names one by one. Each went up to the front and shook hands with Mr Haoda. Mr Haoda took out the money in a bundle of K50.00 notes, counted them and gave to Mr Maleva. Each recipient shook Mr Maleva's hands and Mr Maleva gave the money to him. This evidence was missing in the evidence in chief but surfaced at re-examination. 

20.	In my view, this is a fatal omission. If Mr Moroi's case is based on Mr Haoda bribing these three witnesses by giving each of them K500.00, as I observed and I repeat here, evidence should have been led in evidence in chief to set the scene before the evidence of Mr Haoda giving the money. How did the cash distribution take place? Was it simply handed to the witnesses? Laying the foundation for the cash distribution is the critical part of the case and why did they not give this evidence in evidence in chief. In my view, the failure to lead this evidence in evidence in chief and then bring it up at re-examination casts doubt as to the credibility of these witnesses' evidence.

21.	The other aspect to that is this, Mr Moroi ran his case on the premise that if the Court were to find that Mr Haoda was not the person who bribed these witnesses, then it was done with his knowledge and authority. That Mr Maleva gave the money with his knowledge and authority and he is bound by it. Again this proposition is a complete departure from the pleadings in the petition where the allegations of bribery were made against Mr Haoda in person and not through a third party. What this means is that the proposition must be rejected because there is no foundation in the pleadings to support it and on which evidence can be led. If considered, less weight should be given to it because it would amount to a recent invention and the result is, the evidence of these witnesses is less credible and reliable.

22	The other consideration is that, when the Court is assessing the evidence of witnesses in order to make a decision as to which party's witnesses' evidence should be accepted and making appropriate findings of fact, the evidence must make sense. It must be consistent with logic and common sense in order for it to be believable. 

23.	In this instance, when it was suggested to the witnesses by Mr Haoda's counsel during cross-examination that one of the reasons for holding the meeting at March Girls was for the presentation of the petition, they denied it. They said that they had no knowledge of the petition and that it was going to be presented at the meeting. They said that it was Mr Haoda who invited them. It seems to me that they had no idea why they went to the meeting. Why would someone accept an invitation and yet not know the reason for the invitation? It does not make sense at all. To accept the evidence of Mr Kori, Mr Ambrose and Mr Inne that they were not aware of the reasons for the invitation, in my view, does not make sense and hard to believe. 

24.	Similarly, I find it hard to believe Mr Inne's evidence that Mr Haoda invited him. I say this because his name was mentioned in the petition as part of the group to welcome Mr Haoda and indeed one of the speakers at the proposed rallies and this was Kileai village. 

25.	He denied the suggestion when cross-examined that he was part of the team pushing for the rallies in Goilala but here was a case where the 2012 National General Election was just around the corner so to speak and people around the country were preparing for it, more so the intending candidates. The people of Goilala Electorate would have been no exception. 

26.	In my view, it would not be unreasonable to think that the petition and the proposed rallies at the suggested locations would have been public knowledge and significant events to be staged in that electorate such that, not only him but also Mr Kori and Mr Ambrose would have been aware. In my view, for him, Mr Kori and Mr Ambrose to deny that they were not aware of the petition and the proposed rallies is something I find it hard to believe. 

27.	But it is clear to me that the reason they met Mr Haoda was to do with the coming election. I have laboured to examine closely these witnesses evidence because their evidence is in stark contrast to the evidence of Mr Haoda and his witnesses. Mr Haoda and his witnesses Mr Maleva, Mr Camillo Paul Moroi, Mr Tony Kopa and Mr John Kopa is that Mr Haoda did not invite them but it was them and other candidates in the Goilala District who requested to meet with Mr Haoda.

28.	The evidence of Mr Camillo Moroi is crucial. He said that he is the younger brother of Mr Moroi. He was the Campaign Manager for an intending candidate for Goilala Open seat namely, Mr Peter Elisen in the 2012 National General Election. He was also the Chairman of a group formed by the Chiefs and elders of Goilala called "THE ANTI MOROI REGIME". He led the group to present a petition called "Operation Rausim Moroi" ("the petition") to Mr Haoda.

29.	In or about early May 2012, he requested Mr John Kopa, the Campaign Co-ordinator for Mr Haoda in Goilala to make arrangements for them to present the petition to Mr Haoda. Mr John Kopa made arrangements as requested and told him and others that a meeting would be held for them as well as all other intending candidates from Goilala who had placed the same request with Mr Haoda.

30.	On 12th May 2012, he presented the petition to Mr Haoda at March Girls on behalf of all the people of Goilala. Included in the petition was their formal request for Mr Haoda to attend two major political rallies in Kileai village, Ward 6 and Tolukuma Ward 4 of Woitape LLG in Goilala District. A copy of the petition which was tendered by consent and marked exhibit "D3" also independently corroborated his evidence in relation to the petition and proposed rallies.

