Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009)

SC980

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO 18 OF 2008

APPLICATION UNDER SECTION 155 (2) (b) OF THE CONSTITUTION

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

BETWEEN:

PETER WARARU WARANAKA
Applicant

AND:

GABRIEL DUSAVA
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi, Lay, Gabi, JJ.
2008:26th November
2009: 06th March and 8th July

PRACTICE & PROCEDURE - Application for review under s. 155(2) (b) of the Constitution – Application out of an Election Petition – Appeal specifically prohibited - Difference between review and appeal- Important to understand and appreciate difference to avoid appeals in guise of review –Appeal as of right granted by statute – Appellate court conducts hearing de novo and has power to go into merits of the decision and substitute with own findings – Review concerned with decision making process and its integrity but not the decision itself –Relevant questions inter alia are, jurisdiction and authority of the decision maker, any error on the face of the record, and the reasonableness of the decision.

NATIONAL ELECTIONS – Election Petition based on allegation of bribery – Standard of proof similar to criminal standard – Proof beyond reasonable doubt – Petitioner has burden of proof throughout to establish each and every element of the offence of bribery to succeed – Failure should result in dismissal of petition - Court under duty to apply usual tests for credibility of witnesses before accepting or rejecting a witness’ testimony .

EVIDENCE – Assessment of – Logic and common sense and consistency in evidence important tests for credibility of witnesses and their testimony – Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense basis for rejection of evidence.

Papua New Guinean Cases Cited:

Moi Avei and Electoral Commission v. Charles Maino [2000] PNGLR 157.
Ludwig Patrick Schultz: A Review Pursuant to Constitution s 155(2)(b) (1988) SC572.
Baki Reipa v. Yuntivi Bao [1999] PNGLR 232.
Robert Kopaol v. Philemon Embel [2003] SC727.
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298.
Peter Wanis v. Fred Sikiot & The State (1995) N1350.
Yange Lagan & Ors v. The State (1995) N1369.
The State v. Peter Malihombu (2003) N2365.
Rimbink Pato v. Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeko and Masket Iangalio v. Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea (2003) N2455.
Michael Tenarum Balbal v. The State (2007) SC860.
Devlyn David v. The State (2006) SC881.

Text Books Cited:

JA Gobbo, D.Byrne & JD Heydon, Cross on Evidence, 2nd Australian ed
McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London)

8 July, 2009

1. BY THE COURT: In the 2007 National General Elections, Mr. Peter Wararu Waranaka won back his Seat in Parliament for the Yangoru-Saussia Open Seat. Not being satisfied with that result, Mr. Gabriel Dusava, one of the unsuccessful candidates, filed a petition against Mr. Waranaka’s election victory. The National Court heard and determined the petition in favour of Mr. Dusava and ordered a bi-election. That was on the basis of one allegation of Mr. Waranaka bribing one of Mr. Dusava’s strong supporters by giving him K50.00.

2. Being aggrieved by the decision of the National Court, Mr. Waranaka, filed an application for review of that decision with leave of this Court. In support of his application, Mr. Waranaka claims essentially that the learned trial judge erred in:
   
   • (a) not applying the correct and relevant principles governing the assessment of the credibility of witnesses;
     
   • (b) failing to state and ensure that he was satisfied on the required standard of proof, namely proof beyond any reasonable doubt that the alleged offence of bribery was committed; and
     
   • (c) failing to allow himself to be satisfied beyond reasonable doubt as to the intention or purpose for Mr. Waranaka giving an elector K50.00.
     
3. Additionally, Mr. Waranaka, claimed and argued before us that, no reasonable tribunal faced or placed with the same set of facts and circumstances could have arrived at the same conclusion as did the learned trial judge.
   
4. In response, Mr. Dusava through his lawyer, Mr. Alua argues that, the learned trial Judge did not fall into any error. Instead, the learned trial Judge reminded himself of the correct and relevant principles as well as the relevant practice and procedure in election petitions based on an allegation of bribery and properly applied them to the case before him. Further, he argued that, any reasonable tribunal faced and or placed with the same set of facts and circumstances could have arrived at the same conclusion as did the learned trial Judge.
   

Relevant Issues

5. The foregoing arguments of the parties gives rise in our view to the following issues for our consideration and determination:
   
   • (a) Did the learned trial Judge apply the correct and relevant principles governing the assessment of the credibility of witnesses?
     
   • (b) Did the learned trial Judge state and ensure that he was satisfied on the required standard of proof, namely proof beyond any reasonable doubt that the alleged offence of bribery was committed?
     
   • (c) Did the learned trial Judge allow himself to be satisfied beyond any reasonable doubt as to the intention or purpose for Mr. Waranaka giving an elector K50.00? and
     
   • (d) Could a reasonable tribunal faced or place with the same set of facts and circumstances as they were before the learned trial Judge, arrive at the same conclusions as did the learned trial Judge?
     
6. The first three issues can be considered as one because they concern the relevant principles on the burden and standard of proof on the charge or allegation of bribery and the application of those principles. The determination of those issues will help determine the remaining issue. Thus we will consider and determine the issues in that order.
   

Relevant Principles

(i) Principles Governing Review

7. We note that, all of the issues before us concern some establish legal principles. Accordingly, we consider it more appropriate, that we should start with a consideration and statement of the relevant principles and their application. This we will do. But before we get into that, we consider it appropriate, that we should remind ourselves and we do so that, this is a review as opposed to an appeal.
   
8. The unanimous decision of the Supreme Court in Moi Avei and Electoral Commission v. Charles Maino[1], clarified and stated the difference between an appeal and a review in the following terms:
   

"It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisor jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.

As Lord Brightman stated in R v Hillingdon London BC. ex. P. Pulhofer (1986 AC484)

‘where .....fact is left to the judgment of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...’

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s.220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process".

9. We endorse these views as a correct statement of the law and add that a review should only be granted where there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record[2]

10. Bearing this important difference in mind, we remind ourselves that, we are here not concerned with the correctness or otherwise of the findings of fact as in an appeal which entitles the appellate court to conduct a hearing de novo on the record and substitute its own finding, if need be, but it concerns correctness of the procedure adopted and applied to arrive at the decision, the subject of this review.
    

(ii) Principles Governing Election Petitions Based on Bribery

11. Carefully noting the above guiding principles, we now turn to a statement of the relevant principles governing election petitions based on an allegation of bribery as in this case.
    
12. Going by the many decisions of both this and the National Courts, the law in relation to the burden of proof in election petitions based on an allegation of bribery is well settled. The standard of proof in such cases is the higher criminal standard of proof, namely proof beyond any reasonable doubt, which a petitioner must discharge in order to succeed in his petition.
    
13. This Court in its decision in Robert Kopaol v. Philemon Embel[3] restated the law and elaborated on it as follows:
    

"It is well recognized that petitioning on a ground of bribery or attempted bribery against a successful candidate is, in fact, a charge that the election should be overturned because a criminal offence has been committed. It is equally well known that the proof of only one such offence by a successful candidate is sufficient to invalidate an election. This applies even in respect of an unsuccessful attempt at bribery.

But a petition on such a ground is a serious challenge to the electoral process and the rights of the people to elect their representative. An allegation of bribery by the successful candidate is a charge of a criminal offence. Apart from the direct penalty that may be imposed upon conviction of such a charge, there are consequential penalties set out in s 104 of the Criminal Code ...

It is not surprising that the standard of proof required in an election petition is, to all intents and purposes, the same as in a criminal court."

14. Towards the end of its decision this Court in the above case went on to endorse the following views of Frost CJ (as he then was) in Neville Bourne v. Manasseh Voeto[4]:
    

"If the petition is based upon an independent act of bribery or intimidation as opposed to general bribery or intimidation, before such an election is set aside it should be proved to the entire satisfaction of the Judge ... [and] the Judge before defeating an election should be very sure. He ought not to say very sure, but ought to be sure; he ought to have reasonable assurance that the ground was really made out."

15. We agree with the soundness and correctness of this statement of the law. We add that, a final decision on whether an allegation of bribery has been made out depends very much on the consideration and application of the principles concerning the burden of proof and its discharge by the party who bears it. There is not much argument that in nearly all cases, it is well accepted that "he who alleges must prove it." Similarly, in criminal cases, it is well accepted that, the prosecution has the legal burden throughout to establish the allegations or charges against an accused person beyond any reasonable doubt, something which s.37 (4) of the Constitution protects.
    
16. The difficulty however arises on the question of whether the burden of proof shifts? One of the leading authorities in the law of evidence, Cross On Evidence[5] carefully considers the arguments for and against the question of whether or not a legal burden placed in a proponent shifts. The learned authors then conclude in these terms:
    

"Perhaps those who contend that the legal burden on a particular issue never shifts have the better of this battle of words. They can say that, even in cases most favourable to the view that it may shift, ... the sounder analysis suggest that there is no shifting".

Application of Principles/Guidelines

(a) Assessment of Credibility of Witnesses, their Evidence and Finding of the Relevant Facts

17. Duly noting the foregoing guiding principles, we now turn to a consideration of whether or not the learned trial Judge correctly noted and applied these principles, which are the subject of the first three issues before us. As we have already noted, these issues concern the issues of burden of proof and the relevant procedure to be adopted in determining whether or not the parties have adequately discharged the respective burdens respectively placed in them.

18. There is no dispute between the parties and we note that, the learned trial Judge correctly noted that, Mr. Dusava as the petitioner, had the burden of proving beyond any reasonable doubt his allegation of bribery against Mr. Waranaka. What is in issue and what remains for us to determine is, whether the learned trial Judge adopted the correct procedure and applied that to arrive at the conclusion to ultimately find that, Mr. Dusava established his allegations against Mr. Waranaka and that he was so satisfied to the requisite standard.

