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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REVIEW (EP) NO. 50 OF 2013
BETWEEN:
JOHN WARISAN
Applicant
AND:
DAVID ARORE
First Respondent
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Gavara-Nanu J, Yagi, & Poole JJ
2014: 28 April
2015: 25 March
ELECTION PETITION – Practice and Procedure – Application to stop the case after the petitioner concluded its case – Principles applicable to such applications – Trial judge entertaining wrong principles – Such wrong principles influencing the trial judge's decision – Trial judge taking strict proof approach as a result of applying wrong standard of proof.
ELECTION PETITION – Practice and Procedure – Procedural irregularities – Such irregularities not pleaded as grounds for review – Power of the Court to consider the irregularities - Whether irregularities fatal.
ELECTION PETITION – Practice and Procedure – Evidence - Affidavit materials which the trial Court considered not included in the Review Book – New evidence considered by the trial judge not disclosed to the parties – A witness for the petitioner being recalled by the Court to be asked questions relating to the new evidence – Petitioner's counsel not being allowed by the Court to ask questions arising from questions put to the witness by the Court regarding the new evidence. Petitioner's witness not being allowed by the Court to answer the question put to him by counsel for the petitioner.
ELECTION PETITION – Practice and Procedure - Evidence – Trial judge disregarding credible evidence as a result of strict proof approach - Trial judge adopting criminal standard of proof - No reason given by the Court for disregarding credible evidence given by a witness.
ELECTION PETITION – Practice and Procedure – Listings Court directing that the Common Roll be produced at the trial – Parties fail to produce the Common Roll at the hearing – Electoral Commission being the custodian of Common Rolls obligated to produce the Common Roll at the hearing.
Cases Cited:
Papua New Guinea Cases
Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5215
Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5688
Desmond Baira v. Kilroy Genia (1998) SC 579
Dr Allan Marat v. Hanjung Power Ltd (2014) SC1357
Hon. Patrick Pruaitch, MP v. Cronox Manek (2010) SC1052
Kawaso Ltd v. Oil Search PNG Ltd SC1218
Leonard Louma v. Douglas Tomuriesa & Others (2012) N4920
Les Curlewis v. David Yuapa (2013) SC1274
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Ramu Nico Management (MCC) Ltd v. Eddie Tassie (2010) SC1075
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Settin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 386
The State v. Paul Kundi Rape [1976] PNGLR 96
Other cases cited:
Air Marshall McCormack and Anor v. Vance [2008] ACTCA 16
House v. The King (1936) 56 CLR 499
Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
Counsel:
P. Wariniki, for the Appellant.
J. Napu, for the First Respondent
M. Kuma, for the Second Respondent
25th March, 2015
On 16 June, 2012, during the general election the first respondent visited Ganjiga village in the Ijivitari Open Electorate. One of applicant's supporters, one Alfred Mokoru who claimed to be an elector was in the village. The first respondent addressed about 40 people in the village. In his speech, the first respondent said: "I am not a new person, I am here to show my presence as a sitting member and a candidate for this 2012 election". After the speech the first respondent took out K2,000.00 in cash in a bundle of K50.00 notes and put it on a mat. The first respondent also gave out foodstuff, T shirts and a generator, he told those who were gathered to share the money and the goods. The first respondent also told the gathering: "Mi raun tasol. Think of me during voting. Sapos yu no votim mi, mi no wari, bai yu kirap nogut bai mi win". In English: "I am just roaming around. (Think of me during voting). If you do not vote for me I am not worried, you will be shocked that I will win (sic.)". The first respondent further said: "If you Maisin people don't vote for me, my office door will be closed or won't entertain Maisin people". (Maisin is an ethnic group from Tufi area of the Oro Province). The people who witnessed the distribution of cash and goods are: Stela Gombi, Aida Kania, John Gil Rarama, Elizabeth Rarama, Alfred Rerebin, Suckling Nonisa, Eunice Nonisa, Margaret Nonisa, Henson Obegi, Aaron Kasai, Betty Obegi, Reuben Seri, Monalisa Kasai, Aileen Dunela Bobora, Wilfed Awaita, Wilma Rarama, Deith Sagiribo, Neville Kania, Viginia Kania, Nelly Terina, Geraldine Terina, Cedric Rarama, Pauline Asa, Davidson Nonisa, Bradley Keibe, Ailyn J. Dumu, Wilfred Awaita, Lloyd Bairan, Mollyna Bairan, Lelah Bairan J. Kasona, Karus Kasona and Delilah Kania. These people received the cash and goods from the first respondent and they subsequently voted for the first respondent.
