Singirok v Fairweather [2014] PGNC 53; N5577 (24 April 2014)

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IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND IN THE MATTER OF A DISPUTED RETURN FOR THE
SUMKAR OPEN ELECTORATE

ELECTIONS – petitions – grounds of "undue influence" and "bribery": Organic Law on National and Local-level Government Elections, Section 215 – elements of offences of undue influence (Criminal Code, Section 102) and bribery (Criminal Code, Section 103) – meaning of "candidate" in Section 215 – whether necessary for a person to have nominated as a candidate at the time of commission of the offence.

The petitioner challenged the return of the first respondent as sitting member on the grounds of undue influence and bribery under Section 215 of the Organic Law on National and Local-level Government Elections. It was alleged that the first respondent or other persons with his knowledge and authority committed undue influence and bribery on five different occasions. The petitioner alleged commission of undue influence offences under Section 102(b) of the Criminal Code and bribery offences under Sections 103(a)(iii) and 103(d) of the Criminal Code.

Allan Ebu v Roy Aua Evara [1983] PNGLR 201
Benny Diau v Mathew Gubag (2004) SC775
Bryan Kramer v Nixon Philip Duban (2013) N5213
Jim Nomane v Wera Mori (2013) SC1242
Ken Fairweather v Jerry Singirok (2013) SC1293
Peter Isoaimo v Paru Aihi (2012) N4921
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Robert Kopaol v Philemon Embel (2003) SC727
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

This was the trial of an election petition disputing the validity of an election.

B W Meten, for the petitioner
G J Sheppard, for the first respondent
A Kongri, for the second and third respondents

1. CANNINGS J: The petitioner Jerry Singirok disputes the election of the first respondent Ken Fairweather as member for Sumkar Open in the 2012 general election. Mr Fairweather won the election with 9,624 votes. The petitioner was runner-up with 7,004 votes.

2. The petitioner relies on five grounds of undue influence and bribery under Section 215 of the Organic Law on National and Local-level Government Elections. There were originally seven grounds in the petition but one was struck out at an earlier hearing and another withdrawn. This is the trial of the remaining five grounds, the original numbering of which has been preserved. No errors or omissions are alleged to have been committed by the Electoral Commission.

3. Ground 1 consists of two sub-grounds relating to the same incident, while the other four are stand-alone grounds:

4. It is useful to categorise the grounds according to whether the alleged act of undue influence and bribery at the centre of each ground was committed by the successful candidate, Mr Fairweather, or by some other person with his knowledge or authority. Thus:

5. Under Section 215 of the Organic Law "undue influence" and "bribery" are grounds on which a successful candidate's election can be declared void. Section 215 (voiding election for illegal practices) states:

(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.

6. The Supreme Court in Ken Fairweather v Jerry Singirok (2013) SC1293 explained that Section 215 provides for six scenarios in which the election of a successful candidate can be declared void:

Scenario A is the scenario that is alleged in grounds 1(b), 4 and 5 of the petition. Scenario B is the scenario that is alleged in grounds 1(a), 2 and 7.

7. It is settled law that "undue influence" and "bribery" in Section 215 mean one of the offences of undue influence or bribery created by Sections 102 or 103 of the Criminal Code respectively. The petitioner has the burden of proving beyond reasonable doubt that one of those offences was committed or attempted to be committed by the successful candidate or by another person (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, Sir Arnold Amet v Peter Charles Yama (2010) SC1064).

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

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

9. The petitioner argues that the first respondent or other persons with his knowledge and authority committed undue influence under Sections 102(b) of the Criminal Code.

10. To sustain an offence under Section 102(b) the petitioner must prove that the first respondent or another person (with his knowledge and authority):

(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,

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

12. The petitioner argues that the first respondent or other persons with his knowledge and authority committed bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code.

13. To sustain an offence under Section 103(a)(iii) the petitioner must prove that the first respondent or another person (with his knowledge and authority):

14. To sustain an offence under Section 103(d) the petitioner must prove that the first respondent or another person (with his knowledge and authority):

15. In addition to proving that an offence of undue influence or bribery was committed or attempted to be committed, the petitioner must prove that at the time of committing or attempting to commit the offence the successful candidate was indeed a candidate. An offence committed or attempted to be committed prior to the time at which the successful candidate became a candidate can be the subject of a prosecution under the Criminal Code but it will not give rise to a ground on which under Section 215 of the Organic Law the successful candidate's election can be declared void. This is a critical point of law highlighted by Mr Kongri for the second and third respondents, who drew the Court's attention to the National Court decision in support of it by Bredmeyer J in Allan Ebu v Roy Aua Evara [1983] PNGLR 201.

16. In that case it was alleged that Mr Evara, the successful candidate for the Kikori Open seat at the 1982 general election, had committed two undue influence offences (threatening to close a road and take villagers to court if they did not vote for him) in December 1981 in the course of early campaigning. The petitioner, Mr Ebu, argued that Mr Evara had committed the offences at a time that he was a "candidate" as he had announced his intention to stand for election and he was campaigning. Bredmeyer J rejected the argument, holding that Mr Evara did not become a candidate within the meaning of that term in Section 215 of the Organic Law until he "has duly nominated in the correct manner". In reaching that conclusion his Honour noted that there was a definition of "candidate" in the interpretation section of the Organic Law, which stated:

"Candidate" in Parts II and XVII includes a person who within three months before the first day of the polling period announces himself as a candidate for election as a member of Parliament.

17. His Honour found, however, that that definition was not helpful as it only applied to Part II (administration) and Part XVII (offences), whereas Section 215 is in Part XVIII (disputed elections, returns etc). His Honour proceeded:

To determine what the word candidate means in s 215 I ask: What does it mean generally in the Organic Law? ... I consider the word candidate when used generally in the Organic Law means a person who has duly nominated in the correct manner ... He is required to submit a written nomination on a prescribed form (form 1) giving certain particulars of himself. ... The form and manner of nomination is prescribed by law. When a person has nominated in that way he is a candidate, and prior to that he is simply an intending or prospective candidate.