31.	In addition to that, Mr John Kopa and Mr Tony Kopa also corroborated his evidence that they requested a meeting with Mr Haoda in order to present the petition to him. Mr John Kopa was the person who initiated the request and that request was made to Mr Maleva. Mr Maleva's evidence is also crucial here. His evidence in his affidavit (exhibit "D4") is very detailed. He was the Campaign Advisor and Co-Campaign Manager for Mr Haoda in the 2012 National General Election. He said that he accompanied Mr Haoda everywhere he campaigned. 

32.	He corroborated the evidence of Mr John Kopa and Mr Tony Kopa on a number of matters. First and foremost is that the request to meet Mr Haoda came from Mr John Kopa as Mr Haoda's Campaign Manager in Goilala including Mr Kori, Mr Ambrose, Mr Inne and others. This is further evident in the numerous text messages by mobile phone to him by these persons in the days leading up to the meeting. 

33.	Secondly, Mr Camilo Moroi also called him and informed him that he had arranged with other intending candidates and supporters from Goilala that they would like a joint meeting at March Girls. Their proposed agenda was presentation of the Operation Rausin Moroi petition, request for funding assistance and campaign strategy. Thirdly, because of the request, he confirmed and provided the venue and transportation because they had none.

34.	Fourthly, at the meeting twelve people introduced themselves as intending candidates for Goilala Open seat and two as intending candidates for Central Provincial seat. Mr Kori introduced himself as intending candidate for Central Provincial seat, Mr Ambrose, Mr Inne and Mr Elisen introduced themselves as intending candidates for Goilala Open seat.

35.	The fifth matter is that Camillo Moroi introduced himself as Chairman of "Operation Rausim Moroi" petition. Mr Moroi explained to the attendants that "Operation Rausim Moroi" was a strategy to remove Mr Moroi because he brought suffering to Goilala during his 10 years reign as Governor of Central Province. He therefore was looking for a serious candidate to contest against Mr Moroi. Mr Camillo Moroi presented the petition and spoke on it. His aim was to hold a rally for Mr Haoda at Tolukuma. He therefore enlisted intending candidates to support him bring Mr Moroi down and advised that those in attendance were enlisted to support the petition.

36.	Mr Camillo Moroi presented the petition to Mr Maleva and he received it. Everyone clapped and the twelve intending candidates who eventually contested the elections took turns and spoke in support of the petition and declared to bring Mr Moroi down. They also spoke in support of Mr Haoda as the most suitable and likely candidate to defeat Mr Moroi. They also expressed need for financial assistance for their campaign and payment of nomination fees.

37.	The sixth matter is that Mr Kori told the meeting that he supported the petition and Mr Haoda as an intending candidate for Central Provincial seat. His intention to stand in the elections was not to win the election, but specifically to bring Mr Moroi down. He therefore would only campaign in Goilala District which is Mr Moroi's strong hold and nowhere else. He said that he wanted assistance in cash and kind, especially payment of nomination fee of K1,000.00.

38.	Mr Ambrose, Mr Inne, Mr Elisen and others also spoke in support of the petition. Mr Elisen broke down and wept openly as he spoke in support of the petition. He supported Mr Haoda and also asked for financial assistance from Mr Haoda. 

39.	Lastly, after the meeting Mr Tony Kopa, Mr Kori, Mr Inne, Mr Elisen and five others approached Mr Maleva and asked for financial assistance to pay their nomination fees. Each asked for K1,000.00. He approached Mr Haoda with the request but was declined. He was approached again by Mr Kori and if he did not pay, they would withdraw their support. Under pressure, he gave Mr Kori, Mr Ambrose, Mr Inne and Mr Tony Kopa K500.00 each. He did so without Mr Haoda's authority and from his own funds. 

40.	I now turn to the petition. It is a rally program for 2012 for candidates for Central Provincial and Goilala Open seats to be staged at Kileai village in Goilala District. It does state the date for the rally but lists names of candidates, the notable one being Mr Haoda for the Central Provincial seat. It also lists the names of the Organising Committee, the notable one being Mr Camillo Moroi and a list of activities. There will be speakers at the meeting and amongst them were Mr Haoda and Mr Inne. But the significant part is the reasons for the rally. Some of the reasons are restated below:

(i)	All our schools in the District are rundown

(ii)	Public Servants houses in Woitape, Tapini and Guari are all rundown.

(iii)	All our Aid posts in the District are rundown.

(iv)	Mr Moroi committed K200,000.00 for U-Haits Coffee Project but never gave the money to the project site.

(v)	Mr Moroi committed K200,000.00 to Kolili Co-operative Society but never gave the money.

(vi)	The Youths surrendered the arms to Governor Moroi at Woitape on 04/10/2002 and he committed K80,000.00 and never gave the youth the money which he committed.

(vii)	Mr Moroi told lies to the Woitape people to put a coffee mill.

41.	This evidence has not been refuted by Mr Moroi because he was not called. Neither did the witnesses called refuted it. It is uncontested and corroborates the evidence of Mr John Kopa, Mr Camillo Moroi and Mr Tony Kopa. The strategy in the document was clear. Goilala Open candidates would align themselves with Mr Moroi's rival who the petition nominated as Mr Haoda and break up Mr Moroi's strongholds in Goilala electorate. 