19. In his pleadings in the petition, Mr. Dusava pleaded that, Mr. Waranaka gave K50 to a Marcus Paringu and told Mr. Paringu to take the money and think of him (Mr. Waranaka). Further, Mr. Dusava alleged that Mr. Waranaka gave the money with intent to influence Mr. Paringu to vote for Mr. Waranaka and hence committed an act of bribery.

20. At the trial, the only evidence adduced by Mr. Dusava concerning the K50 bribery allegation came from Mr. Paringu and supported almost word for word by another witness, a David Sassingian. Their evidence was that Mr. Paringu is a strong supporter of Mr. Dusava. On 7th June 2007 at about 10.00am, Mr. Waranaka drove to Wamain Village during the campaign period, where Mr. Paringu and others were building a platform for politicians to use for their political campaigns.

21. When Mr. Waranaka got to that village, he stopped his vehicle and went to where Mr. Paringu was and said words to the effect, "why are you not staying with (supporting) us little people and you are staying with (supporting) Dusava?" Mr. Paringu did not know what to say or do and did not respond. At that stage, Mr. Waranaka moved closer to Mr. Paringu and slipped K50 in cash into Mr. Paringu’s hand, stared at him and said words to the effect, "You hold or take this money and think of me." Mr. Paringu took the money and showed it to 5 other men. He later spent the money and told his children and wife to vote for Mr. Waranaka and they did but he voted for Mr. Dusava. Mr. Paringu claimed that he wrote down in a piece of paper the exact words, Mr. Waranaka spoke but was not able to produce the notes.

22. Mr. Waranaka denied these allegations and went into evidence, where he and a Mr. Malakai Hipmaningi gave evidence in Mr. Waranaka’s defence. In their evidence, they admitted, that Mr. Waranaka drove to Wamain Village on the relevant day and time, where Mr. Paringu and others were building an election campaign platform. He went and stopped his vehicle beside Mr. Hipmaningi and had a conversation with him. At that time, Mr. Paringu approached Mr. Waranaka and asked for a K50 to buy some food for the youths who were working on the building of the platform. Mr. Waranaka got a K50 out to give to Mr. Hipmaningi but Mr. Paringu stepped up and got the K50. Equipped with the K50, Mr. Paringu went to a nearby trade store and bought rice and tinned fish. Under cross-examination, Mr. Waranaka maintained, that he had not intended to give the money to Mr. Paringu at all and certainly not to bribe him.

23. The learned trial Judge correctly noted that, some of the material aspects of the allegation were not in issue. This included Mr. Waranaka driving to Wamain Village on the day and date alleged in the petition, a K50 coming out of his hands and going to Mr. Paringu. There was also no issue that, Mr. Paringu was an elector. Given, that Mr. Waranaka, correctly through his lawyer, Mr. Sirae abandoned arguments against the learned trial Judge’s findings on this issue. The only serious issue was on how the K50 landed in Mr. Paringu’s hands and the intention behind Mr. Waranaka giving the money. Clearly there were two versions of facts on the facts that were in issue between the parties. Which version the Court should accept was dependant on the credibility and reliability of the witnesses the parties respectively called and their respective evidence.

24. When it comes to determining the credibility of witnesses, it is settled law that a primary judge of the facts is usually said to be in a better position to determine that issue because he sees the demeanor and the performance of the witnesses in the witness box. As such, a reviewing authorities such as this Court, is usually slow to interfere with the findings of a primary judge of the facts, except in the clearest of cases in which the primary judge has fallen into an obvious and or serious errors that vitiates his decision. We remind ourselves of that well accepted legal position.

25. As this Court observed in its decision in Michael Tenarum Balbal v. The State[6] the:

"... way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts... This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult..."

26. The process of assessing the credibility and reliability of witnesses and their testimonies, as we noted, starts with the prosecution or the petitioner in an election petition. After all, as the well known statement in law states, he who alleges as the overall burden to prove what he or she alleges.

27. In the case before us, learned counsel for Mr. Waranaka, Mr. Sirae argued in the Court below for a rejection of the petitioner’s version of the relevant facts on the basis that, the petitioner’s witnesses were not credible. This was based on the poor demeanor of witnesses, their evidence being illogical and not consistent with common sense, inconsistencies and simply their story was an incredible one.

28. We note that a number of important facts were uncontested. First, Mr. Paringu was a long established and known strong supporter of Mr. Dusava. Secondly at the relevant polls, Mr. Paringu gave his first preference vote to Mr. Dusava. Thirdly Mr. Paringu told his wife and children to vote for Mr. Waranaka and they allegedly did, even though no evidence showed that those voters gained from the alleged bribery. Fourthly, the amount of money used to allegedly bribe Mr. Paringu and his family was only K50. Further, Mr. Waranaka, was the then sitting member for Yangoru-Saussia Open Seat in Parliament, defending his seat. Furthermore, Mr. Paringu and Mr. Sassingian gave their evidence in a way that was word for word, giving the appearance of being coached with prior discussion and agreement as to what to say. Finally, the alleged bribery took place in the presence and witness of others.