18. His Honour concluded that Mr Evara did not become a candidate until 5 March 1982, so whatever words he uttered in December 1981 "and whether they amounted to undue influence or not, I cannot avoid the election because he was not a candidate within the meaning of s 215".

19. Bredmeyer J's judgment was delivered in 1983. It was based on the original Organic Law, which was repealed and replaced by the current Organic Law in 1997. However the provisions of the original Organic Law that his Honour was interpreting and applying are replicated in the current Organic Law. His Honour's reasoning remains pertinent. It has never been overruled by the Supreme Court. In fact the only reference to it appears to have been in the recent decision in Jim Nomane v Wera Mori (2013) SC1242 (Kandakasi J, Cannings J, Collier J), which did not, however, involve a detailed examination of it.

20. With the benefit of Mr Kongri's submissions, I am convinced that Bredmeyer J's reasoning is correct: for an offence of undue influence or bribery to give rise to a ground for declaring the successful candidate's election void under Section 215 the successful candidate must have been a duly nominated candidate at the time the offence was committed or attempted to be committed.

21. Mr Meten for the petitioner submitted that such an interpretation is too restrictive and overlooks the definition of candidate in Section 3 (which remains in the same terms as the definition considered by Bredmeyer J). He refers to the National Court decision of Gavara-Nanu J in Bryan Kramer v Nixon Philip Duban (2013) N5213 in which his Honour, during the course of hearing an objection (on a number of grounds) to the competency of the petition, considered an argument by the respondents that the successful candidate, Mr Duban, was not a candidate at the relevant time. It is useful to look at the facts of this case, which show how the meaning of "candidate" can become a critical issue. The key dates were:

22. Gavara-Nanu J applied the definition of "candidate" in Section 3 and found on the facts that Mr Duban had announced himself as a candidate within the period of three months before the first day of the polling period (ie on or after 23 March 2012). Therefore he was a candidate on 20 April 2012 even though he had not formally nominated by that date. He was a candidate at the time he allegedly committed bribery and his election could be declared void under Section 215. His Honour proceeded to dismiss the ground of objection to competency of the petition that relied on the argument that Mr Duban was not a candidate at the relevant time.

23. It appears, however, that neither Bredmeyer J's judgment in Ebu v Evara nor the limited application of the definition of candidate in Section 3, were brought to his Honour's attention. I tend to think that if those matters had been highlighted a different conclusion might have been reached. Whatever the case I am respectfully unable to agree with the approach his Honour took to this issue in Kramer v Duban. I find compelling the approach taken by Bredmeyer J in Ebu v Evara, and that is the approach that I will take in this case. The petition will only succeed if the petitioner can prove:

24. I will now address each ground of the petition in turn. I will first explain the allegation underlying the ground, then set out the evidence for the petitioner and for the first respondent. No evidence was presented by the second and third respondents. Witnesses have been given numbers according to the order in which they gave evidence, eg witness No P1 refers to the first witness for the petitioner, Rudolf Raward. I will weigh the evidence and make findings of fact before determining whether at the relevant time the first respondent was a candidate and whether it has been proven that an offence of undue influence or bribery has been committed or attempted.

GROUND 1(A): UNDUE INFLUENCE AND BRIBERY COMMITTED BY ANOTHER PERSON WITH MR FAIRWEATHER'S KNOWLEDGE AND AUTHORITY: K15,000.00 AT MATUGAR ON 21 MAY

25. On 21 May at Matugar village, Sumgilbar LLG area, Mr Fairweather's officer, Martin Hanibal, committed undue influence under Section 102(b) of the Criminal Code and bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code by:

presenting a Sumkar District Treasury cheque for K15,000.00 to Saleo Sili, Chairman of the Matugar Fishing Group, with the intention of influencing, soliciting and inducing votes from the electors of Matugar village;

all of which was done with the knowledge and authority of Mr Fairweather, a candidate in the 2012 general election, who was present and made a short speech encouraging those present to vote for him, which would lead to him giving more money to the fishing group, thereby constituting a ground on which the election of Mr Fairweather should be declared void pursuant to Section 215(3) of the Organic Law.

26. Three witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

P1	Rudolf Raward	Candidate, Sumkar Open, 2012, Matugar village
Evidence: On 21 May he was present when the cheque for K15,000.00 for Matugar Fishing Group was presented to Mr Saleo Sili by Martin Hanibal – first respondent was present and made the following speech "Mi papa bilong yupla. Lukim! Mi givim yupela K15,000.00 na yupela olgeta mas givim mi wan na taim mi win, bai mi givim yupela moa money bilong grup bilong yupela. Em stret ah?" ("I am your father. See! I am giving you K15,000.00 and you all must give me one and when I win, I will give you more money for your group. That's right, ah?") – he has no doubt that the presentation of cheque and words spoken were done to influence, solicit and induce votes from the villagers of Matugar – he believes the presentation of the cheque was a bribe to win votes.
P2	Alois Saleo Sili	Chairman, Matugar Fishing Group
Evidence: On 21 May he was presented the cheque for K15,000.00 for Matugar Fishing Group – he received the cheque as chairman of the fishing group – cheque was presented to him by Martin Hanibal – first respondent was present and made the statement referred to in the evidence of R Raward – he has no doubt that the presentation of cheque and words spoken were done to influence, solicit and induce votes from the villagers of Matugar – he believes the presentation of the cheque was a bribe to win votes. In cross-examination he agreed that the fishing group had applied for this grant but the application was made a considerable time before the funds were made available – the cheque was deposited into the account of the fishing group – the funds were applied for proper purposes – however, he regarded it as a bribe because the funds were provided "at the wrong time" (in the lead-up to the election).
P3	Michole Sangmie Barui	Community leader, Matugar village
Evidence: On 21 May he was present when the cheque for K15,000.00 for Matugar Fishing Group was presented to Mr Saleo Sili by Martin Hanibal – first respondent was present and made the statement referred to in the evidence of R Raward – he has no doubt that the presentation of cheque and words spoken were done to influence, solicit and induce votes from the villagers of Matugar – he believes the presentation of the cheque was a bribe to win votes.

