Waranaka v Dusava [2008] PGSC 25; SC942 (24 September 2008)

SC942

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 18 OF 2008

APPLICATION UNDER S 155(2)(B) OF THE CONSTITUTION
AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL –LEVEL
GOVERNMENT ELECTIONS

BETWEEN:

PETER WARARU WARANAKA
Applicant

AND:

GABRIEL DUSAVA
Respondent

Waigani: Injia, DCJ
2008: 25th September.

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Decision of National Court on an election petition, upholding Petition on ground of bribery - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended)- Challenge to findings of facts and conclusions on mixed fact and law - Exercise of discretion.

PRACTICE AND PROCEDURE- Application for leave to review under s 155(2), Constitution – Review of decision on election petition - Whether preliminary ruling dismissing objection to competency in the course of trial, reviewable on its own – National Court Election Petition Rules 2002 (as amended), r15, Supreme Court Election Petition Review Rules 2002 (as amended), rr 1& 32.

Cases cited:
Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC935,

Counsel:
T Sirae, for the applicant
P Alu, for the respondent

24th September, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to uphold an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the "Petition Review Rules)). It is contested by the respondent.

2. The application relates to a decision made by the National Court sitting at Wewak in which the judge upheld the ground in the Petition relating to bribery, declared void the respondent’s election and ordered a by-election. The proposed grounds of review relate to two parts of the decision:

(a) Dismissal of objection to competency of grounds of petition under s 208 (a) of OLNLLGE. The objection was argued on 15th March 2008 as a preliminary issue in the trial and ruling was made on 19th March 2008.

(b) The final decision on the petition made on 23rd April 2008.

3. The application for leave for review was filed within time. The fourteen (14) days prescribed by r 7 was computed to run from 23rd April 2008 and the application for leave was filed on 5 May 2008. The respondent intended to raise an objection before this Court as to the competency of the part of the grounds of review which relate to the judge’s ruling on objection to competency on the basis that the application for leave for review in respect of that ruling was filed out of time. The respondent quiet correctly did not pursue this argument in Court before me.

4. For purpose of future guidance of practitioners and parties, I wish to clarify the correct procedure to be adopted by an applicant in seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Election Petition Rules) states that an objection to competency of the petition must be dealt with in the course of the trial. A ruling on an objection to competency of the petition which does not result in terminating the proceedings on the petition is not a final decision for which leave for review may be sought: see r 1 and definition of a "Decision" in the Petition Review Rules. A single judge of the Supreme Court is bound by r 1 and the definition of "decision". I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court’s power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling. The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in an application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r 32 is incompetent: see Olga v Wingti (2008) SC 938.

5. In the present case no such application for dispensation is made before me. Therefore I refuse leave in respect of those grounds of review which challenge the trial judge’s dismissal of objection to competency of the petition. They are grounds 1, 2, 3, 4 & 5.

6. The remaining grounds are 6, 7, 8, 9, 10, 11 & 12. They relate to the trial judge’s final decision on the Petition.

7. The principles on grant of leave for judicial review under Div. 1 rr 1-14 of the Petition Review Rules are set out in my decision in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC935, in the following terms:

"When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-

1. Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE: Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC 915.
   
2. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC572.
   
3. The three criteria set out for grant of leave in Aviha Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.
   
4. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -
   

First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC855; Application of Ludwig Patric Shulze (1998) SC572.

Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patric Shulze (1998) SC572 Kelly Kalit v John Pundari [1998] SC569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723; and such that a review of the findings of fact is warranted.

10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases.

11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties."

8. The background circumstances of the case are these. The trial judge dealt with five allegations of bribery. They were identified as Fact No 2 (bribery of Marcus Paringu), Fact No. 4 (bribery of Ingian Noah Kahune), Fact No. 5 (bribery of Alois Maniura), Fact No. 6 (bribery of Oscar Manihao) and Fact No. 7 (bribery of Juliana Saisehunie). Both parties led evidence. The judge found Fact Numbers 4, 5, 6 & 7 were not proven and dismissed the grounds in respect of those alleged facts.

9. The judge found Fact No. 2 proved. In respect of this ground, the judge found on the evidence that on 7th June 2007 at 10 am, the applicant drove into Wamian Village and gave away K50.00 to Marcus. Marcus gave evidence for the petitioner and he was supported by one David Sassingian. Marcus said the applicant told him not to support the petitioner and gave him K50.00 and asked him to "take his money and think of me". He took the money and he showed it to his brothers including David Sassingian. He instructed his wife, his son and daughter to vote for the applicant. They all voted for him.

10. The applicant gave evidence denying the claim and said he did not give K50.00 to Marcus. He said he gave K50.00 to his campaign Committee upon their request to build a grandstand for a political rally at this village. He was supported by Malakai Ipmaningi. Malakai said the petitioner came to see his committee members but the petitioner intervened and asked for money from him to buy rice and tin fish so the applicant gave him K50. The trial judge accepted the evidence of the petitioner.