29. These undisputed facts do raise some very important questions from a logical and common sense view point. Did Mr. Waranaka seriously mean to bribe his political opponent’s strong supporter with only K50, in the presence and witness of others? What caused Mr. Waranaka to bribe a strong supporter of his political opponent by almost a negligible amount of money and risk being caught and prosecuted for it, particularly when cases of bribery these days in elections and all other cases involve a lot of money and or big favours? What caused, Mr. Waranaka to think that he could bribe Mr. Paringu? Did Mr. Waranaka intend to set himself up to be caught and prosecuted criminally and give the basis for his opponents to bring a successful petition against his election win, in the event that he won back his seat? If not, was he out of his mind or not thinking properly at the time and if so why? What kind of a man was Paringu to be bribed by a mere K50? What caused Mr. Paringu to tell his wife and children who did not gain from the alleged bribery to vote for Mr. Waranaka? Finally, how did Mr. Paringu know that, his wife and children voted for Mr. Waranaka? The ballot is secret. If the family members told him how they voted that would be hearsay. Although s.217 of the Organic Law requires there not be a strict adherence to the rules of evidence, hearsay must be received with care, giving consideration to the weight which can be placed upon it by reference to other admissible evidence which might indicate the weight or otherwise of the hearsay. If hearsay is to be relied upon there must be a clear explanation of why it was considered reliable.

30. Another aspect of the petitioner’s witnesses’ testimonies also raises some interesting questions. This as to do with Mr. Paringu going with a piece of paper and a biro or a pen and immediately recording words allegedly spoken to him by Mr. Waranaka. Why or what caused Mr. Paringu to go ready with a piece of paper and a pen or a biro? Was it his usual habit? If so when did that develop and how? What caused him to immediately write down the words allegedly spoken to him by Mr. Waranaka? How was it possible for Mr. Paringu and Sassingian to give the same evidence almost word for word? Did they both write down the exact words Mr. Waranaka allegedly uttered to Mr. Paringu, and if so, why? Mr. Paringu provided no answers to any of these questions or explained the lack of answers. His Honour did note that the explanation only came out in cross-examination. That in itself raised the issues of why it did not come out in chief, was counsel unaware of the claim, was it a recent invention?

31. The above questions go into the credibility of the petitioners witnesses testimony and hence his version of the relevant facts. In our view, these questions would have immediately put the learned trial Judge on notice that, the credibility of the petitioner’s testimony had to be carefully tested. But this is how the learned trial Judge, with respect, dealt with the petitioner’s witnesses:

"The Court is of the view, with respect, that Paringu and Sassingian did well when they gave evidence. Their overall demeanor was impressive. Paringu appeared to contradict his evidence on who was given the first and second preference but I accept that he gave his first preference to the First Respondent after he received K50.00.

In any event, it would not matter if he did indeed give his second preference to the First Respondent. The crime of bribery is complete as soon as money passed from the First Respondent to Paringu and for that matter, a second preference vote is still proof that Marcus Paringu was influenced by the money he received from the First Respondent. He clearly stated that he was undecided on his other preferences until the alleged bribery. The argument on how he voted is, therefore, unnecessary.

...I decline to underestimate the intelligence of Paringu and Sassingian. They are villagers but it is not unusual and unreasonable nowadays for villagers to have their pens, biros and something to write on. I remember my own father, who did not attend any of the schools we have now, keeping a notebook in which he wrote his notes. I am talking about the sixties and seventies.

Secondly, the National Election was a major event. The election in question was preceded by adequate campaign and awareness on bribery, among other things, by various institutions, including the Fourth Respondent. It is expected, therefore, that people would have been generally aware that bribery by candidates was not allowed. It does not surprise me, consequently, that the witnesses decided to quickly write down notes after the First Respondent had driven away. What they did assisted them to recall the exact words that were said as reproduced in their respective affidavits.

Furthermore, the witnesses’ evidence on their note taking emerged only during cross-examination. Mr Sirae’s attempt to discredit and undermine the witnesses’ recollection of the words uttered by the First Respondent proved counter productive when the witnesses promptly explained that they wrote the words down. It was Mr Sirae who asked whether the exact words were written down. The answer to his was in the affirmative. It is not unreasonable but a little too much in the circumstances for Mr Sirae to demand production of the notes. At the first instance, the witnesses did not consider it necessary and did not prepare for it."

32. As can be seen, the learned trial Judge did not give any serious consideration to any or all of the questions we have noted and stated at paragraphs [28] to [29]. His Honour instead, found that Mr. Paringu and Mr. Sassingian’s demeanors were good and decided to accept them as truthful witnesses. With respect, His Honour did that without indicating how he arrived at that finding. He did not point to any aspect of their performance in the witness box that was supportive of his finding. In recent years, the unreliability of demeanour by itself as a test of truthfulness has been established in many jurisdictions.