42.	Finally one other rule of evidence I wish to apply here is my assessment of the demeanour of the witnesses. Demeanour wise, Mr Kori and Mr Inne did not impress me. Mr Kori spoke softly when responding to Mr Haoda's counsel's questions during cross-examination. I am not sure if he was shy or intimidated by the presence of visitors in the Court room or if he was a soft spoken person. There were times, at least, two occasions I recall he paused for a long time to answer the questions put to him. These were simple and straight forward questions one of them, was in relation to whether he had asked Mr Haoda for financial assistance. 

43.	This was an important case. It was an election petition challenging the election of Mr Haoda as Governor of Central Province and at the very least the witnesses who come to testify against him must give the Court some confidence that the Court would not be making a wrong decision if it were to accept their evidence. So far, Mr Kori has not given me that confidence. I hold the same view for Mr Inne.

44.	As for Mr Ambrose, he was a confident witness. I could clearly hear his answers to questions during cross-examination by Mr Haoda's counsel. When it was suggested to him that the purpose for him to attend the meeting at March Girls was firstly to present the petition and secondly to seek financial assistance, he out rightly denied any knowledge of these matters. But the confidence and ability to defend his evidence is only one aspect of the assessment of the evidence.

45.	As for Mr Haoda and his witnesses, they were impressive. They spoke with confidence and answered questions confidently during cross-examination. They were firm in their answers to questions asked in cross-examination. Mr Maleva elaborated that after the meeting had ended, Mr Haoda retreated to the sea side wing of the resort when the Goilala group approached Mr Maleva and asked for financial assistance. He went on to say that he used his own money to give them. He spent K2,500.00 on five of them.

46.	Mr Haoda's credibility remained intact. It was not destroyed during cross-examination because he maintained that he never gave money to Mr Kori, Mr Ambrose and Mr Inne and was not aware that Mr Maleva had given them money. 

Findings of Fact

47.	In summing up the evidence, and as mindful as I am of the requirement to observe real justice under s. 217 of the Organic Law and having considered the evidence for and in defence of the allegations, I find the evidence of Mr Moroi's three witnesses far-fetched. On the other hand, I find the evidence of Mr Haoda and his witnesses consistent, logical and credible. 

48.	I find that the latter's evidence established a case where people in the Goilala Open Electorate have been frustrated by lack of essential Government services and support from Mr Moroi as the then Governor and as someone from there, having being the Governor since 2002. Simply put, they have missed out on a lot of development and when 2012 National General Election came round, they decided it was time to change Mr Moroi. The people rose up and made a pact led by their leaders such as Mr Moroi's own blood brother Mr Camillo Moroi to dethrone Mr Moroi and replace him with a new leader who can deliver for them. 

49.	A petition was prepared to secure more support from others in Central Province. The next and likely replacement and strong contender for the Governor's post was Mr Haoda and the petition was taken to him to solicit his support. A meeting was necessary to formally acknowledge the pact and change in the leadership in Central Province and it came to pass in the meeting at March Girls on 12th May 2012. 

50.	One of the strategies to unseat Mr Moroi was to put up candidates from Goilala Open Electorate to contest the same seat in order to split votes or divide the voters so that Mr Moroi received lesser votes from that electorate. At that meeting, intending candidates for the Central Provincial seat and Goilala Open seat sought funding for their campaigns and to pay their nomination fees. These were their requests and they were honoured. The end result, one may say the strategy worked; the leadership has changed. Mr Haoda was elected, replacing Mr Moroi. 

 51.	The end result, I find the evidence fell short of establishing that Mr Hadao gave K500.00 to Mr Kori, Mr Ambrose and Mr Inne with the intention to induce them to vote for him. I further find that the money was given by Mr Maleva as financial assistance towards meeting their campaign strategy and nomination fees. Even if I were to find that Mr Maleva gave the money with the knowledge and authority of Mr Haoda, I am not satisfied that it was to induce these witnesses to vote for Mr Haoda as I find that it was given to assist them in campaigning and paying their nomination fees. The final result, Mr Moroi has not proven to the required standard of proof, acts of bribery as alleged, and I dismiss the petition.

52.	One more matter to mention before I close and that is counsel for the Electoral Commission relying on the affidavit of Mr Egaba has submitted that the petition should be dismissed because the alleged acts of bribery occurred prior to the date of issue of writs and nomination. Counsel has extensively covered this issue in his submission for which I am grateful but given the finding of the Court, I consider it not necessary to consider it. 

Order

53.	The orders are:

1.	The petition is dismissed.

2.	The petitioner shall pay the costs of the proceedings, to be taxed if not agreed.

3.	The security deposit of K5,000.00 held by the Registrar shall be released and divided equally between the respondents. 
______________________________________________________________

Wariniki Lawyers:	 Lawyers for the Petitioner
Herman Leahy Lawyers:	 Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent