Wesley v Leonard [2016] PGSC 1; SC1477 (29 January 2016)

SC1477

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SC Rev (EP) No. 13 of 2014

BETWEEN:

GORDON WESLEY

AND:

ISI HENRY LEONARD & THE ELECTORAL COMMISSION OF PNG

Waigani: Salika, DCJ; Sakora & Hartshorn JJ
2015: 15th June
2016: 29th January

Application for Judicial Review – Practice and Procedure – handing of vehicle keys on day of nomination to voters – intention to induce voters to vote in a certain way – findings open to the Court

Cases Cited:

Agiru v Mune (1998) SC 590
Biri v Ninkama (1982) PNGLR 34
Jim Nomane v Wera Mori (2013) SC1252
Jerry Singirok v Ken Fairweather (2014) N5577,

Counsel:

Mr G J Sheppard, for the Applicant
Mr P Mawa, for the First Respondent
Mr B Koke, for the Second Respondent

29th January, 2016

1. BY THE COURT: Introduction: This is a review application by Gordon Wesley asking this Court to review two decisions of Justice Kariko in the National Court sitting as a Court of Disputed Returns in an Election Petition No. 65 of 2012 – Isi Henry Leonard v Gordon Wesley and Andrew Trawen, the Electoral Commissioner of Papua New Guinea.

2. The two decisions sought to be reviewed were made on 20th August 2014 and 29th November 2014 respectively. The application for leave to review these decisions was granted on 4 February 2015 and the application for review was filed on 17 February 2015.

GROUNDS FOR REVIEW

3. The following are the grounds for review:

(a) To review that part of the decision of 20 August 2014, (ruling on competency) where His Honour refused to dismiss the petition as His Honour held that s.208 (a), of the Organic Law on National and Local Level Government Elections (hereafter "Organic Law") does not require a Petitioner to plead the relevant provision of s.103 of the Criminal Code when alleging bribery as a ground in the petition; and

(b) To review the final decision of 29 November, 2014 which upheld ground 10 of the petition and voided the election of the Applicant and thereby ordering a by-election? This was on the basis that the presentation of the PMV truck keys to the Councillor Steven Stanley at West Liak village on 23 May 2012 was planned and orchestrated by the Applicant to induce votes.

ISSUES

4. The following issues were argued before us to determine:

"7. Whether the Learned Trial Judge erred in law when he held that pleading the specific provisions of section 103 Criminal Code upon which an allegation of bribery is not a requirement of s.208(a) of the Organic Law taking into consideration the Supreme Court's views in Jim Nomane v Wera Mori (2013) SC1242.

8. Whether the Learned Trial Judge erred in law and in fact when he found that the Applicant had committed bribery by presenting the PMV truck keys to the Ward Councillor of Bagilina village.

9. Whether the Learned Trial Judge erred in fact and in law when he held that the applicant had committed bribery and had induced the voters of Bagilina Village to vote for him by making a finding that the presentation of the truck was planned by the Applicant to coincide with his campaign launching at West Liak Village.

10. Whether the Learned Trial Judge erred in law and in fact when he held that the Applicant had committed bribery by finding that the circumstances of the presentation of the PMV truck keys to the voters at Bagilina Village at the request of the voters themselves was dissimilar to the factual circumstances in the election petition case of Jerry Singirok v Ken Fairweather (2014) N5577, when in fact there were similarities between these two cases.

11. Whether the Learned Trial Judge erred in law and in fact when he held that the Applicant had committed bribery by making a finding in respect of Ground 10 of the Petition that the Applicant exhibited the element of "intention´ pursuant to section 103 of the Criminal Code Act when he presented the PMV truck keys to the Village Councillor.

12. Whether the Learned Trial Judge erred in law and in fact in finding that the Applicant had induced the voters of Bagilina Village by presenting the PMV truck keys and making a speech; saying words to the effect that he expected the villagers of Bagilina to vote for him because he had provided the PMV truck, in the absence of any evidence by the First Respondent.

13. Whether the Learned Trial Judge erred in fact and in law in finding that the Applicant had committed bribery by considering and placing weight on matters pleaded in Ground 11 of which allegations had been struck off as being incompetent".

5. Counsel argued all the grounds of review before us and we reserved our decision. This is now the decision.

DEALING WITH THE ISSUES

A. Did the learned trial judge err in law in holding that pleading the specific provisions of Section 103 of the Criminal Code is not a requirement under Section 208(a) of the Organic Laws where bribery is ALLEGED?

6. The requirement under Section 208(a) is that a petition shall set out the facts relied on to invalidate the election or return. In our view Agiru v Mune (1998) SC 590, sets out the correct law on this point which is that there is no requirement under Section 208(a) that a petition should plead the law that defines a ground for review. Biri v Ninkama (1982) PNGLR 342 stands for the proposition that in a petition relevant fact must be pleaded which constitute the grounds upon which an election is sought to be invalidated. In this case the learned trial judge comprehensively considered the law and case authorities and in our view applied them correctly to the circumstances of this case. In our view, a petition should not plead the law breached. It should be left to the Court to conclude what law has been breached. All that Section 208(a) requires is for the petition to plead material and relevant facts to support the grounds that the petition alleges. This ground has no merit and is dismissed.