33. Modern psychological research supports the view that visual observation of a witness to determine whether or not he or she is telling the truth is no more accurate than a guess. In the text The Law and Psychology 2nd edition 1993 by Spencer and Finn had at pp 280-281 the following summary of research is given:

"At the risk of oversimplification, the conclusions of a large body of psychological research may be summed up as follows. In tests designed to discover how good people are telling whether another persons lying, subjects rarely manage a success rate that is much above chance level, or what they would achieve by shutting their eyes and ears and making a guess. This is because the signs that are frequently associate with lying-like hesitancy, blushing, and a reluctance to look the questioner in the eye-are signs, not of lying but of stress. And if a witness ins under stress, this may be either because he is lying, and finding it embarrassing and awkward to do so, or because he is finding it embarrassing and awkward to tell the truth. Sometimes surrounding circumstances may make it obvious that the embarrassment of the witness must tem from one source rather than from the other, but often-as with a child who has to give evidence about suffering an indecent assault allegedly committed by a relative, for example – the stress could as easily come from one source as the other. The most that can be said for the value of the demeanour of a witness as an indicator of the truth is that it is one factor, which must be weighed up together with everything else. It would be quite wrong to promote it to the level where we use it to accept or reject the oral testimony of a witness in the face of other weighty matters all of which point the other way".

34. Judicial doubt at high levels has also been cast upon the ability of a judge to interpret the demeanour of a witness correctly. In the article "Discretion" in (1975) 9 Irish jurist 1 at 10 Sir Brian McKenna said:
    

"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witnesses demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reasons to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem to me very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the truth from the false by these more or less subjective tests, I say which story seems to me the more probable, the Plaintiff’s or the Defendant’s."

35. Lord Devlin is cited as approving those words of Justice McKenna in the Scottish Law Commission report on Hearsay Evidence in Criminal Proceedings (No. 149) at Paragraph 3.8 in the following terms:
    

"the great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated. It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of a particular witness. On that I would adopt in their entirety (this being the highest from of judicial concurrence), the words of Mr Justice McKenna".

36. Here, obviously, the learned trial Judge did not get into any proper analysis of the petitioner’s witnesses and their evidence, before accepting them as truthful witnesses and accepting them.

37. The learned trial Judge did give a brief consideration to only two aspects. The first was the inconsistency in Mr. Paringu’s own testimony. However, as can be seen from the foregoing quote from His Honour’s judgment, we note with respect that, His Honour’s consideration of the issue was in a quick and dismissive way without any full and proper consideration. He then held that, the issue was insignificant by holding that, the contradiction did not matter and proceeded effectively to finding that "the crime of bribery was complete as soon as money passed from the First Respondent [Mr. Waranaka] to Paringu." But that was not the point of the argument for Mr. Waranaka.

38. There is a long list of case authorities on the issue of contradiction in a witness’ own testimony or when compared with the evidence of witnesses called by a party. This Court in its recent decision in Devlyn David v. The State[7] correctly stated the principles in these terms at paragraph 154:

"In any criminal trial, if there are any inconsistencies in the evidence adduced by the State, it is the duty of the trial judge to identify them, assess their significance and give reasons for regarding them as significant or not, as the case might be."

39. We add that, unless any inconsistencies are properly and reasonably explained and are insignificant, inconsistencies can form the foundation to find contradictory witnesses and their testimonies not credible and therefore unreliable. Here the learned trial Judge did not, with respect, find and did not have any proper and reasonable explanation for the inconsistency, as to why oral evidence should be different to written evidence and why it should be preferred to written evidence. Instead, His Honour took into account irrelevant factors and in so doing he fell into serious error.
    
40. Another aspect of those comments by his Honour is the identification of the elements of the offence which have to be proven in respect of each ground under consideration. As was also said in Devlyn David v State (2006) SC881, a trial judge should identify the elements of the offence and establish whether each element is proven by the evidence. In this case, prior to analyzing the evidence, his Honour does not specifically identify that there are two elements to the offence on the facts before him. His Honour does say at paragraph [6]:
    

"Procedurally, the Petitioner is strictly required to prove each of the elements of bribery under section 103".

41. It is of course far more than a mere procedural matter that each of the elements of the offence be proven. It goes to the very foundation of the constitutional guarantee of a fair trial.

42. In the judgment, his Honour sets out part of s.103 omitting subsections 103(b), (c),(e),(f) & (g) without comment, but we take it that his Honour considered those subsections irrelevant. The remaining subsections contemplate 3 factual situations under s.103(a) and a further 3 under s103(d). His Honour does not identify which of those 6 factual circumstances might have to be proven in the case. He does not then identify:
    

"...that intention is an integral part of the offence. Such phrases as offering gifts, benefits or inducments ‘on account of’ or ‘in order to induce’ or ‘with the intent that’ are all phrases that show that the purpose of offering the inducement is an element of the offence."[8]

43. His Honour therefore fell into error at paragraph [49] of his judgment when he said the words set out at paragraph [42]. We say that his Honour fell into error in that statement because:
    
    1. He does not there identify the element of intention before coming to the conclusion that the offence was proven. He does address this issue some 10 paragraphs later at paragraph [58].;
       
    2. He takes into account an irrelevant consideration, since the effect on the recipient of the giving of the money is not an element of the offence.
       
