Amaiu v Mald [2009] PGSC 38; SC1036 (28 May 2009)

SC1036

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 33 OF 2009

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

BETWEEN:

LABI AMAIU
Applicant

AND:

ANDREW MALD
Respondent

Waigani: Injia, CJ
2009: 28th May

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Final decision of National Court on an election petition - Leave for review - Application for leave under Sub Div. 1 Supreme Court Election Petition Review Rules (as amended)- Exercise of discretion- Relevant criteria and principles.

PRACTICE AND PROCEDURE – application for leave to apply for review of National Court decision – decision on election petition in the Court of Disputed Returns – preliminary points raised by applicant as objection to competency of application dismissed as they are clerical errors that does not go against competency of application – application of s.217 of OLNLLGE to forgo the rules of evidence in Browne v Dunn discussed as matters raised by applicant - Brown v Dunne is a technical rule of practice and has no statutory basis –no gross error in the trial judge’s decision demonstrated – application dismissed – Part XVIII OLNLLGE, Sub Div 1 Supreme Court Election Petition Review Rules

Cases Cited:

Papua New Guinea Cases

Jurvie v Oveyara (2008) SC935
Peter Wararu Waranaka v Gabriel Dusava (2008) SC942

Overseas Cases:

Allied Pastoral Holdings Pty Ltd v FCT (1983) 1 NSWLR 1
Browne v Dunn (1893) 6 R 67 (HL)

Counsel:

G Manda, for the Applicant
P Kingal, for the Respondent

28th May 2009

1. INJIA, CJ: This is an application for leave to apply for review of the decision of the National Court made on 2nd July 2008 to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (Organic Law). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules (Petition Review Rules). It is contested by the respondent.

2. Extensive submissions were made by counsel representing both parties. I have considered those submissions and the affidavit material relied upon by both parties.

PRELIMINARY POINTS

3. The respondent raises a number of preliminary points which challenge the competency of the application for leave. These are:

(1) The application names the wrong Court that made the decision. The Court named is The Court of Disputed Returns and not the National Court. This is contrary to the Review Rules and Supreme Court decisions in Biri v Ninkama and Balakau v Torato [1983] PNGLR 242.

(2) The application fails to comply with the requirements of the Petition Review Rules (rules 3 9c) and Form 5 A) which require sufficient particulars of the appropriate Court that made the decision, the decision sought to be reviewed and the proposed grounds for review.

(3) The application fails to plead the relief sought in the application for leave.

(4) The pleadings on bribery in the petition which were tried are vague and or lack sufficient particulars.

(5) The affidavit of the applicant filed in support of the application fails to set out sufficient facts to demonstrate or support his claim that he is aggrieved by the decision.

4. These points can be disposed off quickly. In relation to the first ground of objection, I agree that the drafting of the application for leave contains obvious errors which may be attributed to lack of editorial scrutiny and lack of understanding of the status of the National Court having jurisdiction to hear election petitions. For instance:-

(1) whilst the cover sheet says "In the Supreme Court of Justice at Waigani", the first page of the application states "In the National Court of Justice at Waigani". In the opening paragraph on page one however, it correctly states the "Application will be made to the Supreme Court at Waigani".

(2) The application on page one states the applicant seeks leave to apply for review of His Honor Kapi CJ’s decision sitting as the Court of Disputed Returns. It is well known fact and understood by the parties that his Honor was sitting as a Judge of the National Court. In fact the election petition was addressed to the National Court. Reference to a Court of Disputed Returns in the repealed Organic Law no longer exists in the current Organic Law.

5. These are clerical errors in drafting and do not affect the competency of the application.

6. In relation to the other three points, there is no requirement in the Review Rules for separate pleading of relief. The relief sought in an application for leave is the grant of leave. That is adequately set out in the opening paragraph of the application filed in this case. Issues relating to clarity, precision or sufficiency of pleadings are supposed to have been addressed at the trial. They should not be raised in the manner done in this application. Finally, the sufficiency of matters deposed to in an affidavit filed in support of an application for leave is a matter that goes to the merits of the application and they remain to be considered at the hearing of the application for leave. For these reasons, I dismiss all the preliminary points raised by the respondent’s counsel.

