Sapau v Posangat [2013] PGSC 33; SC1256 (8 April 2013)

SC1256

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 3 of 2013

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:

MICHAEL SAPAU
Applicant

And:

PARKOP POSANGAT, RETURNING OFFICER, MANUS PROVINCIAL ELECTORATE
First Respondent

And:

ADRWEW TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

And:

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Third Respondent

And:

CHARLIE BENJAMIN
Fourth Respondent

Waigani: Injia, CJ
2013: 3 & 8 April

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding Objection to Competency of Election Petition – Dismissal of Election Petition – Application for Leave for Review - Exercise of discretion- Application refused - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited

Jurvie v Oveyara (2008) SC 935

Counsel

C Jaminan with L Yandeken, for the applicant
P Paraka, for the first Respondent
M Kiuk, for the fourth Respondent

8 April, 2013

1. INJIA, CJ: This is a contested application for leave to apply for review of the decision of the National Court 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 2002.

2. The applicant is the runner up in the election for the Manus Provincial Seat in the 2012 National Elections. The fourth respondent won the election with 8,155 to the applicant who came second with 7,412 votes, a difference of 743 votes between them. The applicant challenged the election in an election petition on two grounds namely, errors and omissions on the part of Electoral Commission officials who conducted the election (Part B, grounds 1-17); and two acts of bribery committed by the fourth respondent himself ( Part C). Following a hearing on a preliminary objection to the competency of the petition, the trial judge dismissed the grounds in respect of errors and omissions. The trial then proceeded on the allegations of bribery. The trial judge found that the evidence did not support the allegations and dismissed those grounds. In the end the whole petition was dismissed. In this application, the applicant seeks leave to review those decisions. In addition, the applicant challenges the manner in which the trial judge conducted the trial saying the judge was excessively involved in the trial in a manner that intimidated the petitioner's key witness and lent assistance to the petitioner's counsel, and in so doing, there occurred apprehension of bias.

3. There is no question as to the application of the principles and criteria for grant of leave enunciated by this Court in Jurvie v Oveyara (2008) SC935 to the circumstances of the case at hand. The application must have merit. That means insofar as the application relates to a point of law, there is an important point of law to be determined and that it is not without merit; and, 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 findings of fact, it is considered so outrageous or absurd so as to result in injustice. The applicant bears the onus of demonstrating serious issues of law or fact. The exercise at this stage is not one involving a detailed consideration and determination of the merits of the points in the case. But it is also open to the Court to make a preliminary assessment of the points raised and to disallow applications that lack clear legal merit.

4. Counsel for the applicant referred me to the matters set out in the application and various affidavits filed which contain relevant material and made submissions based on those matters. They centered on whether the criteria in Jurvie v Oveyara had been met by counsel of the applicant and based his submissions on those matters. The respondents counsel also based their submissions on the same material. I have considered those submissions in the light of the material placed before me. I deal with those submissions in the course of my deliberation.

5. I deal with the main points raised and argued in this application. The trial judge dismissed the Part B (Grounds 1- 17) of the Petition because they failed to meet the requirements of s 208 (a) of the Organic Law to plead facts or sufficient facts to support the ground concerning errors and omissions. In a number of election petition cases that have come before me, I have stated a trite principle of practical common sense; that related facts pertaining to a particular ground in the petition, though pleaded in separate paragraphs or sentences in the petition, should be read as a whole to see if the facts support the ground. That same principle applied to this case, the ground is, errors and omissions. The facts are pleaded in paragraphs 1-17. Those facts when read as a whole should state what those errors and omissions were and how those were likely to affect the result of the election. The likely effect on the outcome of the election is primarily measured by reference to, in terms of the voting pattern and assignment of votes at the scrutiny of votes amongst different candidates, the number of votes affected which is likely to have a material bearing n the outcome of the election result.

6. The total votes affected in question as pleaded in those paragraphs are as follows:

(1) 28 votes – the difference between the total votes for the Manus Open and Manus Provincial seats earlier announced by the Returning Officer and the total votes that were accounted for at the counting;

(2) 15 votes – discovered they were mistakenly added unto the fourth respondent's tally at the 12th elimination;

(3) 6 ballot paper butts found at the Security Personnel tent suggesting Security Personnel colluded with Electoral Commission officials to influence election result in favor of the fourth respondent.

(4) Ballot Box No 18 had four outer seals and one inner seal broken suggesting tampering raising integrity of votes in that box were in question; and

(5) 680 informal votes which were marked first preference votes for the applicant were not signed by the presiding officer hence rendering them informal;

7. It was pleaded that some personnel involved in the counting were related to the fourth respondent and they manipulated the counting to enable the result to favor the fourth respondent.