27. Three witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

R1	Martin Hanibal		Executive Officer to first respondent
Evidence: He has been Mr Fairweather's EO since 2008 – on 1 April Mr Fairweather instructed him to pay out all rollover funds from DSG, DSIP and NADP and pay contractors, suppliers and groups by the time writs for elections are issued – the payments took longer than expected as the District Treasury office is at Kinim, a long way from Madang town, and quotes took almost a week to obtain and signatures had to be obtained from both locations which took time so the District Treasury released several batches of cheques in May and these were paid in May and June 2012 – cheque No 1646 dated 11/05/12 for K15,000.00 was for Matugar Fisheries Group – approval for this 'grant assistance' was given by the Sumkar JDPBPC at a special meeting in Madang on 27 April – he went to Matugar with Mr Fairweather and presented the cheque – Mr Fairweather said he was not going to campaign at Matugar as he was aware that there was a candidate from that village and he respected that candidate – he was on his way to Karkar Island to campaign.
R2	Bruce Bunam		Committee member for first respondent, of Aronis village
Evidence: Has been a committee member of first respondent since 2008 – he looks after Sum area of Sumgilbar LLG – Matukar is in Sum area – on Monday 21 May 2012, he accompanied first respondent to Matukar village – he witnessed Martin Hanibal, EO to first respondent present K15,000.00 cheque to Michael Barui, Chairman of Matukar Fisheries Group – the first respondent said he respected the other candidates and made it his policy not to campaign in their villages – meeting took place at beachfront opposite Saki Association office, not in the centre of village.
R11		Ken Fairweather	First respondent
Evidence: He was present and observed the presentation of the cheque to the chairman of the fishing group – he did not go to Matugar as part of his campaign as he gets no votes there and they had their own candidate – he denies making the statement attributed to him by the petitioner's witnesses, he only said that 'the people from Karkar think I am their father and they will vote for me' – on the date of his visit to Matugar (21 May) he had not nominated – he did not nominate until 23 May.

28. Mr Fairweather's executive officer Martin Hanibal visited Matugar on 21 May and presented a cheque for K15,000.00 to the Matugar Fishing Group. The funds were drawn from the District Treasury out of public funds allocated to the Sumkar Open electorate. The decision to allocate the funds to the Fishing Group was made by the Sumkar Joint District Planning and Budget Priorities Committee (JDPBPC).

29. Mr Fairweather was present and observed the presentation of the cheque. I accept his evidence that he did not make a campaign speech and did not campaign at Matugar. I accept that he made a brief comment to the effect that the people of Karkar island regard him as their father and that they would vote for him. I reject the evidence that he made the statement attributed to him by the petitioner's witnesses.

30. As to Mr Fairweather's status as a candidate I find that he did not nominate until 23 May. He had well before that date announced his intention to again stand for election. It was well known in the electorate that he would nominate. He began campaigning well before 23 May, so that on the day of his visit to Matugar, 21 May, it can safely be said that his campaign had already commenced.

Was Mr Fairweather a candidate, for the purpose of Section 215 of the Organic Law, on 21 May?

31. Mr Meten submitted that he was, due to the extended meaning of the term "candidate" in Section 3 of the Organic Law, which states:

"Candidate" in Parts II and XVII includes a person who, within three months before the first day of the polling period, announces himself as a candidate for election as a member of Parliament.

32. The first day of the polling period was 23 June. Three months before that is 23 March. It is accepted that Mr Fairweather had announced by then that he intended to nominate for the election. Therefore, Mr Meten submits, consistent with the reasoning of Gavara-Nanu J in Bryan Kramer v Nixon Philip Duban (2013) N5213, Mr Fairweather became a candidate on 23 March. Mr Meten also submits that by referring to provisions of the Organic Law relating to nomination such as Section 85, it can be inferred that the word "candidate" refers to a person who has not yet completed his nomination.

33. I reject Mr Meten's submissions. As explained earlier when discussing the importance of determining whether at the time the offence was allegedly committed or attempted the successful candidate was actually a candidate, I prefer and will apply the reasoning of Bredmeyer J in Allan Ebu v Roy Aua Evara [1983] PNGLR 201. The critical date is the date on which Mr Fairweather nominated, which I have determined to be 23 May. That is two days after the events at Matugar.

34. This means that even if the petitioner is able to prove beyond reasonable doubt that Mr Hanibal committed an offence of undue influence or bribery with the knowledge or authority of Mr Fairweather, this will be of no consequence for the purpose of Section 215 of the Organic Law. However, as there has been evidence and argument on the questions of whether any offences were committed, I will now determine those questions.

Did Mr Hanibal commit an offence of undue influence under Section 102(b) of the Criminal Code?

35. No. There is no evidence that Mr Hanibal 'prevented or obstructed the free exercise of the franchise by any elector or compelled or induced any elector to vote at the election' (that being one of the elements of the offence) or if he did such things that he did so 'by force or fraud' (the other element).

Did Mr Hanibal commit an offence of bribery under Section 103(a)(iii) of the Criminal Code?

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

37. The first two elements are established in that Mr Hanibal (1) conferred on the fishing group (2) benefits (in the form of a cheque for K15,000.00). However, the conferral of a benefit on the members of the fishing group was a legitimate application of public money in accordance with a meeting of the Sumkar JDPBPC. The funds were of legitimate and known origin. I reject Mr Meten's submission that criminal intent can be inferred from the following facts and propositions:

38. There was no evidence to show that the timing of the JDPBPC meeting was unlawful. The fact that one person who was a member of the Committee was absent does not mean that the meeting could not go ahead or that it was unlawful to proceed. A quorum was clearly constituted by those members who were present. I am far from convinced that there was any element of illegality or impropriety pertaining to the distribution of the money.