7. The petition was dismissed after a trial involving evidence received from both parties. Leave is sought to apply for review on points of law and facts. The relevant test is set out in my decision in Jurvie v Oveyara (2008) SC 935. I restate the criteria I enunciated in that case. 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. 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; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice and such that a review of the findings of fact is warranted. 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 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. I apply those principles to the circumstances of this case in this way.

9. It is necessary to conduct a quick survey of the course of the trial on the petition in the court below. Ground 10 (b) of the Petition was the only ground which was fully tried and decision made which is the subject of this application. This ground states:

"On 19th May 2007, two weeks before the issue of writs, there was gathering of supporters for the First Respondent at his residence near Gordons International School at Section 66, Allotment 2, Geita Place, Boroko, as he was a candidate in the 2007 general elections for the Port Moresby Electorate. After addressing the crowd he handed out a sum of K1,500.00 in cash all in K20.00 notes for distribution among various groups gathered there. One Paul Kom being an elector was given K200.00 for his group. Paul Kom received a K10.00 from his group after it was distributed. Other people who received money on that day from the 1st Respondent included, Paul Kau, Daniel Koi, Paul Kom, Paul temai, J. B Giano, Kuman Fregi and Pastor Dickson Dau who are all electors. The 1st Respondent asked them to vote for him."

10. The petitioner did not give evidence. He called Paul Kom who was the key witness. He gave evidence in support of the allegation. He was not cross- examined by respondent’s counsel. The petitioner also called Gensy Goro who gave evidence similar to Paul Kom. He was cross - examined by the respondent’s counsel.

11. The respondent did not give evidence. He called Pastor Dixon Dau Yogo and Daniel Koi, both of whom were named by Paul Kom in his evidence and also named in the petition. They were both cross examined on their evidence. They denied Paul Kom was present at the meeting; no money was distributed and they did not receive any money from the respondent.

12. In his judgment the judge covered the law, the evidence given and submissions made by counsel. The evidence given on both sides were opposed to each other. It came down to a question of which version to accept as the true version. As to weight, two points were decided. First his Honor rejected a submission by petitioner’s counsel that little weight should be given to the evidence of Pastor Dixon and Daniel Koi because the petitioner’s witnesses were not cross - examined by respondent’s counsel under the rule in Browne v Dunn. The Judge stated that whilst Gensy Goro was cross - examined, Paul Kom was not. The judge was not prepared to apply the rule in Browne v Dunn. The second point decided is the main point as to which version of events should be accepted. The judge’s decision and reasons for decision is very brief. The judge said:

"I am convinced by the evidence of the pastor. He did not receive money nor did anyone else received money. He was a witness of truth. I did not detect any serious flaw in his evidence. On this basis I reject petitioner’ witness and reject the petitioner’s case and dismiss the petition."

13. In relation to challenges to findings of fact based on assessment of demeanor and credibility of witnesses, I apply the statement I made in Peter Wararu Waranaka v Gabriel Dusava (2008) SC 942, to the present case, I said:

"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 demeanor 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".

14. In relation to the first point, the rule in Browne v Dunn (1893) 6 R 67 (HL) is a rule of practice on evidence that was first developed by the House of Lords in England in the 19th Century. It has been widely accepted and applied in both civil and criminal cases in many jurisdictions including Papua New Guinea. It is a rule of evidence and practice for parties or counsel representing parties to put the opposing version of facts to a witness in the course of cross-examination in order to give the witness an opportunity to give an explanation. Modern Courts have treated the rule as a professional rule of practice on evidence: see Allied Pastoral Holdings Pty Ltd v FCT (1983) 1 NSWLR 1 at 16, per Hunt J quoted in Cross on Evidence (2004, 7th Australian Edition), at page 537.

15. The rule has no statutory basis. The rule’s application is in the course of a trial inside the Court room and its application is very much in the trial judge’s discretion. The rule has never been subject of legislative attention in the common law world because of reluctance of the legislature to interfere in matters of Court-room procedure on reception of evidence.

