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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 64 OF 2022
IN THE MATTER OF A DISPUTED RETURN FOR THE
RIGO OPEN ELECTORATE
TURAI ELEMI
Petitioner
V
SIR ANO PALA
First Respondent
ELECTORAL COMMISSION
Second Respondent
Waigani: Cannings J
2023: 9th, 10th, 13th, 15th, 20th February
ELECTIONS – petitions – “bribery”: Organic Law on National and Local-level Government Elections, s 215 – elements of offences of bribery (Criminal Code, s 103) – whether bribery offences were committed by persons other than the successful candidate – whether bribery committed with successful candidate’s knowledge or authority.
The petitioner challenged the return of the first respondent as successful candidate on seven grounds of bribery, relying on s 215(1) of the Organic Law on National and Local-level Government Elections. Three grounds (Nos 3, 4 and 7) were struck out upon determination of objections to competency of the petition. Four grounds (Nos 1, 2, 5 and 6) were the subject of trial. It was alleged that four offences of bribery under s 103 of the Criminal Code were committed by the first respondent “directly or indirectly”. Ground 1: bribery by the first respondent’s campaign manager of three registered voters with K50.00 cash each to vote for the first respondent. Ground 2: bribery by a campaign coordinator of the first respondent of the chairman of a village church with K9,000.00 cash to use for a church event, on the understanding that the church chairman would inform voters that the money was authorised by the first respondent so they could vote for him. Ground 5: bribery by the first respondent’s campaign coordinators of three registered voters with K4,000.00 cash to induce each of them to procure votes for the first respondent. Ground 6: bribery by the first respondent’s campaign coordinator of voters at a village with K4,000.00 cash to purchase materials for the pastor’s house, on the understanding that villagers would vote for the first respondent. It was alleged that on each occasion cash was provided by servants or agents of the first respondent with the knowledge or authority of the first respondent in order to induce persons to endeavour to procure the return of the first respondent at the election or the votes of electors. The petitioner sought an order that the election and declaration of the first respondent as the successful candidate be quashed and declared void and that a by-election be conducted. The Electoral Commission is the second respondent.
Held:
(1) “Bribery” in s 215 of the Organic Law means one of the offences of bribery in s 103 of the Criminal Code. The petitioner must prove to the entire satisfaction of the court that one of those offences was committed by the successful candidate or by another person with the candidate’s knowledge or authority.
(2) As to ground 1, the offence of bribery was not proven, as it was not proven that the electors who received K50.00 cash were informed they had to vote for the first respondent.
(3) As to ground 2, the offence of bribery was not proven, as it was not proven that the understanding was that the church chairman who received K9,000.00 cash from the first respondent’s campaign coordinator would inform voters that the money was authorised by the first respondent so they could vote for him. The evidence showed that the cash was provided in response to a specific request from the church, made and complied with during the campaign period.
(4) As to ground 5, the offence of bribery was not proven, as it was not proven that the sum of K4,000.00 cash was given to the alleged recipients of the bribe (their evidence was vague and contradictory); and it was not proven that, if they did receive that cash, it was given to them to induce them to procure votes for the first respondent.
(5) As to ground 6, the offence of bribery was not proven, as it was not proven that there was any understanding or condition that the church deacon who received K4,000.00 cash from the first respondent’s campaign coordinator would inform the voters at the village that the money was authorised by the first respondent so they could vote for him.
(6) None of the alleged offences of bribery were proven to have been committed by the first respondent or any of his campaign officials or any other person with his knowledge or authority. The petition was entirely dismissed.
Cases Cited
The following cases are cited in the judgment:
Agonia v Karo [1992] PNGLR 463
Elemi v Pala (2023) N10112
Fairweather v Singirok [2013] 2 PNGLR 95
Hagahuno v Tuke (2020) SC2018
Isoaimo v Aihi [2012] 2 PNGLR 337
Niningi v Awesa (2013) N5322
Parkop v Vele (No 3) (2007) N3322
Pokaya v Marape (2018) N7234
Tulapi v Lagea (2013) N5323
Warisan v Arore [2015] 1 PNGLR 315
Counsel
T Elemi, the petitioner, in person
I M Molloy, for the First Respondent
N Tame, for the Second Respondent
20th February, 2023
1. CANNINGS J: The petitioner Turai Elemi filed a petition disputing the election of the first respondent Sir Ano Pala as member for Rigo Open in the 2022 general election. The Electoral Commission is the second respondent and supports the first respondent in opposing the petition.