39. The funds were not distributed at a campaign event. This was not a case of 'vote buying'. The funds were not given to individual electors but to a community group. There was no criminal intent. No offence under Section 103(a)(iii) has been proven to have been committed or attempted.

Did Mr Hanibal commit an offence of bribery under Section 103(d) of the Criminal Code?

41. The first element has been established in that Mr Hanibal paid money (in the form of a cheque for K15,000.00) to members of the fishing group. The second element is not established as Mr Hanibal was engaged in the legitimate task of distribution of public money in accordance with conventional and proper procedures. There was an absence of criminal intent.

42. This ground fails for two reasons. First the alleged offences, even if proven, were committed at a time that Mr Fairweather was not a candidate. Secondly, no offences were committed by Mr Hanibal.

GROUND 1(B): UNDUE INFLUENCE AND BRIBERY COMMITTED BY MR FAIRWEATHER: K15,000.00 AT MATUGAR ON 21 MAY

43. On 21 May at Matugar village, Sumgilbar LLG area, Mr Fairweather committed undue influence under Section 102(b) of the Criminal Code and bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code by:

during presentation by his executive officer Mr Hanibal of a cheque for K15,000.00 to Matugar Fishing Group, at a time he was a candidate in the 2012 general election, making the following statement: Mi papa bilong yupla. Lukim! Mi givim yupela K15,000.00 na yupela olgeta mas givim mi wan na taim mi win, bai mi givim yupela moa money bilong grup bilong yupela. Em stret ah? [I am your father. See! I am giving you K15,000.00 and you all must give me one and when I win, I will give you more money for your group. That's right, ah?]

thereby constituting a ground on which the election of Mr Fairweather should be declared void pursuant to Section 215(1) of the Organic Law.

44. The evidence in relation to ground 1(b) is the same as that in relation to ground 1(a).

45. I refer to the findings of fact made for the purposes of ground 1(a): Mr Fairweather's executive officer Martin Hanibal visited Matugar on 21 May and presented a cheque for K15,000.00 to the Matugar Fishing Group. The funds were drawn from the District Treasury out of public funds allocated to the Sumkar Open electorate. The decision to allocate the funds to the Fishing Group was made by the Sumkar Joint District Planning and Budget Priorities Committee (JDPBPC). Mr Fairweather was present and observed the presentation of the cheque. I accept his evidence that he did not make a campaign speech. I accept that he made a brief comment to the effect that the people of Karkar Island regard him as their father and that they would vote for him. I reject the evidence that he made the statement attributed to him by the petitioner's witnesses.

46. No. As determined above, he did not become a candidate until the date he nominated, 23 May, two days after the events at Matugar. Even if the petitioner were able to prove that Mr Fairweather committed an offence of undue influence or bribery, this will be of no consequence for the purpose of Section 215 of the Organic Law. However, as there was argument on the questions of whether any offences were committed, I will now determine those questions.

Did Mr Fairweather commit an offence of undue influence under Section 102(b) of the Criminal Code?

47. No. There is no evidence that he 'prevented or obstructed the free exercise of the franchise by any elector or compelled or induced any elector to vote at the election' (that being one of the elements of the offence) or if he did such things that he did so 'by force or fraud' (the other element).

Did Mr Fairweather commit an offence of bribery under Section 103(a)(iii) of the Criminal Code?

48. No. Though by virtue of his being Chairman of the JDPBPC, Mr Fairweather could be said to have "procured" benefits for the fishing group (thus satisfying the first two elements of the offence) this was not done in order to induce, in any criminal or otherwise improper way, any person to endeavour to procure his return at the election or the vote of any elector at the election.

49. I uphold Mr Sheppard's submission that it is a legitimate function of a member of Parliament to do things favourable to his constituents for the purpose of procuring his return at an election, ie to ensure that goods and services are made available to the electorate. Proof of something quite different is required to prove that an MP has committed a criminal offence.

50. The conferral of a benefit on the members of the fishing group was a legitimate application of public money in accordance with a meeting of the Sumkar JDPBPC. The funds were of legitimate and known origin. The funds were not distributed at a campaign event. This was not a case of 'vote buying'. The funds were not given to individual electors but to a community group. There was no criminal intent. No offence under Section 103(a)(iii) has been proven.

Did Mr Fairweather commit an offence of bribery under Section 103(d) of the Criminal Code?

51. No. Though it might be said that Mr Fairweather "advanced" money to the use of members of the fishing group, this was not done with any criminal intent. Public money was being distributed in accordance with conventional and proper procedures.

52. This ground fails for two reasons. First the alleged offences, even if proven, were committed at a time that Mr Fairweather was not a candidate. Secondly, no offences were committed by Mr Fairweather.

GROUND 2: UNDUE INFLUENCE AND BRIBERY COMMITTED BY ANOTHER PERSON WITH MR FAIRWEATHER'S KNOWLEDGE AND AUTHORITY: 5,000-LITRE WATER TANK AND FOUR BAGS OF CEMENT AT DID ON 24 MAY

53. On 24 May at Did village, Karkar Island, a member of Mr Fairweather's staff, Napolian Funamari, committed undue influence under Section 102(b) of the Criminal Code and bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code by:

presenting a 5,000-litre water tank and four bags of cement (which were expected by the villagers well before the issue of the writ for the election) to Kak Dagui, community leader, and telling Mr Dagui and other electors at Did that the goods were from Mr Fairweather, with the intention of inducing those electors to vote for Mr Fairweather at the election;

all of which was done with the knowledge and authority of Mr Fairweather, a candidate in the 2012 general election, who was not present, thereby constituting a ground on which the election of Mr Fairweather should be declared void pursuant to Section 215(3) of the Organic Law.