On 13 June, 2012, the first respondent was to visit the communities of Hegata, Auga and Kmoburo of the Isuga tribal village. The meeting was to take place at a family block belonging to Mr. Colin Amoko who claimed to be an elector. The respondent did not attend the meeting but sent his agent Richard Wai to attend the meeting. Mr. Wai arrived to a rousing welcome, he apologized to the people that the first respondent was unable to attend the meeting and passed the first respondent's apologies. As Mr. Wai rose to leave the gathering after the meeting, he told Colin Amoko to see the first respondent the next day to collect the cash for the community. On the morning of Thursday 14 June, 2012, Colin Amoko was in the company of the first respondent's electoral staff in a gold coloured Nissan Navara, Double Cab Registration Number UAA.936. Colin Amko and the first respondent's staff drove around town in search of the first Respondent. They saw the first respondent driving a light brown 5 door Toyota Landcruiser Registration Number BDI.477 towards the PNG Water Board Manager Ross Sau''s house. Collin Amoko and the first respondent's staff saw the first respondent sitting on a platform under a tree in Ross Sau's yard. The first respondent called to Collin Amoko and said: "Collin makmak blo yu istapwantaim Tommy, go lukim em na kisim na tingim, em bikpela moni tumas, yu no ken kisim na haitim. Yu kisim igo na skelim wantaim komuniti, na tingim mi. Yu kisim igo na skelim wantaim komuniti." In English: "Collin your money is with Tommy. Go and collect it and remember its (sic.) big money. You must not get it and hide it. You take it and distribute it to the community and think of me." Collin Amoko then walked over to Tommy Pukari who by this time had walked to the 5 door Toyota Landcruiser, Tommy Pukari then got K2,000.00 out of his waist bag all in K20 notes and gave it to Collin Amoko. Collin Amoko then distributed the money, he gave K60.00 to the boys that drove him there for their fuel, K500 to Danston Kiman of Auga village, K200 to Steven Wuri of Komburo/Musa community, K300 for his own family, K100 to Chief Stanton Paradeba of Hegata village. The rest of the money was distributed in K20 and or K40 among the electors in Hegata village. The money was said to have been distributed according to the instructions given by the first respondent.
On Saturday 23 June, 2012, Ben Larry an associate of the first respondent delivered two bags of Star rice, half bale sugar, sixteen assorted tinned fish, two cartons of noodles, one dozen packets of coffee and coffee mate and six packets of tea leaf to Collin Amoko's residence. These were distributed at Collin Amoko's residence on the polling day on 26 June, 2012. The community was as a result said to have been bribed and Collin Amoko gave his first vote to the first respondent.
The first respondent was at Barisari village on 2 and 3 July, 2012. On the night of 2 July, 2012, Chief of Barisari village, Mishael Okasi saw the first respondent handing out "T" shirts, cash, drinks and food to the village people. (Evidence was to be called at the trial in support of this claim). On 8 July, 2012 the first respondent was at Barisari village, he handed out "T" shirts, cash, drinks and food to the electors of Barisari village. On the polling day, 9 July, 2012, the first respondent was again at Barisari village handing out cash totalling K1,500 to Mrs Belo Dickson, K1,000 to Harrison Ungija, who both claimed to be electors and "T" shirts, orange in colour depicting the first respondent's face to other electors in the village. The first respondent also handed out alcoholic beverages and foodstuff. The village people got drunk from the alcohol the first respondent gave. A pig was bought from the money the first respondent gave and was slaughtered for the people to have a feast. Mishael Okasi admitted receiving K50 from Allan Tindepa, a representative of the first respondent. As a result Mishael Okasi gave his first vote to the first respondent.