44. The second aspect of Mr. Dusava’s witnesses’ evidence, the learned trial Judge gave some consideration to was in relation to Mr. Paringu going equipped with a pen or biro and a piece of paper. In relation to that, the learned trial Judge again, with respect, also dismissed the argument built around that part of the evidence. His Honour did that on the basis of certain findings of fact. First, His Honour found that, "it is not unusual and unreasonable nowadays for villagers to have their pens, biros and something to write on". No evidence was before the learned trial judge that supports this finding of fact. Rather, His Honour relied on his peculiar knowledge of his father’s habit of keeping a pen or biro and taking and keeping of notes, which was not in evidence in the normal and usual way and not a matter of which judicial notice can be taken. Secondly, the learned trial judge found that, Mr. Paringu quickly wrote down notes after Mr. Waranaka had driven away and that helped him to recall the exact words. Yet the paper on which the words were allegedly recorded was not produced in evidence. Mr. Paringu’s evidence was not exactly in the terms of this finding and the learned trial Judge failed to state the basis for his finding. Thirdly, Mr. Paringu did not testify as to why he went with a pen or biro and a piece of paper to write on and what caused him to write down the words allegedly spoken by Mr. Waranaka. Further, neither Mr. Paringu nor Mr. Sassingian or any other witness called by Mr. Dusava gave any evidence of their usual habits in terms of taking pieces of papers with them and noting down what people say to both or either of them. Fourthly, Mr. Paringu did not testify to being aware of any of the campaigns against bribery and or corruption. Despite that, the learned trial Judge made findings of fact without the evidence supporting them. Finally, the learned trial Judge criticized Mr. Sirae counsel for Mr Waranaka for questioning Mr. Paringu about Mr. Paringu’s alleged note taking. However, the transcript does not support that. It was Mr. William for the Electoral Commission that asked the relevant questions. This demonstrates that the learned trial Judge may not have carefully noted the testimonies and submissions.
    
45. After having made these errors which we find are fundamental, the learned trial Judge then proceeded to treat Mr. Waranaka and his witnesses evidence as follows:
    

"The First Respondent has failed to persuade me. His explanation in his affidavit consists of two sentences only. In cross-examination, the First Respondent and Malakai contradicted each other on who received the K50.00. The First Respondent denied giving the money to Paringu directly. Malakai said he gave the money to Paringu, which is consistent with what Marcus and Sassingian have been saying all along. In a bribery allegation, the identify of the person who receive a bribe is relevant. It does not help the First Respondent when he and his witness cannot agree on who the money was given to. I find as a matter of fact that the First Respondent gave K50.00 to Paringu."

46. Our careful and close examination of the transcript of the relevant evidence and the relevant affidavits reveals that, all that Mr. Waranaka said in is affidavit was that, he did not give the K50 to Mr. Paringu but to his committee. The following questions and answers under cross-examination of Mr. Waranaka add further light to the issue in this way:
    

"Q. Do you agree that there is discrepancy between what you have stated in your affidavit and the affidavit of the witness?

A. No, ... The money was intended for Malaki Hipmaningi and Mr. Marcus Paringu stepped forward to accept the money on behalf of the group.

17. So witness you are suggesting that Mr. Hipmaningin lied under oath?
    
1. No, ... As I have said, the money was intended for the group. It was given to Malakai, instead Mr. Marcus Paringu stepped forward to received the money."
   

47. Mr. Hapmaningin’s affidavit is in terms of Mr. Paringu asking for a K50 for and on behalf a group of youths who were there building the campaign platform so they could buy some rice and tinned fish.
    
48. There is no record of the learned trial Judge giving any consideration to this part of the evidence. If His Honour did that, he would have easily come to the conclusion that, there was no real inconsistency and if there was, it was clearly explained by Mr. Waranaka in his testimony under cross-examination which was a reasonable and logical one. The explanation makes it clear that, Mr. Paringu helped himself to the K50.00 as opposed to Mr. Waranaka out of his own volition giving it specifically to Mr. Paringu with intend to bribe him. That inference was open in view of the uncontested fact that, Mr. Paringu was a strong supporter of Mr. Dusava. So how could Mr. Waranaka have given the money to his opponents’ supporters when his own supporter Mr. Hipmaningi was there? If he was to give the money to anyone who was there building the campaign platform, he would have ensured to give it to his own supporter or man as opposed to his opponents’. The learned trial Judge did not give any consideration to any or all of these questions. In the circumstances, we find that the learned trial Judge fell into further serious error.
    

(b) Intention or Purpose For Giving the Money

49. After making the above error, the learned trial Judge went on to consider the question of what was the purpose for giving the money. His Honour addressed that issue as follows (at paragraph [58]):
    

"The purpose for which the money was given remains to be determined. The money, according to the defence, was said to be for work done on a grand stand. The First Respondent admitted, however, that he never used the grand stand which was indeed built for the petitioner. I cannot understand how the First Respondent would give money for work on a grandstand that was not built for him. Secondly, Malakai was not an impressive witness. He appears to me to be an intelligent person but he took his time when questioned. I have the impression that he gave calculated answers.