2. The petitioner seeks an order that the election and declaration of the first respondent as member for Rigo Open be quashed and declared void and that a by-election be conducted. The order is sought under s 215(1) (voiding election for illegal practices) of the Organic Law on National and Local-level Government Elections, which provides:
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.
3. The petition contained seven grounds of bribery. Three grounds (Nos 3, 4 and 7) were struck out upon determination of objections to competency of the petition (Elemi v Pala (2023) N10112). Four grounds (Nos 1, 2, 5 and 6) were the subject of trial.
FOUR GROUNDS: FOUR ALLEGED BRIBERY OFFENCES
4. The petitioner alleges that four offences of bribery under s 103 of the Criminal Code were committed by the first respondent “directly or indirectly” during the campaign period.
5. Ground 1: bribery by the first respondent’s campaign manager of three registered voters at Korobosea with K50.00 cash each to vote for the first respondent.
6. Ground 2: bribery by a campaign coordinator of the first respondent of the chairman of Mamalo United Church with K9,000.00 cash to use for a church event, on the understanding that the church chairman would inform voters at the village that the money was authorised by the first respondent so they could vote for him.
7. Ground 5: bribery by three campaign coordinators of the first respondent of three registered voters at Keapara with K4,000.00 cash to induce them to endeavour to procure their votes for the first respondent.
8. Ground 6: bribery by a campaign coordinator of the first respondent of voters at Libunakomana by giving the United Church K4,000.00 cash to purchase materials for the pastor’s house, on the understanding that voters at the village would vote for the first respondent.
9. The petitioner alleges that on each of those occasions cash was provided by servants or agents of the first respondent with the knowledge or authority of the first respondent in order to induce persons to endeavour to procure the return of the first respondent at the election or the votes of electors.
“BRIBERY”
10. It is settled law that “bribery” in s 215 of the Organic Law means one of the offences of bribery created by s 103 of the Criminal Code. The petitioner has the burden of proving, “to the entire satisfaction of the Court”, that the offence of bribery was committed or attempted to be committed (Warisan v Arore [2015] 1 PNGLR 315, Pokaya v Marape (2018) N7234).
11. Section 103 (bribery) of the Criminal Code states:
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.
12. The petition does not specify what types of bribery offences were committed, however it has been clarified in submissions that s 103(a)(iii) and to a lesser extent 103(d) of the Criminal Code are relied on.
13. As explained in Isoaimo v Aihi [2012] 2 PNGLR 337, the elements of an offence under s 103(a)(iii) are that the person alleged to have committed the offence:
14. The elements of an offence under s 103(d) are that the person alleged to have committed the offence:
15. There is authority for the proposition that it is necessary for a petitioner to prove, in addition to the elements of a bribery offence, that the person alleged to have committed the offence acted with criminal, corrupt or improper intent (Agonia v Karo [1992] PNGLR 463, Parkop v Vele (No 3) (2007) N3322, Niningi v Awesa (2013) N5322, Tulapi v Lagea (2013) N5323). I am not so sure about that as in PNG an offence is constituted by its statutory elements. I am not bound to follow those decisions as they all are from the National Court. In a criminal trial it is not necessary for the prosecution to prove anything other than the statutory elements. The concept of mens rea (guilty mind) or intent might be built into an element, but if it is not expressed as an element, it does not have to be proven. Perhaps this issue should be explored by the Supreme Court in an appropriate future case.
THEORY OF THE PETITIONER’S CASE
16. The petition does not specify how the first respondent committed the offences. However, I infer from the allegation in paragraph C2 of the petition – that the first respondent committed the offences directly or indirectly – that it is alleged that in instances where his authorised servants or agents committed the offences, they were acting with his knowledge or authority.
17. As I indicated in my ruling on the objections to competency (Elemi v Pala (2023) N10112), this petition should probably have been based on s 215(3) of the Organic Law, which states:
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.
18. More specifically, it should have been based on s 215(3)(a), in which case it would be very clear that the petitioner’s case was that the first respondent’s servants and agents committed bribery offences and did so with his knowledge or authority. That is all that must be proven to have the election declared void. It would not be necessary to prove that the result of the election was “likely to be affected” by commission of a bribery offence and that it was “just” that the first respondent be declared not duly elected (Fairweather v Singirok [2013] 2 PNGLR 95).
19. However, I do not wish to nit-pick over the drafting of the petition. Nor do I want to criticise the ‘pleading’ of it. Lawyers and Judges (me included, I confess) have become too accustomed to talking about pleadings in election petition cases. I think the word pleading is inappropriate. Pleading is a technical legal term, which is not used in the Organic Law. It should be confined to its proper place, where a court proceeding is commenced by writ of summons and the pleadings are the statement of claim and the defence and other statements of the cases of the parties.
20. In election petition cases, special rules of practice and procedure apply, arising from s 217 (real justice to be observed) of the Organic Law, which states:
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
21. The obligation of the Court to be guided by the substantial merits and good conscience of an election petition case without regard to legal forms and technicalities applies from the beginning of an election petition case (including during hearing of objections to competency), throughout the trial, and right to the end. That has not always been accepted to be the law, but is now, due to the recent five-Judge decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018.
22. So, this is how I am going to interpret the petitioner’s case: various acts of bribery were committed by servants or agents of the first respondent, who on each occasion acted with his knowledge or authority. In that way, the first respondent indirectly committed bribery and the election must be declared void under s 215(1) of the Organic Law.
23. Another way of interpreting the petitioner’s case would be to invoke s 7 of the Criminal Code, which provides that any person who aids, assists or counsels another person to commit an offence is also guilty of the offence. However, s 7 is not referred to in the petition and was not mentioned by any of the parties in their submissions, so the question of its relevance can be left for another case.
24. I will now examine each of grounds 1, 2, 5 and 6 of the petition, focussing on whether in each case the offence of bribery has been committed by a servant or agent of the first respondent, and if the offence is proven to have been committed, whether it was with the knowledge or authority of the first respondent.
GROUND 1: BRIBERY OF THREE REGISTERED VOTERS AT KOROBOSEA WITH K50.00 CASH EACH
25. This ground states:
(a) On 25th of May 2022, the First Respondent’s team coordinator for Tauruba and Gamoga villages, namely, a Vai Virobo picked up seven (7) registered voters from Gamoga village including a Daniel Goru (“Goru”), age 33 years, Emmanuel Kila (“Kila”), age 35 years, and Matuka Gini (“Gini”), age 23 years and drove in a white Toyota Landcruiser owned by a Tau Renagi of Tauruba village to Port Moresby.
(b) At Port Moresby, Kila, Goru, Gini and others were driven to the First Respondent’s residence at Korobosea and were introduced to the First Respondent and his campaign team.
(c) After discussions, the campaign manager of the First Respondent, a Mr Uve Rova hand delivered to each one of the seven persons including Goru, Gini and Kila, K50 each.
(d) Mr Rova advised or informed Kila, Gini and Goru and others openly that they were now paid the sum of K50 and had to vote for Ano Pala during the polling.
(e) Thus, it is alleged that Kila, Gini and Goru who are registered voters were each given the sum of K50 by the First Respondent’s campaign manager, Mr. Uve Rova in the presence and knowledge or consent of the First Respondent in order to induce them to cast their votes for the First Respondent to return as the elected member for the Rigo Open Electorate.
26. In summary, the allegation is that a group of people were brought from Gamoga village to the first respondent’s campaign house at Korobosea and introduced to the first respondent and his campaign team and then given K50.00 cash by the first respondent’s campaign manager, Uve Rova, and told they had to vote for the first respondent.
Petitioner’s witnesses
27. Evidence in support of this allegation was given by Daniel Goru, Emmanuel Kila and Matuka Gini. Each of them swore an affidavit, giving the same version of events, which supported the facts alleged in ground 1. Each was sworn in as a witness. Each identified and adopted their affidavit, which was then admitted into evidence, after hearing and determining objections to its contents (based on hearsay, relevance etc) and without cross-examination.
No cross-examination of petitioner’s witnesses
28. The respondents were not permitted to cross-examine the petitioner’s witnesses as the respondents had not complied with the court’s directions as to the giving of notices to cross-examine. The respondents sought leave of the court to cross-examine them, but it was opposed by the petitioner. There was a hearing on this question, and I refused to grant leave. I indicated that the ruling would apply to all the petitioner’s witnesses. The result was that the petitioner’s evidence for the four grounds of the petition that went to trial was only in affidavit form.