54. Three witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

P4	Kak Dagui	Clan leader, Did village
Evidence: He is a registered voter for Ward 22, Sumkar Open Electorate and he voted in the 2012 general election – at 2.00 pm on 22 May during the campaign period he saw people going to the main part of the village and news reached him that the first respondent was presenting a water tank – when he got there, people had already gathered: there were between 50 to 100 people there – he saw that Councillor Aitul Padat was with the people who delivered the tank – he recognised Napolian Funamari who is an agent and employee of the first respondent – the gathering was told that the water tank and four cement bags were from the first respondent – he felt that the presentation was done to induce voters present to vote for the first respondent. In cross-examination he confirmed that these events occurred on 22 May and not 24 May (the date stated in the petition) – Mr Fairweather was not present – the water tank had been requested 'by the aid post' and Mr Funamari explained that the tank was for the aid post.
P5	Aitul Padat	Councillor, Did village, Ward 22, Karkar LLG
Evidence: On 22 May he was at his home when Napolian Funamari drove to his village and picked him up – Funamari told him to go with him to the main village to present a 5000-litre water tank given by the first respondent – he knows Funamari as an agent and employee of the first respondent – Funamari was driving a white Nissan Patrol – he noticed also four cement bags in the vehicle – Funamari was accompanied by another 2-tonne truck with the water tank – he went with Funamari to main village – when people saw the trucks, they started to gather and as news spread more people came – there were between 70 to 100 people there – they were told that the water tank and cement bags came from the first respondent – he felt at that time that delivery of the water tank and four cement bags was to induce people to vote for the first respondent. In cross-examination he confirmed that these events occurred on 22 May and not 24 May (the date stated in the petition) – Mr Fairweather was not present – the water tank had been requested 'by the aid post' and Mr Funamari explained that the tank was for the aid post.
P6	Maros Silei	Elementary school teacher, Did village
Evidence: At 2.00 pm on 22 May during the campaign period he saw people going to the main part of the village and news reached him that the first respondent was presenting a water tank – he was with Kak Dagui and others when he heard this – when he got there, people had already gathered: there were between 50 to 100 people – he saw that Councillor Aitul Padat was with the people that delivered the tank – he also recognised Napoleon Funamari who is an agent and employee of the first respondent – the gathering was told that the water tank and four cement bags were from the first respondent – he felt that the presentation was done to induce voters there to vote for the first respondent. In cross-examination he said that Mr Funamari told the electors that the tank was for the aid post – the villagers had no problem with that, but his concern is that 'they gave it (the tank) on the wrong date', it was delivered during the campaign period.

55. Three witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

R3	Napolian Funamari		Villager, Katom village, Karkar Island
Evidence: During March 2012 water tanks were shipped to various villages on Karkar Island from Madang – one of the villages which received a tank was Did, however after receiving one tank the community leaders asked for an extra one for their aid post – he delivered the tank and four bags of cement in May, as there was a delay due to poor road conditions – he did not tell anyone at Did village to vote for the first respondent – he did the delivery and went back home. In cross-examination he denied picking up Councillor Padat on the way to Did – he delivered the tank on the instructions of the JDPBPC – the date was not 22 May, it was earlier in the month – he only said that 'this tank belongs to the aid post' – he did not say that it came from Mr Fairweather.
R4	David Tamgol		Villager, Did village, Karkar Island
Evidence: He was at his house at Did village when a tank and four cement bags were delivered to the aid post – Napolian Funamari told him items were for aid post: they were supposed to deliver them earlier but because of road conditions, there was a delay – he thanked Funamari on behalf of Did people – the date was not 22 May, it was earlier in the month.
R11		Ken Fairweather	First respondent
Evidence: He knows nothing about what happened at Did – it is the petitioner's village, he (Mr Fairweather) does not get votes there – he does not campaign there, there is no point in doing so – the way in which the tanks were delivered was part of the normal JDPBPC process.

56. I find that Mr Funamari delivered a 5,000-litre water tank and four bags of cement to the Did aid post on 22 May. I reject the evidence of the first respondent's witnesses that the delivery occurred earlier in the month. The petition stated that this incident occurred on 24 May, however I find that 22 May is the correct date.

57. As to who directed Mr Funamari to deliver the tank to Did, the evidence is unclear. I have difficulty with Mr Fairweather's evidence that he knew nothing about it. Surely he would be aware of it. I find that he gave instructions as to the delivery of the tank, either directly or through a member of his staff.

58. As to what Mr Funamari said when he delivered the tank, I have difficulty with his evidence that he said nothing other than that 'this is for the aid post'. I prefer the evidence of the petitioner's witnesses that he explained that 'the tank is coming from Mr Fairweather'.

Was Mr Fairweather a candidate, for the purpose of Section 215 of the Organic Law, on 22 May?

59. No. For the reasons explained earlier, Mr Fairweather did not become a candidate until the following day, 23 May. This means that even if the petitioner is able to prove beyond reasonable doubt that Mr Funamari committed an offence of undue influence or bribery with the knowledge or authority of Mr Fairweather, this will be of no consequence for the purpose of Section 215 of the Organic Law. However, as there has been evidence and argument on the questions of whether any offences were committed, I will now determine those questions.

Did Mr Funamari commit an offence of undue influence under Section 102(b) of the Criminal Code?

60. No. There is no evidence that Mr Funamari 'prevented or obstructed the free exercise of the franchise by any elector or compelled or induced any elector to vote at the election' (that being one of the elements of the offence) or if he did such things that he did so 'by force or fraud' (the other element).

Did Mr Funamari commit an offence of bribery under Section 103(a)(iii) of the Criminal Code?