Furthermore, I do not accept that the First Respondent was being accompanied by one or two persons in the vehicle as suggested by the First Respondent and Malakai. I accept Paringu and Sassingian’s evidence that many people were in the vehicle. The First Respondent would have been campaigning then. It was a Government vehicle and by reasonable inference its fuel was paid for and supplied by the State. Many supporters would have been on that vehicle at the relevant time. For all of these reasons, I accept the evidence of Paringu and Sassingian on the propose for which the money was given.

...

The First Respondent drove towards Paringu and said: "Hei, olsem wanem na yu no laik kam stap wantaim mipela ol liklik lain na stap wantaim Dusave?" (Hey, why do you not want to stay (support) with us little people and you stay with (support) Dusava?) Paringu did not respond. The First Respondent then moved closer to him and slipped K50.00 cash into his hand, stared at him and said: "Yu holim dispela moni na tingim mi" (You take this money and think of me.)

The First Respondent’s utterances clearly show that he gave K50.00 to Paringu and asked him to vote for him in the elections....

I am satisfied ultimately, that the First Respondent committed bribery when he gave K50.oo to Paringu with instructions for Paring-u to support and vote for him in the 2007 General Elections."

50. The learned trial Judge did not give careful consideration to the credibility of the Petitioner’s two witnesses and the questions raised by the evidence which we have noted, placed unexplained reliance on the demeanor, does not say why the discrepancy between the written and oral evidence of the Petitioner’s witnesses was not significant and did not specifically identify intention as an element of bribery before declaring bribery was committed immediately on money changes hands; took into account an irrelevant consideration and apparently mistook the import of the Respondent’s evidence. His Honour then decided to reject Mr. Waranaka’s evidence as incredible and unreliable because:
    

(a) Mr. Waranaka did not use the platform which Mr. Waranaka said was built for him by reason of which, he gave the money;

(b) Mr. Hipmaningin was not an impressive witness and gave calculated answers;

(c) He (the learned trial Judge) decided to accept Mr. Dusava’s witnesses’ evidence as to the number of people present both in Mr. Waranaka’s vehicle and at Wamain Village.

51. With regard to the first basis for the learned trial Judge rejecting Mr. Waranaka’s evidence, we note there is no record of Mr. Waranaka admitting that the campaign platform that was being built was his. What is clear is that, the platform was being built for political candidates to use and he gave some money toward that. There was no obligation for him to use the platform. In relation to the second basis, we note, there is no demonstration and or identification of the evidence His Honour considered was calculated and how His Honour arrived at the conclusion that, they were calculated. Finally, as for the learned trial Judge’s decision to reject Mr. Waranaka and his witnesses’ evidence because His Honour accepted Mr. Dusava and his witnesses’ testimony, we find here His Honour with respect fell into yet further serious error. A witness’ evidence can not simply be rejected because another witness’ testimony has been accepted. Rather, each witness’ testimony has to be considered on their own merits applying the well established tests for credibility such as consistency in the testimonies; the testimony being consistent with common sense and logic and fairly putting ones case to the opponent in cross examination amongst other tests for credibility and reliability.
    
52. Having rejected Mr. Waranaka’s and his witnesses’ evidence, the learned trial Judge proceeded to find that words allegedly spoken by Mr. Waranaka "clearly show that he gave K50.00 to Paringu and asked him to vote for him in the elections." On that basis, the learned trial judge ultimately found that "that the First Respondent committed bribery when he gave K50.00 to Paringu with instructions for Paringu to support and vote for him in the 2007 General Elections."
    
53. There was no direct evidence that, Mr. Waranaka gave instructions in the terms the learned trial Judge found. His Honour arrived at his finding only by way of inference from the words allegedly spoken by Mr. Waranaka. The key words or phrase, if indeed Mr. Waranaka said those words was "think of me" which was part of the phrase in Pidgin "Yu holim dispela moni na tingim mi" or in English "You take this money and think of me."
    
54. How did those words amount to an instruction from Mr. Waranaka to Mr. Paringu for the latter to support and vote for him in the 2007 General Elections is not clearly explained any where in His Honour’s reasons for decision. As the Chief Justice noted in his ruling in the leave application in this matter, the political campaigning period is a period marked with a lot of festivities and activities. It is a time when a lot of customary obligations are met and often time’s money and other goods exchange hands. Most of these are to strengthen existing relationships in some cases and in others, creating and entering into new ones. In these settings, leaders are often expected to take the lead, throw up parties and help meet or reimburse expenses incurred by their people or supporters. Care must therefore be exercised to ensure that genuine gifts and meetings of customary obligations with words spoken are considered in their proper context to avoid any misunderstandings and taking matters out of context.
    