Victory speech
29. The petitioner also presented evidence of words spoken by the first respondent in a victory speech at the campaign house in Korobosea on the evening of 5 August 2022. The first respondent does not dispute that he said amongst other things:
... A system to move forward ... thank you the counting people ... as you heard, the system has failed, many of the people who are declared have no right to be declared because the system failed, but because they controlled the system, they were able to get elected. Now I am going to go in and sit next to those people and we will work together knowing that many of those people did not come through the right way... So the secret to Government and governance is to have a very effective system.
30. The petitioner submitted that the first respondent was confirming that he had put in place a corrupt system to get himself elected, by a process of systematic vote-buying, and that this concession is relevant to each of the grounds of the petition as it provides further evidence of his corrupt motives.
31. The first respondent, of course, denies those assertions. Though he did not give evidence, it was submitted by his counsel Mr Molloy that he was saying nothing of the sort contended for by the petitioner.
32. I am persuaded by Mr Molloy’s submissions that the words used in the victory speech cannot reasonably be interpreted in the way contended for by the petitioner. In my view, the words used are capable of many interpretations, one of which is the opposite of the petitioner’s contention: that the first respondent was distinguishing between the way he was elected and the way that some other members of the Parliament (who had no right to be declared, but they controlled the system) were elected.
33. I consider that the words used by the first respondent in his victory speech are irrelevant to determination of the question of whether any bribery offences the subject of ground 1 of the petition were committed. And those words are also irrelevant to the other grounds that went to trial: Nos 2, 5 and 6.
First respondent’s witnesses
34. The first respondent presented three witnesses for ground 1: Uve Rova (the campaign manager), Kila Gamu (from Gamoga, a passenger in the Landcruiser) and Vai Virobo (driver of the Landcruiser), who were cross-examined. Much of their evidence was consistent with that of the petitioner’s witnesses: there was a gathering at the campaign house, the first respondent was present (though they say he left before any cash was given to the attenders), a number of supporters of the first respondent were present, speeches were made and attenders were given K50.00 cash each at the end of the event.
35. There was some disagreement as to the date of the event but I regard that as insignificant. It was in May 2022, during the period when the first respondent was a candidate.
36. The significant difference between the evidence of the petitioner’s witnesses and that of the first respondent’s witnesses was about what was said by Mr Rova when the K50.00 cash payments were made and whether the first respondent was present. The petitioner’s witnesses say Mr Rova told them “that since we were now being paid, we had no choice but to give our number one vote to Ano Pala during the polling”. The first respondent’s witnesses said it was for their bus fare.
Findings of fact
37. I find the version of events given by the first respondent’s witnesses more believable for the following reasons:
38. The words attributed by the petitioner’s witnesses to Mr Rova were not in fact spoken by him. Mr Rova was an agent of the first respondent. However, I find that the K50.00 cash payments were made to assist those attending the event, including the petitioner’s witnesses, who were regarded as supporters of the first respondent, with their transport costs and other incidental expenditure so they could find their way back to their villages. I find that when the cash was distributed, the first respondent was not present.
39. I now address the elements of ss 103(a)(iii) and 103(d) of the Criminal Code.
Was bribery committed under s 103(a)(iii) of the Criminal Code?
40. The question is whether Mr Rova:
1 gave, conferred or procured ... to, on, or for, any person;
2 any property or benefit of any kind;
41. The first two elements are established in that Mr Rova (1) gave to the petitioner’s witnesses (2) property constituted by K50.00 cash. As to the third, I am not satisfied, in light of my findings as to what was said (and not said) by Mr Rova and the purpose of the cash payments, that the cash was given in order to induce:
42. I am not satisfied that Mr Rova committed bribery under s 103(a)(iii).
Was bribery committed under s 103(d) of the Criminal Code?
43. The question is whether Mr Rova:
44. The first element is proven, as Mr Rova advanced money to the petitioner’s witnesses. However, the money was not advanced to endeavour to procure the return of the first respondent at the election or the vote of electors at the election or to any of the other purposes referred to in s 103(d). I am not satisfied that Mr Rova committed bribery under s 103(d).
Conclusion re ground 1
45. The petitioner has not proven that the first respondent’s campaign manager, Mr Rova, committed any of the bribery offences alleged in ground 1 of the petition. The question of whether the K50.00 cash payments were made with the knowledge or authority of the first respondent is irrelevant. It has not been proven that the first respondent committed bribery directly or indirectly for the purpose of s 215(1) of the Organic Law. Ground 1 of the petition fails.