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

62. The first two elements are established in that Mr Hanibal (1) conferred on the villagers (2) a benefit (in the form of a water tank and four bags of cement). However, the conferral of a benefit on the villagers was a legitimate application of public money in accordance with a meeting of the Sumkar JDPBPC. The funds were of legitimate and known origin. I reject Mr Meten's submission that criminal intent can be inferred from the following facts and propositions:

63. The fact that this event occurred about a month before the commencement of polling does not make it unlawful, irregular or improper. There is no evidence of any speeches being made. I have found that Mr Funmari said that the tank was from Mr Fairweather but that is not the same thing as concluding that a speech was made. I have rejected Mr Fairweather's evidence that he knew nothing about delivery of the tank. However, I reject the labelling of the delivery of the tank as being part of his campaign. The value of the tank is of little relevance to the question of whether any criminal intent was involved. I conclude that there was no criminal intent. No offence under Section 103(a)(iii) has been proven to have been committed or attempted.

Did Mr Funamari commit an offence of bribery under Section 103(d) of the Criminal Code?

2 with the intent that the money will be applied for any of the prescribed purposes, eg endeavouring to procure the return of Mr Fairweather at the election or the vote of electors at the election.

65. The first element has not been established as Mr Funamari advanced a water tank and some bags of cement, not money. No offence could have been committed.

66. This ground fails for two reasons. First the alleged offences, even if proven, were committed at a time that Mr Fairweather was not a candidate. Secondly, no offences were committed by Mr Funamari.

GROUND 4: UNDUE INFLUENCE AND BRIBERY COMMITTED BY MR FAIRWEATHER: RICE, SUGAR AND OTHER GOODS AND K110.00 CASH AT BASKEN ON 13 JUNE

67. On 13 June at Basken village, Sumgilbar LLG area, Mr Fairweather committed undue influence under Section 102(b) of the Criminal Code and bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code by:

personally delivering to Jenny James: 4 bales of Roots rice, 2 bales of 1-kg Ramu sugar, 1 dozen packets of Nescafe coffee, 1 dozen packets of Coffee-Mate, 1 carton of Ox & Palm (red) tinned meat, 1 carton of large Ox & Palm (blue) tinned meat, 1 carton of Diana tinned fish, 1 carton of lamb flaps + K100.00 cash; and

giving to Lawrence Kneunga: 2 packets of 1-kg Roots rice, 1 packet of Ramu sugar, 1 packet of Nescafe coffee, 1 packet of Coffee-Mate, 1 tin of Ox & Palm blue tinned meat, 1 can of Diana tinned fish, 2 lamb flaps + K10.00 cash;

thereby constituting a ground on which the election of Mr Fairweather should be declared void pursuant to Section 215(1) of the Organic Law.

68. One witness gave evidence (by affidavit and oral testimony) as summarised in the following table.

P7	Lawrence Hoki Kneunga	Villager, Basken
Evidence: He has been living in Basken for 3 years and is a voter under Ward 26 of Sumgilbar LLG and he did vote in 2012 general election – on 13/06/12 at about 10.00 am he personally saw the first respondent delivering food items as follows: 4 x bales of 1 kg roots rice, 3 x bales of 1 kg Ramu sugar, 1 dozen packet Nescafe coffee, 1 dozen packet coffee mate, 1 x carton of large Ox and Palm (red) tinned meat, 1 x carton of large Ox and Palm (blue) tinned meat, 1 x carton of small tomato Diana tuna tinned fish, 1 carton of lamb flaps – he also saw the first respondent give K100.00 cash to Mrs Jenny James – after receiving the money and goods Mrs Jenny James distributed them to some people at Basken – he was given K10.00 cash, 2 x 1 kg roots rice, 1 x pkt 1 kg Ramu sugar, 1 x pkt Nescafe coffee, 1 x pkt coffee mate, 1 x blue Ox and Palm tinned meat, 1 x small Diana tomato tinned fish, and 2 pieces of lamb flaps – while distributing the food, Mrs James said words to the effect "Yupela kaikai dispela kaikai na tingim Ken Fairweather" which he took to mean "Eat this food and vote for Ken Fairweather" – he honestly felt at that time that the purpose of presentation of food and money was to induce them to vote for the first respondent.

69. Two witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

R5	Jenny James		Women's leader, Basken
Evidence: She leads a registered women's group that owns two rice milling machines – the group has a close working relationship with Mr Fairweather as their local MP and the JDPBPC – as a gesture of their appreciation they gave him 10 x 1-kg packets of rice that they had grown and milled – she received food items from Mr Fairweather to be cooked for the people who attended the campaign meeting at Basken on 13 June – he also gave her K100.00 being for payment for the labour of the women who cooked – after the meeting it was agreed that the food and money would be distributed according to linage or clan groups – she denies giving Mr Kneunga food and money – it is a common practice for candidates to make feasts and distribute food during election gatherings – all other candidates who came to Basken did the same thing.
R11		Ken Fairweather	First respondent
Evidence: He was given food by the Busken people when he went to their village for a small campaign event – it was the decent thing to do to give something in return – it was part of a normal process of hospitality – it would have been insulting and contrary to normal cultural practices to make no contribution.

70. Mr Fairweather went to Busken on 13 June as part of his campaign. It was not a big event but it was clearly part of his election campaign. He and his group were given some food by Mrs Jenny James and other women on their arrival in the village. Before he left he presented to Mrs James a number of food items and K100.00 cash as a gesture of appreciation for the assistance she and other women had provided.

Did Mr Fairweather commit an offence of undue influence under Section 102(b) of the Criminal Code?

72. No. There is no evidence that he 'prevented or obstructed the free exercise of the franchise by any elector or compelled or induced any elector to vote at the election' (that being one of the elements of the offence) or if he did such things that he did so 'by force or fraud' (the other element).

Did Mr Fairweather commit an offence of bribery under Section 103(a)(iii) of the Criminal Code?