11. I have read the submissions on these grounds made before Kapi CJ on 21 May 2008 by counsel representing the parties who are the same counsel now appearing before me. Those submissions have been adopted at the rehearing of this application before me. I have considered all the submissions made by counsel before Kapi CJ and the supplementary written and oral submissions made before me.

12. Ground 6 relates to the trial judge’s reference in his judgment to s 215(1) of OLNLLGE and s 103 (1)(a) of the Criminal Code. This ground does not raise an important point of law and lacks merit because in paragraph 11 of the Petition, these provisions are pleaded. The trial judge was correct when he said these grounds are pleaded in the petition.

13. Ground 7, 8, and part of 9 and 11 challenge the trial judge’s acceptance of the petitioner’s evidence against the applicant’s evidence. The judge assessed the evidence on both sides, assessed the credibility and demeanour of their witnesses and made findings of fact. It is difficult for a review Court to overturn findings of fact based on assessment of credibility of witnesses because the review court is not in a better position than the trial judge to assess the performance and demeanour of witnesses and asses the probative value of the evidence they give. The review Court will often defer to the trial judge’s judgment on these sort of matters except where there is gross error manifest on the findings of fact based on the evidence before the Court. I have read the judgment and find no such apparent error. The applicant and Malakai gave contradictory evidence for a start. The applicant denied he gave money to Marcus. Malakai contradicted him. Later the applicant and his lawyer pursued a line of argument that the money was given to the applicant but for a different purpose. I am satisfied that it was open to the trial judge to find that the applicant gave the money to Marcus for the purpose stated by Marcus. I do not see any gross error on the face on these findings of fact on the face of the record of evidence set out and discussed in the judgment. These grounds have no merit and leave is refused in respect of these grounds.

14. The remaining grounds are the first part of ground 9 which relates to finding of intention to bribe Marcus and ground 12 which relates to errors of law. There was no dispute before the trial judge that Marcus was an elector: see paragraph 41 of the judgment. This finding is not challenged in the application. These grounds raise the issue of whether the money given to Marcus was given with the expressed or implied intention of bribing him to vote for him. This is a point of law.

15. One of the main points raised by these grounds arises from the vagueness of the words uttered by the applicant when he gave the money. The applicant did not say "you vote for me" (my emphasis). All he said was "you think of me". The expressed purpose or intended purpose of the payment and the intended effect of the payment on an elector in terms of influencing the elector in the free exercise of his right to vote a particular candidate of his choice in the particular election is an important element of the illegal act of bribery. The law must be carefully and properly applied to proven facts. The campaign period is of course a festive time in PNG political life and when mixed with customary obligations and exchange of valuable items and gifts, money changing hands can be easily taken out of context and purposes misunderstood. What did the applicant mean when he said "you think of me"? Did Marcus and his family members felt influenced and compelled to vote for the applicant by the K50 they received from him? Was the K50 payment sufficient to have an overbearing influence on Marcus and his family members to feel obliged and compelled to vote for the applicant? Was the payment really intended to interfere and did interfere with Marcus and his family’s right to vote freely? Was it safe for the trial judge to reach the conclusion that the proven facts were sufficient to constitute bribery under the provisions of law pleaded? All these questions raise points of law which need to be fully considered. The conclusion reached from the findings of fact is a point of law. This is a narrow issue of law which requires a careful consideration of the elements of bribery and the case law on bribery. I am satisfied this point of law is an important one that needs to be fully considered and determined in the light of the relevant findings of fact and it is not without merit.

16. I am fortified in this view by the approach taken by the judge in structuring his judgment in dealing with the issue of bribery in his judgment. The judge published a 26-page judgment in which the first 14 pages are devoted to discussing the law on bribery and the procedure for pleading bribery. Part D which has the heading "Bribery: a deadly social disease" discusses the statutory provisions and case law on bribery. The examination and analysis of the evidence and finding of fact follow. The usual judicial process of impartial reasoning in a trial would be for the judge to set out the basic elements of the law in this case on bribery, deal with the evidence, make findings of fact and in the end apply the law to the facts and reach a conclusion. In this case, the question arises whether the judge’s discussions and views on bribery at the outset before dealing with the evidence coloured or tainted his conclusion that the payment was intended to bribe Marcus to vote for the applicant and did have that intended effect on Marcus and his family.

17. Ground 10 relates to the judge’s decision to admit evidence on the issue of whether Marcus was an elector. This ground is linked to the challenge to the judge’s ruling on objection to competency of the grounds pleaded. It is not open to the applicant to raise this issue on review. Leave is refused.

18. I am satisfied that the first test in Jurvie v Oveyara have been met in respect of part of ground 9 which raises point of law and whole of ground 12. I grant leave for review in respect of those grounds. Leave is refused in respect of grounds 1, 2, 3, 4, 5, 6, 7, 8, the second part of ground 9 which refers to finding of fact, ground 10 and 11. Costs of this application shall be in the cause of the substantive application.

Henaos Lawyers: Lawyer for the applicant
Harricknen Lawyers: Lawyer for the respondent