GROUND 2: BRIBERY OF CHAIRMAN OF MAMALO UNITED CHURCH WITH K9,000.00 CASH
46. This ground states:
(a) On the 14th June 2022, at around 6 pm, during the campaign period the First Respondent’s known coordinator Hon Kero Lita, the ward member of Ward 11 of Kore/Gwaibo/Segi villages, went to Mamalo village and hand delivered a brown envelope containing cash in the sum of K9,000.00 to Mr Nanu Kila who was the chairman of the Mamalo United Church.
(b) Mr Kero Lita verbally informed Mr Nanu Kila that he was authorized by the First Respondent to deliver the money on his behalf. Furthermore, Mr Kila was to ensure that the voters at Mamalo village were informed of the money given to him and the real purpose was to vote for the First Respondent.
(c) The receipt and purpose of the money was then made known to the entire Mamalo village and distributed amongst the village clans who used part of the money for the hosting of an annual event of the East Central Papua Region – United Church at Mamalo village.
(d) The voters at Mamalo village were heavily influenced and lured by the payment of K9,000.00 in cash and other foodstuff that were distributed by the First Respondent thereby casted their votes for the First Respondent.
(e) Thus, it is alleged that Mr Nanu Kila, a registered voter was given money in the sum of K9,000.00 in cash from Kero Lita the authorized agent of the First Respondent in order to induce or influence him and the other voters at the Mamalo village to vote for the First Respondent to be returned as the member for the Rigo Open Electorate.
47. In summary, the allegation is that a campaign coordinator of the first respondent, Kero Lita, went to Mamalo village and met the chairman of Mamalo United Church, Nanu Kila, and gave him a brown envelope containing K9,000.00 cash to use for a church event, on the understanding that Mr Kila would inform voters at the village that the money was authorised by the first respondent so they could vote for him. That was made known to the entire village and the cash was distributed amongst the clans; part of the cash was used for a church event hosted by the village.
Petitioner’s witnesses
48. Evidence in support of this allegation was given by Nanu Kila, Lewa Kila (a deacon at Mamalo United Church), Chief Ila Geno and Tau Vini. Each of them swore an affidavit, and in the case of Mr Kila, two affidavits. Each was sworn in as a witness. Each identified and adopted their affidavit, which was then admitted into evidence, after hearing and determining objections to its contents (based on hearsay, relevance etc) and without cross-examination (for the reasons outlined earlier).
49. Nanu Kila stated that Kero Lita came to the village early on the evening of Sunday 12 June 2022. Mr Lita had informed him that he was coming, as had the first respondent’s campaign manager Mr Rova, and that he was bringing K9,000.00 cash from the first respondent. Mr Lita arrived and they met on the stage in the centre of the village and he presented the cash in the presence of church executives. Mr Kila said that the next day he made an announcement in the village that the money had come from the first respondent and “for the voters to cast their votes for Ano Pala.”
50. Lewa Kila stated that the K9,000.00 was distributed to the village and a large part of it was used to build a mess for the hosting of a church event.
51. Chief Ila Geno was another candidate for the Rigo Open seat. He recalled receiving a written request for financial assistance from Mamalo United Church in May 2022. He did not respond favourably as the request was made during the election period. He knew that any contributions, though with good intent, would have been viewed differently by others and it would not have been proper to respond favourably. In his opinion no candidate should respond favourably to such requests during the election period as to do so would influence or induce the voters to vote for the contributor.
52. Tau Vini is Corporate Secretary of the Bank of Papua New Guinea. The purpose of his affidavit was to respond to claims that he gave K1,000.00 on behalf of the petitioner to Mamalo United Church during the campaign period. He said that he gave them K1,000.00 but it was his own money and it was in response to a letter of request from the church.
First respondent’s witnesses
53. The first respondent presented three witnesses for ground 2: Kero Lita (campaign coordinator), Pastor Alu Leva of Mamalo United Church and Varo Mave.
54. Mr Kero confirmed attending Mamalo village to present the church with K9,000.00 on behalf of the first respondent, which was in response to a request for financial assistance for extension of the pastor’s house and for work on the church mess.
55. Pastor Leva confirmed that the church had written to the first respondent in May 2022 seeking financial assistance for three church projects.
56. Varo Mave is chairman of Mamalo United Church. He was a signatory to the letter addressed to the first respondent seeking financial assistance for three church projects. He was present when Mr Lita arrived with the K9,000.00, which was given to and controlled by the church executives.