74. The first two elements are established in that Mr Fairweather (1) gave to Mrs James (2) a benefit (in the form of food items and cash). However, the giving of that benefit was a legitimate expression of gratitude for the hospitality displayed by Mrs James and members of her women's group. The value of the food items was relatively small and the amount of cash was not large. I reject Mr Meten's submission that criminal intent can be inferred from the following facts and propositions:

75. I agree that the above matters are relevant considerations to take into account in determining whether there was criminal intent. If the value of the items and the amount of the cash had been significantly higher, their provision could easily have been regarded as payment of a bribe or vote-buying. However in the circumstances of this case I am not satisfied that what occurred amounted to anything more than a candidate giving some items and a small amount of cash as a token of appreciation for the hospitality provided by the recipients.

76. No offence under Section 103(a)(iii) has been proven to have been committed or attempted.

Did Mr Fairweather commit an offence of bribery under Section 103(d) of the Criminal Code?

2 with the intent that the money will be applied for any of the prescribed purposes, eg endeavouring to procure his return at the election or the vote of electors at the election.

78. The first element has been established in regard to Mr Fairweather advancing K100.00 cash to Mrs James. However, this was not done with any criminal intent. No offence under Section 103(d) has been proven.

79. This ground fails because it has not been proven that Mr Fairweather committed any offences.

GROUND 5: UNDUE INFLUENCE AND BRIBERY COMMITTED BY MR FAIRWEATHER: NEW HOLLAND TRACTOR AT DANGSAI ON 20 JUNE

80. On 20 June at Dangsai village, Karkar Island, Mr Fairweather committed undue influence under Section 102(b) of the Criminal Code and bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code by:

presenting and dedicating to Dangsai village a New Holland tractor, in order for the electors at that village to vote for him;

thereby constituting a ground on which the election of Mr Fairweather should be declared void pursuant to Section 215(1) of the Organic Law.

81. Two witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

P8	Gill Galeng	Congregation Chairman, Yer Lutheran Church, Dangsai village
Evidence: He is a registered voter for Sumkar Open and voted in the 2012 general election – on 20 June around 3.00 pm Mr Fairweather came to Dangsai to dedicate a tractor he said he bought for Bagiai Cooperative Society – he (the witness) was asked to be the master of ceremonies for the occasion – Mr Fairweather was the main speaker and spoke of what he will do and what he has done – lots of people gathered to witness the occasion – he felt that the purpose of presentation of the tractor was to induce people there to vote for Mr Fairweather. In cross-examination Mr Galeng conceded that Mr Fairweather only dedicated the tractor on 20 June – it had been presented to the village three weeks earlier – he dedicated it by making a speech and putting the key in the ignition and starting the engine – then he gave the key to the chairman of the co-operative society.
P9	Siloi Punai	Village recorder, Dangsai village
Evidence: He is a registered voter for Sumkar Open and voted in the 2012 general election – on 20 June Mr Fairweather came to the village to dedicate a tractor he bought for Bagiai Cooperative Society – Mr Fairweather was the main speaker – he spoke a lot of what he will do and what he has done like the presentation of the tractor – lots of people from the village gathered to witness the occasion – he felt that presentation of the tractor was to induce people to vote for Mr Fairweather. In cross-examination he agreed that the tractor had been delivered three weeks before 20 June – Mr Fairweather thus dedicated it, but did not present it, on 20 June.

82. Four witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

R6	Kungos Galeng		Villager, Dangsai
Evidence: On 20 June she was at Dangsai – Mr Fairweather was there for a dedication ceremony for the tractor that had been provided to the co-operative society – she was not bribed by Mr Fairweather – she freely voted for him.
R7	Bong Tatu		Villager, Dangsai
Evidence: On 20 June Mr Fairweather and his campaign were at Dangsai village – Mr Fairweather was invited to dedicate the tractor – she was not bribed by Mr Fairweather – she freely voted for him.
R8	Kemson Kavailon		Chairman, Bagiai Cooperative Society Ltd
Evidence: Bagiai Cooperative Society was incorporated on 14 September 2011 – they sought financial assistance from Mr Fairweather, who advised the Managing Director that there would be no cash handouts but he would assist with other means more beneficial – BCS agreed to the purchase of tractor from JDPBPC funds – the tractor was presented to him on 9 May, so when Mr Fairweather came to Dangsai for his campaign on 20 June they invited him to attend for dedication of the equipment.
R11		Ken Fairweather	First respondent
Evidence: He went to Dangsai on 20 June as part of the normal campaign process, to give a speech – he was surprised to find out that the villagers had organised a dedication ceremony for the tractor.

83. Mr Fairweather went to Dangsai on 20 June for a campaign event. This was only three days before the first day of the polling period, 23 June. He planned to make a speech. When he arrived at the village he was asked to take part in a dedication ceremony for a New Holland tractor that had been acquired through JDPBPC funding for a local co-operative society. I accept his evidence that it was not his idea to dedicate the tractor and he was taken by surprise when he was asked to do this. The tractor had been delivered to the chairman of the co-operative society more than a month previously, on 9 May. Mr Fairweather dedicated the tractor by putting the key in the ignition and turning on the engine. At the same time he made a campaign speech, highlighting his achievements as MP and what he would do if re-elected.

Did Mr Fairweather commit an offence of undue influence under Section 102(b) of the Criminal Code?

85. No. There is no evidence that he 'prevented or obstructed the free exercise of the franchise by any elector or compelled or induced any elector to vote at the election' (that being one of the elements of the offence) or if he did such things that he did so 'by force or fraud' (the other element).

Did Mr Fairweather commit an offence of bribery under Section 103(a)(iii) of the Criminal Code?

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

87. None of the elements are established as the tractor was not provided on 20 June. The co-operative society took possession of it on 9 May (at a time that Mr Fairweather was not a candidate). No property was given, conferred or procured on 20 June. No offence under Section 103(a)(iii) has been proven to have been committed or attempted.