55. In the present case, the learned trial Judge was duty bound to indicate what factors he took into account before arriving at his decision but he did not do that. There were two conflicting versions of the evidence before the learned trial Judge. As we noted already, Mr. Dusava as the petitioner had and did have the burden throughout to establish beyond any reasonable doubt that, the purpose for giving the money was to bribe Mr. Paringu into changing his long existing support for Mr. Dusava and vote for him. Again as we have already noted, the learned trial Judge erred in not properly analyzing the evidence called by and for Mr. Dusava. His Honour with respect, merely accepted without more, what Mr. Dusava’s witnesses said was the intention behind Mr. Waranaka giving the money and uttering the words he allegedly spoke. The learned trial judge was duty bound to draw his own inferences based on appropriately identified and established primary facts and conclusions base on the primary facts and the inference drawn there from. In other words, the learned trial Judge was duty bound to provide the basis for accepting the inferences, but with respect, we find that His Honour failed to do that and chose instead to go along with what Mr. Dusava’s witnesses said without providing any good reason. That failure resulted in a failure to find that the version of facts given by Mr. Dusava’s witnesses defied any sense of logic and common sense. Also, there was a serious inconsistency in their evidence, which the learned trial Judge readily dismissed without any serious and proper consideration. Even if the learned trial Judge did expressly state that he was satisfied beyond any reasonable doubt, which he did not, such a statement would have no foundation because there was no evidence to support it.
    

(c) Standard of Proof: Proof Beyond Reasonable Doubt

56. In the circumstances, we are of the view that, after the learned trial Judge made the fundamental errors we have already identified; His Honour fell into further error in arriving at the ultimate conclusion that, Mr. Dusava established his allegation of bribery. We further note that, this His Honour fell into such error when His Honour failed to make it clear in any way that he was satisfied on the correct and highest standard of proof, namely proof beyond any reasonable doubt. Having come to the conclusion that the offence was established, without identifying precisely the elements of the offence which had to be proven (at [49]) His Honour with respect, was duty bound to state and in fact be satisfied beyond any reasonable doubt that, the disputed essential elements of Mr. Waranaka giving K50 to Mr. Paringu and, that was with intent to bribe Mr. Paringu, a strong supporter of Mr. Dusava, into changing his support and voting for Mr. Waranaka, were established.
    

(d) Whether a reasonable tribunal could have arrived at the same conclusion?

57. On the basis of the foregoing observations, we are of the view that no reasonable tribunal faced with the same set of facts and circumstances would have arrived at the same conclusion as did the learned trial Judge. A reasonable tribunal could have found that:
    

(a) There were inconsistencies in the prosecutions case that were not properly and reasonably explained;

(b) The witnesses called by the prosecution gave an account or version of facts that did not conform with any sense of logic and common sense or in other words an account that was not credible;

(c) There was no direct evidence that Mr. Waranaka intended to give the K50.00 to Mr. Paringu contradicting the direct evidence on point coming from Mr. Waranaka; and

(d) There was no clear and direct evidence as to the intent and purpose of the alleged giving of the money to Mr. Paringu and the other evidence did not support only an inference that the intention and purpose behind giving the money was to bribe Mr. Paringu.

58. Accordingly, in all of the circumstances, we are satisfied that Mr. Waranaka made out his case for the grant of his review. We therefore uphold and grant the review. Consequently, we would quash the decision of the National Court sitting as the Court of Disputed Returns for the Parliamentary Open Seat for Yangoru –Saussia in the 2007 National General Elections, dated the 23rd of April 2008 and confirm Mr. Waranaka’s election.
    
59. The formal orders of the Court then are as follows:
    
    1. The Review is granted.
       
    2. The decision of the National Court sitting as the Court of Disputed Returns for the Parliamentary Open Seat for Yangoru –Saussia in the 2007 National General Elections, dated the 23rd of April 2008 is quashed.
       
    3. The Election of Mr. Waranaka as Member for the Yangoru –Saussia Open Seat in the 2007 National General Elections is confirmed.
       
    4. Costs of the Petition and the Review are awarded to the Applicant, Mr. Waranaka.
       

________________________________________________
Henaos Lawyers: Lawyers for the Applicant
Harricknen Lawyers: Lawyers for the First Respondents
Nonggorr & Associates Lawyers: Lawyers for the Second
Respondents

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[1] [2000] PNGLR 157 (per Hinchliffe, Sheehan and Jalina JJ).
[2]. See Ludwig Patrick Schultz: A Review Pursuant to Constitution s 155(2)(b) (1988) SC 572, followed in Baki Reipa v. Yuntivi Bao [1999] PNGLR 232.

[3] [2003] SC727 (per Sawong, Kirriwom and Batari JJ).
[4] [1977] PNGLR 298,
[5] JA Gobbo, D.Byrne & JD Heydon, Cross on Evidence, 2nd Australian ed, para 4.9 to 4.11
[6] (2007) SC860 (per Sevua, Kandakasi, and Gabi, JJ).
[7] (2006) SC881(per Salika, Canning & Gabi, JJ.).
[8] Agonia v. Karo and Electoral Commission [1992] PNGLR 463, 469 per Sheehan J.