"...the fact that a person allegedly bribed was at the material time an elector, is a material element that must be proved in an allegation of bribery in an election petition. Here, as submitted by counsel for the first respondent, from a review of the evidence adduced, there is no evidence that the persons allegedly bribed in grounds 3 (d) 3 (i) and 4 (j) are persons whose names appeared on the Common Roll as electors. That a person may have voted in the General Election is not evidence that he was entitled to vote. The Common Roll in respect of the persons allegedly bribed could have been produced to prove that they were electors. It was not. Grounds 3 (d) 3 (i) and 4 (j) are dismissed".
"I should now comment on the contention by the first respondent that Common Roll should have been produced to prove that the persons who were allegedly bribed or who the first respondent attempted to bribe and to unduly influence were registered voters. In regard to this issue I hold the view that where there is evidence before the Court showing that the person allegedly bribed or unduly influenced had voted in the 2012, national elections as is the case here, that to me is sufficient proof that the person was a registered voter. I hold this view based on s. 133 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE) which shows that a voter is allowed to vote only after he is verified by the electoral officials during polling that he is a person eligible to vote. Sections 133, 134 and 135 set out stringent screening processes or tests which a voter must go through and satisfy before he is allowed to vote. The fact that the person has voted in an election is to me the proof that he had been through the processes set out under ss. 133 to 135 thus proving his eligibility as a registered voter and voted. In such a case, there no further need for him or for the petitioner to prove that he was registered voter by producing a Common Roll. Such an approach by the Court would in my opinion defeat the purpose of ss. 133 to 135 of OLNLGE. In any event in this case there was no real challenge by the respondents in cross-examination that the person allegedly bribed and or unduly influenced by the first respondent did vote in 2012, national elections. Therefore as I said earlier, the fact that there is evidence that they voted in 2012, national elections is a proof to me that that they were registered voters. In Ben Micah v. Ian Ling Stuckey (supra) and Benny Diau v. Mathew Gubag (supra) the Court only said that there has to be evidence before the Court that the person bribed is a registered voter. That is in my respectful opinion in harmony with what I said here".
"...Unless the Common Roll is produced there is no evidence before the Court. Anyone can come to Court and say that he or she voted at the elections and as such is an elector. It would however be extremely difficult to prove subsequently that he or she was allowed to vote unless the Common Roll is produced. Just as an elector is allowed to satisfy the electoral officials during polling that he or she is eligible to vote, the elector must likewise satisfy the Court that he or she is an elector by showing that his or her name is on the Common Roll an elector.
Allan Mokoru said he was not an elector and did not vote at the General Elections. Both Collin Amoko and Mshael Okasi said they were electors and voted at the General Elections. A number of persons were named by Alfred Mokoru in paragraph 10 of his affidavit (Exhibit "P1") as electors as well. However, there is no evidence to show that they in fact were electors. It is the responsibility of the petitioner not only to allege that a person is an elector but must also prove that a person is a registered elector. That can be easily accomplished by producing a copy of the Common Roll. Unless that is done I hold the view that there is no evidence before me to show that the witnesses were electors. Accordingly, the petition is dismissed".
5. Grounds
5.1 Bribery cases 5 and 7
5.5.1 His Honour erred in law when he took a restrictive approach in holding that a Common Roll was required in court to prove whether a person was an elector, when all that was required was for the Trial Judge to treat oral testimonies given by Collin Amoko and Mishael Okasi, as evidence, after the close of the Petitioner's case.