Did Mr Fairweather commit an offence of bribery under Section 103(d) of the Criminal Code?

88. No. There was no exchange of money at Dangsai on 20 June. Neither of the elements of this offence has been proven. No offence under Section 103(d) has been proven.

89. This ground fails because it has not been proven that Mr Fairweather committed any offences.

GROUND 7: UNDUE INFLUENCE AND BRIBERY COMMITTED BY ANOTHER PERSON WITH MR FAIRWEATHER'S KNOWLEDGE AND AUTHORITY: HARDWARE AND STOCK-FEED AT GARUM ON 29 JUNE

90. On 29 June at Garum village, Sumgilbar LLG area, Mr Fairweather's agent, Morris Dondon, committed undue influence under Section 102(b) of the Criminal Code and bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code by:

on polling day, while electors were gathering to cast their votes, delivering in the vicinity of the polling place hardware and stock-feed (viz 2 x 40-kg starter stock-feed bags, 4 x 40-kg finisher stock-feed bags, 5 x roofing iron, 1 x chicken wire, 1 x 10-litre bucket with lid, 3 x gutter, 1 x downpipe, 13 x clamps), while announcing "These are hardware gifts from Mr Ken Fairweather to say 'thank you' to us for assisting him in the last five years and for us to assist him in the next five years", with the intention of inducing those electors to vote for Mr Fairweather at the election;

91. Two witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

P10	Gande Bunam Anis	Community leader, Bunabun village
Evidence: he is a registered voter and voted in the 2012 general election – on polling day on 29 June at about 10.00 am at Garum polling area near Mangem Care Centre where electors were gathering to cast their votes, Mr Fairweather, through his agent, Morris Dondon, delivered to the vicinity of polling booth by an Agmark Madang truck the hardware and stock-feed described in the petition – he was present at the delivery site and witnessed the delivery – Mr Dondon announced "These are hardware gifts from Mr Ken Fairweather to say 'thank you' to us for assisting him in the last five years and for us to assist him in the next five years" – he inferred from Mr Dondon's words that people at the polling area should vote for Mr Fairweather – he felt that presentation of the goods was to induce people to vote for Mr Fairweather.
P11	Freddy Samor Wassem	Community leader, Bunabun village
Evidence: he is a registered voter and voted in the 2012 general election – on polling day on 29 June at about 10.00 am at Garum polling area near Mangem Care Centre where electors were gathering to cast their votes, Mr Fairweather, through his agent, Morris Dondon, delivered to the vicinity of polling booth by an Agmark Madang truck the hardware and stock-feed described in the petition – he was present at the delivery site and witnessed the delivery – Mr Dondon announced "These are hardware gifts from Mr Ken Fairweather to say 'thank you' to us for assisting him in the last five years and for us to assist him in the next five years" – he inferred from Mr Dondon's words that people at the polling area should vote for Mr Fairweather – he felt that presentation of the goods was to induce people to vote for Mr Fairweather.

92. Three witnesses gave evidence (by affidavit and oral testimony) as summarised in the following table.

R9	Morris Dondon	Scrutineer for Mr Fairweather, from Garum No 2
Evidence: On 29 June he was at Garum 1 polling place from 8 am until close of polling, doing scrutineer's work – he was not on the Agmark delivery truck and did not deliver any hardware materials or do any of the other things alleged in the petition. No items were delivered to the polling place.
R10	Schola Dondon	President, Busega Women's Group, Garum No 2 village
Evidence: She is Morris Dondon's wife – she applied, on behalf of her women's group, to Mr Fairweather to fund materials and stock-feed to start a poultry project for the group – her group was allocated K2,500.00, which was paid to Agmark Madang by a cheque dated 18 May, together with money allocated to other applicants – Pauline Kaikoba, from Mr Fairweather's office, identified her and she did the shopping – she took the day-old chickens with her and left the other items to be delivered by Agmark on their next trip to the Bunabun area. On 29 June Agmark delivered the items to her house at Garum No 2, 1.5 km from the polling place – her husband was not present, he was at the polling place.
R11	Ken Fairweather	First respondent
Evidence: He does not know anything about the delivery of these items – funds were allocated to a chicken project as part of the normal JDPBPC process – he did not ask Morris Dondon to make a speech.

93. Morris Dondon and Scholar Dondon were impressive witnesses and I prefer their evidence to that of the petitioner's witnesses. I find that hardware and stockfeed were delivered on 29 June, not to the polling place at Garum but to the Dondon house, 1.5 km away. These items had been allocated to a women's group for a chicken project, as part of the normal JDPBPC process. Mr Dondon did not make the statement attributed to him in the petition. I accept Mr Fairweather's evidence that he had no knowledge of delivery of the items.

Did Mr Dondon commit an offence of undue influence under Section 102(b) of the Criminal Code?

95. No. The proposition that he made a statement suggesting that electors should vote for Mr Fairweather has been rejected.

Did Mr Dondon commit an offence of bribery under Section 103(a)(iii) of the Criminal Code?

Did Mr Dondon commit an offence of bribery under Section 103(d) of the Criminal Code?

98. This ground fails because it has not been proven that Mr Dondon committed any offences.

99. All grounds of the petition have failed, and I find that that is a just and sufficient reason, pursuant to Sections 212(1)(i) and 212(3) (powers of court) of the Organic Law, to dismiss the whole of the petition. Costs will follow the event, in that the petitioner will be required to pay the first respondent's costs. The second and third respondents played a minimal role in the proceedings, so it is appropriate that they bear their own costs.

Judgment accordingly.
___________________________________________________________
Meten Lawyers: Lawyers for the Petitioner
Young & Williams Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second and Third Respondents

National Court of Papua New Guinea

Singirok v Fairweather [2014] PGNC 53; N5577 (24 April 2014)