Findings of fact
57. There is no direct evidence to support the gist of ground 2: that when the money from the first respondent was given to Mamalo United Church, it was on the understanding that voters would be informed that the money was authorised by the first respondent so they could vote for him. I am satisfied that Mr Lita was an agent of the first respondent.
58. However, I find that:
Has a bribery offence been committed?
59. For the purposes of s 103(a)(iii) of the Criminal Code, though the first two elements of the offence are proven, the third is not, as it has not been proven that the K9,000.00 was given 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. I am not satisfied that Mr Lita committed bribery under s 103(a)(iii).
60. As for s 103(d), the first element is proven as Mr Lita, on behalf of the first respondent, advanced money to Mr Kila, who received it on behalf of the church. However, the money was not advanced with the intent that it would be applied for any of the prescribed purposes, eg endeavouring to procure the return of the first respondent at the election or the vote of electors at the election. I am not satisfied that Mr Lita committed bribery under s 103(d).
61. It may reasonably be regarded as an improper request on the part of a church and an imprudent response by the first respondent’s representatives during a campaign period but that does not force the conclusion that an offence was committed.
Conclusion re ground 2
62. The petitioner has not proven that the first respondent’s campaign coordinator, Mr Lita, committed any of the bribery offences alleged in ground 2 of the petition. The question of whether the K9,000.00 cash contribution was made with the knowledge or authority of the first respondent is irrelevant. It has not been proven that the first respondent committed bribery directly or indirectly for the purpose of s 215(1) of the Organic Law. Ground 2 of the petition fails.
GROUND 5: BRIBERY OF THREE REGISTERED VOTERS AT KEAPARA WITH K4,000.00 CASH
63. This ground states:
(a) On Wednesday 29th June 2022, the First Respondent’s coordinators for the villages of Keapara, Alukuni and Karawa (“KAK”) namely, Navu Mahu, Uve Rova and Ila Renagi Snr returned from Port Moresby with cash in the sum of K105,000.00, which money was distributed amongst the three (3) villages in preparation for the First Respondent’s final rally at the Keapara Sports Field on 1st July 2022.
(b) The campaign committee of the First Respondent distributed K35,000.00 to each of the three villages. The Amoa clan whose chairman is a Gia Muna, a Karona Gia and Geno Gia received K4,000.00 on behalf of their clan.
(c) The voters at KAK including the registered voters namely Ara Au (“Au”) age 52 years, Waea Karo (“Karo”) age 42 years and Namba Vakona (“Vakona”) age 33 years, were heavily influenced and lured by the monies given and the food and drinks supplied by the First Respondent, to vote for the First Respondent.
(d) At polling, almost the entire voters of the three villages numbering about 1,300 plus voters did cast their votes for the First Respondent.
(e) It is alleged that Au, Karo and Vakona (and their clan members), the registered voters of KAK were given K4,000.00 and foodstuff in order to induce each one of them to endeavour to procure their votes for the First Respondent to be returned as the member for Rigo Open Electorate.
64. The allegation that three members of the first respondent’s campaign committee – Uve Rova, Ila Renagi and Navu Mahu – brought K105,000.00 cash from Port Moresby to the first respondent’s final campaign rally at Keapara forms the background to the key allegation in ground 5: that the committee members bribed three registered voters at Keapara – Ara Au, Waea Karo and Namba Vakona – by giving K4,000.00 cash and foodstuff to their clans, to induce each of them to endeavour to procure votes for the first respondent.
Petitioner’s witnesses
65. Evidence on this allegation was given by Ara Au, Waea Karo and Namba Vakona. Each of them swore an affidavit. Each identified and adopted their affidavit, which was then admitted into evidence after hearing and determining objections to its contents (based on hearsay, relevance etc) and without cross-examination (for the reasons outlined earlier).
66. Ara Au gives evidence that three truckloads of foodstuff were brought to the rally, which was for the KAK villages (Keapara, Alukuni and Karawa), that the entire KAK community was covered in green as Pangu Pati tee shirts and caps were freely distributed and that he and others were heavily influenced by the money and food distributed by the first respondent to vote for him.
67. Waea Karo states that three of his Amoa Clan representatives who were members of the first respondent’s campaign committee received K4,000.00 on behalf of the clan, which was to be distributed by K2,000.00 going to the campaign committee members and K2,000.00 to the clan generally. He also gives evidence of an intra-clan dispute about how the K4,000.00 was distributed. He states that he was influenced by the cash that was distributed to vote for the first respondent.