5.5.2 His Honour, in citing the case of Agonia v Karo [1992] PNGLR 463, is indicative that His Honour erroneously applied the criminal standard of proof of beyond reasonable doubt and held that a Common Roll was required in court to prove whether a person was an elector, when the recent Supreme Court case of Amet v Yama is authority that the applicable standard of proof in any election petition is "to the satisfaction of the judge", which essentially follows Parliament's intent that provisions of the Organic Law 1997 are to be given their less restrictive approaches.
5.1.3 His Honour erred in law in suggesting that a Common Roll was the only source of evidence to prove in court that a witness was an elector when the Supreme Court case of Benny Diau v Mathew Gubag is authority that trial should not be stopped if evidence has been given that the Petitioner's two witnesses vote in elections. Whether this should be believed is a matter of weight of evidence that can be decided at the end of trial.
5.1.4 His Honour erred in fact and law in acknowledging that Collin Amoko and Mishael Okasi gave evidence that they were electors, and contradicts his finding and found that there was no Common Roll to prove that Collin Amoko and Mishael Okasi were in fact electors.
5.1.5 His Honour erred in fact and law in not discussing the sufficiency of the oral evidence given by Collin Amoko and Mishael Okasi that they were voters and could have produced a Common Roll at any stage of the trial to show that they voted, when the case of Benny Diau v Mathew Gubag is authority that trial should not be stopped If sufficient evidence has been given and the Petitioner has the opportunity at any stage of the trial to produce a Common Roll.
5.1.6 His Honour erred in law in stopping the trial when there was evidence that both Collin Amoko and Mishael Okasi voted in the 2012 National Elections and in light of the potential of the Petitioner producing a Common Roll at any stage of the trial, the case was likely to succeed at the end of trial.
5.2 Production of Common Roll
5.2.1 His Honour erred in fact in not giving an opportunity to the Petitioner to discuss and produce the Electoral Rolls for the Ijivitari Open Electorate in court when it was argued (by the counsel for First Respondent at the Pre-trial conference before His Honour Judge Collin Makail) that a Common Roll for the Electorate was required in trial.
5.2.2 His Honour erred in fact in failing to follow through on the need for a Common Roll and in failing to note that there was unfairness demonstrated by the First and Second Respondent (sic.) in keeping silent about the need to produce the Common Roll, in trial.
5.2.3 His Honour erred in fact in failing to note and/or compel the Second Respondent to produce the Common Roll in trial as the Second Respondent being the custodian of Common Roll and being obligated under the Organic Law to make available, for inspection, the Common Roll, failed to do so.
5.2.4 His Honour erred when he breached his duty to uphold the rule of law and dispense justice, in deciding that a Common Roll was required during the trial of Petitioner's case when the Common Roll can be produced at any stage of the proceeding including at the trial of the Respondents (sic.) case if that does justice and prevents abuses by the First and, in particular, the Second Respondent.
10. It is trite law that the decision of a primary judge can only be overturned if it is shown that the exercise of the discretion to stop the case had been based upon a wrong principle, influenced by irrelevant and extraneous matters, took into account matters which he should not have considered or mistook facts: House v. The King (1936) 56 CLR 499; The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 386; Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488; Hon. Patrick Pruaitch, MP v. Cronox Manek (2010) SC1052; Ramu Nico Management (MCC) Ltd v. Eddie Tasssie (2010) SC1075; Les Curlewis v. David Yuapa (2013) SC1274 and Dr Allan Marat v. Hanjung Power Ltd (2014) SC1357; Kawaso Ltd v. Oil Search PNG Ltd SC1218; Micallef v. ICI Australia Opertaions Pty Ltd & Anor [2001] NSWCA 274 and Air Marshall McCormack and Anor v. Vance [2008] ACTCA 16.