16. In the present case, objection was taken by the petitioner’s counsel when Pastor Dixon and Daniel Koi were called to rebut the evidence of Paul Kom and Gensy Goro. The judge overruled the objections. During submissions, the petitioner’s lawyer submitted no weight should be given to the respondent’s evidence because they were given in breach of the rule. The judge rejected this submission as well for reasons given above.

17. The applicant’s counsel submits the Court wrongly exercised his discretion in permitting Pastor Dixon, despite objection, to introduce evidence that Paul Kom was not present at the gathering at the respondent’s house and that he (Pastor Dixon) said no such payments were made by the respondent and he did not receive any money from the respondent when those matters were not put to Paul Kom in - cross examination. His honor then wrongly exercised his discretion to give due weight to Pastor Dixon’s evidence when the respondent’s counsel did not cross examine him on this evidence. It is further submitted that the court dismissed applicant’s evidence and accepted the respondent’s evidence in a dismissive manner without properly assessing, weighing or considering the evidence. He submits there is a gross error which is apparent on the face of the record and leave should be granted. He also submits there is an important point of law which has merit to be decided in the application of the principles in Browne v Dunn on "‘whether section 217 of the Organic Law can be applied so as to preclude the application of the Rule in Browne v Dunn especially when the application of the rule had been strongly argued for by the Applicant before the trial judge in the light of the court’s own acknowledgement that Counsel did not cross – examine Paul Kom that he was not at the scene of the bribery." (para. 38 of Mr Manda’s written submissions).

18. Mr Kingal for the respondent submits s 217 gives wide discretion to the trial judge to determine the case on its substantial merits and good conscience without regard to rules of evidence and procedure. In the exercise of its wide discretion the trial judge correctly overruled the objection under Brown v Dunn and gave proper weight to the evidence of Pastor Nixon after his evidence had withstood the test under cross - examination. The judge assessed the performance of witnesses on both sides and decided which version to accept as the true version. The credibility of the witnesses depended much on their demeanor. Therefore this finding should not be disturbed. For these reasons leave should be refused.

19. In my view, there is no question that the rule in Brown v Dunne is a technical rule of practice on the reception of evidence in a Court of law. The rule falls squarely within the term "law of evidence in s 217. Section 217 is expressed in mandatory terms. In this case the judge decided not to apply that rule. Can it be said that the judge erred in the application of s 217 if he did just what he was required to do by this provision? I do not think the Judge erred in the application of that provision if he did what he was required to do by that provision. For this reason, I refuse leave in respect of all proposed grounds of review which relate to the application of the rule in Browne v Dunn.

20. Sections 37 (11), 59 and 158 (2) of the Constitution raised in the application for leave raise distinct constitutional issues from s 217 which should not be lumped together with rules of evidence referred to in that section.

21. In relation to the judge’s decision on which version of evidence to accept, it is apparent from the very brief reasons for decision that the reliability of the evidence given by each side and demeanor of witnesses formed a significant part of the reasons for decision. I do not see anything in his summary of the evidence given by both sides which is grossly erroneous and which could not support his conclusion on the reliability of the evidence for the respondent. It is clear he gave a lot of weight to Pastor Nixon’s evidence and that is a matter in his discretion. Pastor Dixon was named by the petitioner in the petition as a person who attended the meeting and received some money and one would naturally expect this person to be called by the petitioner to support the allegation. The petitioner did not call him. The respondent called him and he gave evidence against the very allegation in the petition. The judge chose to believe him. I do not think the trial judge’s decision on which version to accept in these circumstances demonstrate a gross error apparent on the face of the record or that his decision was so outrageous or absurd. I also consider that there is no important point of law of merit with respect to the exercise of discretion under s 217 with regard to the manner in which the court handled the evidence and made findings. As brief as the reasons for decision is, I am satisfied with the judge’s findings and conclusions on the evidence. I refuse leave in respect of all grounds of leave relating to findings of fact and conclusions on facts and law.

22. For these reasons, I dismiss the application with costs to the respondent.

________________________________________________

Greg Manda Lawyers: Lawyer for the Applicant
Pius Kingal & Associates: Lawyer for the Respondent