8. In terms of the number of votes affected, the number of votes affected under item nos. (1), (2), and (3) represents a very small number of votes compared with the total votes cast and counted; and, even the winning difference between the applicant and the fourth respondent. Cleary those votes would have no bearing on the outcome of the election result. The votes from Ballot Box 18 could have had an impact on the result but it is not pleaded how the counting officials erred in admitting this disputed ballot box, how many votes from this box were affected, how the votes from this box were distributed at the count amongst candidates and how the assignment of those votes affected the votes scored by the candidates, in particular the fourth respondent. In terms of the item No. (5), the presiding officer concerned is not named and whether the presiding officer had any connection with the fourth respondent is not pleaded. Julian Simonen who is stated to be related to the fourth respondent was a presiding officer and counting officer, but it is not pleaded if the 680 informal votes came under his responsibility as a presiding officer and he did not sign them. It is known that a presiding officer is responsible for a particular polling place and there are multiple polling places and presiding officers in a given electorate, but there is only one returning officer for the electorate. On the whole it is clear that the petition failed to demonstrate by pleading how the result of the election was likely to be affected for the given reasons. I agree with counsel for the respondent that the trial judge was quiet correct in coming to the same conclusion. No important point of law or fact that has merit has been demonstrated in relation to this ground.

9. With regard to the bribery allegation which went to trial, the only witness called by the applicant, "Willy Lawrence" gave evidence in support of the allegation. Evidence on the other four allegations of bribery were not called. Willy Lawrence is the person named in the petition as the elector who was bribed. He is alleged to have been given a K50 note by the fourth respondent. He filed three affidavits, two in favor of the petitioner and one in favor of the respondent. The evidence were conflicting. In Court he was warned by the judge before he gave his evidence that that he could perjure himself if he told lies. The witness gave confusing evidence and ended up as a discredited witness. For instance, he said under cross examination his name was Billy Lawrence; then he said his name is not Au Lawrence; and later he said his name was A-au Willy; then ended up saying his name was Willy Lawrence. The significance of the name change was that the petitioner sought to show that Willy Lawrence, the person bribed, voted under his family name, A-au Willie, who was a registered elector. A copy of the Common Roll produced in evidence showed Willy Lawrence was not a registered elector. It is a requirement of the electoral offence of bribery that the person bribed must be a registered elector.

10. It is pleaded in the application for leave, that this witness was threatened, intimidated, emotionally disturbed, frightened, and was under duress, tearful and most times kept silent and did not answer questions in the witness box, and in that he was not able to properly and clearly give oral evidence during cross examination to the disadvantage/and or detriment of the applicant's case. The reason, is because the trial judge got excessively involved in the trial, intimidated the witness and lend his assistance to counsel for the petitioner.

11. I accept Mr Kiuk's submission that the evidence of this witness was so discredited and unreliable that the trial judge correctly found the allegation not supported by the evidence or credible evidence in favor of the fourth respondent. The trial judge was also correct in finding that Willy Laurence was not a registered elector; hence his vote could not be induced by bribe. In my view this is a classical case of a clear case that the evidence or credible evidence does not support an allegation of bribery.

12. With regard to the trial judge's involvement in the trial, it is normal practice in modern courts for a judge to actively manage the case up to its final disposition. In election petition disputes, Section 217 and s212 (1) of the Organic Law give wide discretion to the judge to actively manage an election petition until its disposition. Such discretion and the active involvement of the judge in the management of an election dispute is essential to achieve a fair and prompt disposition of the real and important factual and legal issues in a case; and in the process, ensuring that the Court process is not abused or used as another forum for disgruntled candidates to air their political grievances or exact political vengeance on their political opponents.

13. The grounds pleaded in the application suggest bias on the part of the trial judge in the way he warned the witness of perjury and managed the case. It is normal practice in any judicial proceeding for a judge to warn witnesses or prospective witnesses who exhibit signs of giving contradictory testimony of the risk of committing perjury and the serious criminal consequences of doing so.

14. In the application, it is not stated how the conduct of the case offends rules of practice and procedure prescribed by any provision of the Organic Law such as s 217 and s 212 of the Organic Law or s59 of the Constitution designed to ensure fair and impartial hearing by a neutral Court, were breached. I accept Mr Kiuk's submission that a judge is given wide discretion by s 217 and s212 (1)(e) of the Organic Law to conduct a trial on an election petition. I also accept his submission that the assertions pleaded in the application for leave on this point borders on absurdity. In the circumstances, it is clear that no important point of law or fact have been raised here to warrant grant of leave on that point.

15. I consider all other issues raised in the application for leave and advanced before me as raising no important points of law or fact.

16. For the foregoing reasons, I make the following orders:

(1) The application for leave is dismissed.

(2) The applicant shall pay the respondent's costs of the application, to be agreed, if not, taxed.

(3) The security for costs deposit held by the registrar shall be expended towards meeting such costs.

____________________________________________
Jaminan Lawyers: Lawyer for the Applicant
Paul Paraka Lawyers: Lawyer for the First, Second and Third Respondents
Kiuk Lawyers: Lawyers for the Fourth Respondent