11. In this case we also note from the transcript of the proceeding that a couple of glaring procedural irregularities occurred in the conduct of the trial. The transcript shows that two witnesses for the applicant, namely, Alfred Mokoru and Mishael Okasi were each re-examined twice in that, after each of them gave their evidence in chief the first respondent's counsel cross-examined them then instead of the counsel for the second respondent cross-examining, the counsel for the applicant was told by the trial judge to re-examine them then after that the counsel for the second respondent cross-examined them then the counsel for the applicant re-examined. We feel compelled to comment on this issue because such irregularities can give rise to issues of procedural fairness, fair hearing and prejudice to the rights of the parties. However, in this case, the irregularities do not seem to have had any adverse effect either in the conduct of the trial or on the rights of the parties. The irregularities are therefore not fatal.
12. There are a couple of other issues which arise from the conduct of the trial. These issues relate to the evidence the learned trial judge considered. The first issue relates to the affidavits of the applicant's witnesses, which were received in evidence by the Court and marked as Exhibits. All these affidavits have not been included in the Review Book, so we have not seen and considered them. We therefore do not know what matters were deposed to in those affidavits. The second issue relates to "new" evidence that was in the possession of the trial judge. After Mr. Okasi, who was the last of the applicant's three witnesses to give evidence finished his evidence, Mr. Collin Amoko, who was the second of the applicant's witnesses was recalled by the learned trial judge to ask him one question regarding the "new" evidence which the trial judge said was from the Electoral Commission records. The transcript of the exchanges between the trial judge and Mr. Amoko, then between the trial judge and the counsel, especially the applicant's counsel are significant and we reproduce them below.
HIS HONOUR: Yes thank you. Mr. Amoko you are still on oath. I just have one question to ask you. There is new evidence before me to show that from the Electoral Commisiion records of who are elctors. But I want to ask you this question, are you an elector for Ijivitari?
A: Yes your Honour.
Q. Thank you. Okay, that is the only question I have. I just want to ask you that. Any questions arising from that?
MR. WARINIKI: Perhaps if I could just stress along that point where your Honour is coming from. Did you stand in the queue?
HIS HONOUR: No, he understood what I said. Okay thank you, let him go. Sorry gentlemen, you have any issue with that? No
MR. NAPU: Your Honour, no.
HIS HONOUR: Mr. Kuma, No?
MR. KUMA: The next question would be in saying that he is an elector and we should have those...
HIS HONOUR: I mean that is different ...
MR. KUMA: Yes, thank you.
HIS HONOUR: Thank you I just raised the issue that I was looking through the documents and I could not find them.
THE WITNESS WITHDREW
HIS HONOUR: Okay, so you are saying that that is the end of the petitioner's case?
MR. WARINIKI: That is correct yes.
13. A number of issues arise from these exchanges. First, the learned trial judge was in possession of the new evidence which according to the trial judge was from the Electoral Commission records and it concerned the names of electors. Second, the trial judge did not disclose the new evidence to Colin Amoko (witness) and counsel. Third, it is not known how the trial judge came to be in possession of the new evidence. Fourth, after the trial judge asked counsel if they had any questions arising from the single question his Honour put to the witness, Mr. Wariniki asked the witness one question but before the witness could answer, the trial judge intervened, thus resulting in the witness being prevented from answering the question. The trial judge's intervention also cut off Mr. Wariniki from asking the witness any further questions.
14. We also note that his Honour had initially laboured under a mistaken understanding that the applicable principle or test to apply in an election petition where an application is made to stop a case, after the petitioner has closed his case is same as in a criminal trial when a no case to answer submission is made. His Honour said the test to be applied is as stated in The State v.Paul Kundi Rape [1976] PNGLR 96. His Honour even allowed counsel for the first respondent to base his submission on Paul Kundi Rape tests. His Honour appears to have realised his mistake when receiving submissions from the counsel for the second respondent and Mr. Wariniki. This late realisation of his mistaken understanding of the applicable test is also evident from the fact that his Honour did not apply the Kundi Rape tests in his ruling.