68. Namba Vakona gives evidence that members of the first respondent’s campaign committee from his clan, Oneraka, received K4,000.00 cash from the cash brought to the KAK villages for the first respondent’s campaign rally. The cash was distributed by K2,000.00 going to the campaign committee members and K2,000.00 to the clan generally. After the rally, a lot of food was distributed by the first respondent’s campaign committees. He was heavily lured to vote for the first respondent.
First respondent’s witnesses
69. Three witnesses for the first respondent gave evidence regarding ground 5: Uve Rova (campaign manager), Ila Renagi (campaign financial controller) and Nau Maha (assistant campaign manager).
70. Mr Rova stated that no large amounts of cash were taken to the KAK villages for the rally. Instead, cash was given at Port Moresby to the campaign committee members from each village. The sum of K35,000.00 was allocated to Keapara village and K10,000.00 was allocated to each of Alukuni and Karawa villages, on the understanding that the money would be used to provide food to the people attending the rally.
71. Mr Renagi said that he was in control of the money allocated for the campaign and he answered to the campaign executive committee and that the first respondent had nothing to do with distribution of cash.
72. Mr Maha’s evidence was that he was involved in setting up the rallies and making sure that microphones were working and the like. He was not involved in distribution of money.
Findings of fact
73. There is no direct evidence to support the gist of ground 5 of the petition: that Ara Au, Waea Karo and Namba Vakona were bribed as a result of their clans being given K4,000.00 cash and foodstuffs, to induce each of them to endeavour to procure votes for the first respondent. Mr Au’s evidence is very general and does not support the allegation of any particular clan being given K4,000.00. Mr Karo’s evidence is only as to his clan receiving K4,000.00 but does not say who actually handed over that sum of money and because of the lack of detail, is difficult to believe. I assess Mr Vakona’s evidence in the same way as Mr Karo’s evidence: difficult to believe.
74. I find that:
Has a bribery offence been committed?
75. For the purposes of s 103(a)(iii) of the Criminal Code, none of the elements have been satisfied as it has not been established that K4,000.00 cash was given to any particular clan on the day of the rally or in connection with the rally. Further, it has not been established who handed the alleged sums of K4,000.00 cash to the alleged recipients. I am not satisfied that any offences of bribery under s 103 of the Criminal Code were committed.
Conclusion re ground 5
76. The actual allegations and the supporting evidence in relation to count 5 turned out to be vague and unsustained. It has not been proven that the first respondent committed bribery directly or indirectly for the purpose of s 215(1) of the Organic Law. Ground 5 of the petition fails.
GROUND 6: BRIBERY OF LIBUNAKOMANA UNITED CHURCH WITH K4,000.00 CASH
77. This ground states:
(a) On 23rd June 2022 during a campaign rally of the First Respondent at Libunakomana village, Rigo, Central Province, the First Respondent after making his speech, his coordinator or authorized agent, a Mr Tom Goodwin delivered a sum of K4,000.00 cash in a brown envelope to the Libunakomana United Church deacon, namely Maino Rigena.
(b) Mr Tom Goodwin in handing over the money on behalf of the First Respondent confirmed the amount of K4,000.00 publicly. He then said that the money was to assist them to purchase materials for the pastor’s new house, therefore the voters should vote for the First Respondent.
(c) It is alleged that a Mr [Govo] Jack, age 45 years, a registered voter who is from Libunakomana village and a committed member of the Libunakomana United Church witnessed the giving of the sum of K4,000.00 by a Tom Goodwin with the knowledge, consent and in the presence of the First Respondent, was influenced or induced by the said act to vote for the First Respondent to be returned as the member for the Rigo Open Electorate.
78. In summary, the allegation is that on the day of a campaign rally at Libunakomana village, a campaign coordinator of the first respondent, Tom Goodwin, met a Libunakomana United Church deacon, Maino Rigena, and gave him a brown envelope containing K4,000.00 cash from the first respondent to use to purchase materials for the pastor’s house, on the understanding that voters at the village would vote for the first respondent.
Petitioner’s witnesses
79. Evidence in support of this allegation was given by Boru Gabi (from Libunakomana, a carpenter engaged to build the pastor’s house), Billy Vanilo (from Libunakomana, present for the rally) and Govo Jack. Each of them swore an affidavit. Each was sworn in as a witness. Each identified and adopted their affidavit, which was then admitted into evidence, after hearing and determining objections to its contents (based on hearsay, relevance etc) and without cross-examination (for the reasons outlined earlier).