15. We note further that his Honour had applied the criminal standard of proof. In our opinion, this had directly influenced his Honour's ruling. This is evident from his Honour's reference to Raymond Agonia v. Albert Karo [1992] PNGLR 463 in his ruling. In that case Sheehan J held that the standard of proof required in an election petition to establish a ground of bribery is the same as in a criminal court and must be proved as it is constituted in the Criminal Code. This approach led his Honour to effectively rule in the end that the only way a person can prove that he is an elector is by producing a Common Roll which showed his name as an elector. We are of the opinion that this restrictive and strict proof approach had effectively prevented his Honour from considering other credible evidence on their merits and exercising his discretion properly and judicially. For example Mr. Mishael Okasi told the Court that he was a village chief and his name was always in the Electoral Roll, as a result he had voted in all previous national elections and in the 2012 national elections, he voted again and gave his number one vote to the first respondent because of the things he received from the first respondent. This evidence was ignored by the trial judge only because the Common Roll was not produced to show that Mr Michael Okasi with an elector. Again we find that this is because of his Honour's strict proof approach and his view that the appropriate standard of proof is the criminal standard or proof beyond reasonable doubt. The standard of proof required is not same as the criminal standard for the basic reason that an election petition is a civil cause, therefore the settled standard of proof is to the entire satisfaction of the Court: Neville Bourne v. Manasseh Voeto [1977] PNGLR 298; Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 and Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5688.
16. We are also of the opinion that when the applicant's witnesses told the Court that they were electors and that they voted for the first respondent, the onus was then on the respondents to disprove that claim by producing the Common Roll. This approach would have been reasonable for two reasons. First, the second respondent being the one having custody of the Common Roll should have produced the Common Roll. Second, the Listings judge had in a Directions hearing directed that the Common Roll be produced at the trial. We are of the opinion that given that the Court had given such general direction to the parties to produce the Common Roll at the trial, it was unreasonable for the respondents to expect the applicant to produce the Common Roll. The second respondent being the custodian of all Common Rolls could have conveniently and easily produced it. The learned trial judge in our respectful opinion fell into error in holding that the applicant was solely responsible for the production of the Common Roll at the trial, when the direction by the Court was given to all the parties.
17. We reiterate our view that by taking such restrictive approach the trial judge effectively disregarded the mandatory requirements of s. 217 of the OLNLGE. Section 217 is in these terms:
217. Real justice to be observed
The National Court shall be guided by the substantive merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not.
18. The legislative intent in s. 217 is plain, the Court should be guided by substantive merits and good conscience of the case and not by legal forms or technicalities or rules of evidence. In our opinion s. 217 confers wide discretion on the Court to decide what are the substantive merits and good conscience of a case which would guide the Court to observe and to do real justice in the case. This approach is in our respectful opinion consistent with the principle enunciated in Desmond Baira v. Kilroy Genia and Electoral Commission (1998) SC579. In that case Kapi DCJ (as he then was) said:
"...whether or not a judge should stop a case at the close of the petitioner's case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s. 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s. 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating and election" (Our underlining).
19. The matters we have highlighted demonstrate clearly that his Honour fell into numerous errors. As we stated earlier, because the witnesses' affidavits are missing from the Review Book, we have not considered them. In the circumstances, we are of the opinion that the only appropriate order is to remit the matter back to the Court of Disputed Returns for the applicant's Petition to be re-tried.
20. We therefore make following Orders:
i. The decision of the trial Court given on 23 August, 2013 in dismissing the Petition and upholding the review is quashed.
ii. The Petition (EP No. 44 of 2012) is remitted back to the Court of Disputed Returns to be retried forthwith.
iii. The K5,000.00 deposit paid by the applicant in EP No. 44 of 2012, as Security for Costs for the trial of the Petition is to be used for the retrial of the Petition.
____________________________________________________________
Wariniki Lawyers: Lawyers for the Applicant
Napu & Company Lawyers: Lawyers for the First Respondent
Parua Lawyer: Lawyers for the Second Respondent
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