80. Boru Gabi was at the rally. After the speeches the first respondent left and shortly after his departure, his campaign coordinator for the village, Tom Goodwin, called Mr Rigena and Andy Duana to Mr Rigena’s house to present money on behalf of the first respondent. Mr Gabi states that the next day he was called to a meeting with church leaders and given K4,000.00 to buy materials for the pastor’s house. He was told that the cash was provided by Tom Goodwin on behalf of the first respondent.
81. Billy Vanilo was at the rally. Most people left after the rally and moved to a neighbouring village to be fed. He remained a while and saw Tom Goodwin meeting with Mr Rigena. Tom Goodwin is known to be a strong supporter and coordinator for the first respondent.
82. Govo Jack was at the rally. After it ended, he saw Tom Goodwin meet with Mr Rigena and Andy Duana and hand them some money. The money was given to Boru Gabi the next day to purchase materials for the pastor’s house. Tom Goodwin is known to be a strong supporter and coordinator for the first respondent.
First respondent’s witnesses
83. The first respondent presented three witnesses for ground 6: Tom Goodwin (campaign coordinator), Nau Duana and Jack Lamu. Each was cross-examined.
84. Tom Goodwin did not dispute that he was a strong supporter of the first respondent. He lives in a neighbouring village to Libunakomana. On the day of the rally, church executives came to his house to seek funding for the pastor’s house. He received their request then spoke to his wife and family about it. Later in the day he went to Libunakomana. Before the rally started, he gave the church executives K4,000.00 cash. It was his own money. It was not given on behalf of the first respondent.
85. Nau Duana is from Libunakomana. He is chairman of the project committee for building the pastor’s house. He confirmed approaching Tom Goodwin for financial assistance for the pastor’s house. He and two others went to Mr Goodwin’s house on the morning of the rally. Mr Goodwin later the same day came to Libunakomana and gave them K4,000.00 cash and said it was for the pastor’s house.
86. Jack Lamu’s evidence corroborated the version of events given by Mr Goodwin and Mr Duana. The cash received from Mr Goodwin was for the pastor’s house.
Findings of fact
87. I am satisfied that Mr Goodwin, being a campaign coordinator and strong supporter of the first respondent, was an agent of the first respondent. However, there is no direct evidence to support the gist of ground 6 of the petition: that the K4,000.00 cash provided by Mr Goodwin came from the first respondent, on the understanding that voters would therefore vote for him.
88. I find that:
Has a bribery offence been committed?
90. For the purposes of s 103(a)(iii) of the Criminal Code, though the first two elements of the offence are proven, the third is not as it has not been proven that the K4,000.00 was given by Mr Goodwin 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. I am not satisfied that Mr Goodwin committed bribery under s 103(a)(iii).
91. As for s 103(d), the first element is proven as Mr Goodwin advanced money to Mr Rigena, who received it on behalf of the church. However, the money was not advanced with the intent that it will be applied for any of the prescribed purposes, eg endeavouring to procure the return of the first respondent at the election or the vote of electors at the election. I am not satisfied that Mr Goodwin committed bribery under s 103(d).
Conclusion re ground 6
92. The petitioner has not proven that the first respondent’s campaign coordinator, Mr Goodwin, committed any of the bribery offences alleged in ground 6 of the petition. The question of whether the K4,000.00 cash contribution was made with the knowledge or authority of the first respondent is irrelevant. It has not been proven that the first respondent committed bribery directly or indirectly for the purpose of s 215(1) of the Organic Law. Ground 6 of the petition fails.
CONCLUSION
93. All grounds of the petition have failed. That is a just and sufficient reason, pursuant to ss 212(1)(i) and 212(3) (powers of court) of the Organic Law, to dismiss the whole petition. Costs will follow the event: the petitioner will pay the first respondent’s costs. The second respondent played a minimal and largely superfluous role in the proceedings, so it will bear its own costs.
ORDER
(1) The petition is wholly dismissed.
(2) The petitioner shall, subject to any specific costs orders made during the proceedings, pay the first respondent’s costs of the petition.
(3) The second respondent shall, subject to any specific costs orders made during the proceedings, bear its own costs.
(4) The Registrar shall forthwith refund to the petitioner the security for costs deposited under s 209 of the Organic Law on National and Local-level Government Elections.
(5) The Registrar shall under s 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.
_____________________________________________________________
Elemi Lawyers: Lawyers for the Petitioner
Henaos Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent
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