B. Did the learned trial judge err in law and in fact when he found that the applicant committed bribery by presenting the pmv truck keys to ward councillor of bagilina VILLAGE?

7. The Oxford Advanced Learners Dictionary 8th Edition defines "bribe" as: - to give somebody money or something valuable in order to persuade that person to help you, especially by doing something dishonest". The Criminal Code Section 103 defines bribery as "a person who gives, confers or procures or offers a person any property or benefit of any kind in order to induce any person to endeavour to procure the return of any person at an election or the vote of any elector at an election". While the handing of the vehicle key was not dishonest in itself, the learned trial judge found that it was dishonest to give it at the launch of his election campaign. Again that finding was open to him at the trial. His Honour explained why and how he came to that finding. With respect the finding was open to the learned trial judge as he heard the evidence before him and he was in a much better position than this court to decide that issue after listening to the witnesses. For that reason this ground has no merit and is dismissed.

C. Did the learned trial judge err in law and in fact when he held that the applicant committed bribery and induced voters of Bagilina to vote for him when presenting the truck and that the presentation was planned by the applicant to coincide with his campaign launch at west liak village.

8. The applicants' argument is that the petition did not plead that the applicant planned and orchestrated the presentation of the vehicle keys to induce electors from Bagilina to vote for him. The statements by the learned trial judge that the presentation of the PMV truck keys was a "properly planned and elaborate campaign launch" is a finding of the Court on the evidence presented to it. What is the error in coming to that finding? There may not have been any evidence that the applicant planned the show but there is evidence and it is not disputed that the vehicle keys were handed over by the applicant during his election campaign launch. In our opinion that is evidence enough for the learned trial judge to come to the finding. It was open to him to make the finding that he did as to the vehicle and the key being given at the same time as the election campaign was launched. That was the dishonesty part of the event. The learned trial judge said the giving of the key was done to induce voters to vote for the applicant. The Courts must spell it out in no uncertain terms that, that conduct could amount to bribery. This ground therefore has no merit and is dismissed.

D. Did the learned trial judge err in law and in fact in finding that factual circumstances in singirok v fairweather (2014) N5577 and this case were dissimilar.

9. With respect the finding was open on the evidence before him. The learned trial judge was aware of the decision in Singirok v Fairweather (Supra). In this case the applicant was launching his election campaign and he was about to nominate. In the Singirok case, Fairweather was not a candidate at the time of many of the alleged incidents. Further, in some of the allegations Fairweather's officers were implementing the decisions of the Joint District Planning and Budgets Priorities Committee. That is why, with respect, we say the finding was open to the learned trial judge. His Honour distinguished that case from the current case on the factual differences. This ground has no merit and is dismissed.

E. Did the learned trial judge err in law and in fact when he held that the applicant committed bribery in respect of ground 10 of the petition and when he found that the applicant exhibited the element of "intention" pursuant to section 103 of the criminal code when he presented the pmv truck keys to the village councillor.

10. The learned trial judge said:

"The critical question from the evidence is whether the presentation of the keys amounted to an inducement for electors of Bagilina to vote for Mr Wesley in the elections"

11. The question is – Did Mr Wesley commit an offence of bribery under Section 103(a) (iii) of the Criminal Code? The petitioner was required to prove to the satisfaction of the Court that Mr Wesley gave Steven Stanley the ward Councillor of Bagilina village the PMV keys in order to induce any person to endeavour to procure the return of Mr Wesley at the election or the vote of an elector at the elections. From evidence the vehicle keys and the vehicle were handed over to the community in Misima. The vehicle purchase had been approved by the then Joint District Planning and Budgets Priorities Committee for the Samarai – Murua District. The purchase of the vehicle was in order. The handing of the key was in order but the occasion for the giving of the key was not in order. That was his Honour's finding. Was the handing of the vehicle keys at the launching of Mr Wesley's 2012 election campaign orchestrated to induce voters to vote for Mr Wesley? This to us is the finding of the learned trial judge. Did he err? With respect, no as it was open to him to make that finding.

12. His Honour was of the view that Mr Wesley had travelled on the MV Samarai Murua as an integral part of his 2012 election campaign launching. Evidence does support that finding that Mr Wesley was there to launch his 2012 elections campaign. His Honour was of the opinion that the launch of the election campaign was permissible but the giving of the vehicle and the key as part of the election campaign was wrong. The Court here was sending out a strong message that sitting member candidates must not abuse the process of delivery of normal government services for their own benefit.

13. The learned trial judge said:

"The presentation of the truck keys preceded the formal campaign launch. To my mind, the presentation had to be part of the programme for the launch. It was a significant event because it was something of real benefit to the Bagilina community and the message to the crowd including electors of Bagilina signified by the presentation was that Mr Wesley acquired the truck for Bagilina. The ordinary villager would have seen this event as signifying a gift from Mr Wesley rather than an item purchased through DSIP funds. I am satisfied that Mr Wesley intended to induce the electors of Bagilina including Donigo Israel to vote for him.

When asked why he did not decline the request to present the truck keys, Mr Wesley said he was obliged because he was asked by a leader, a councillor. But could he have not explained to the councillor that it would not good look and might be misinterpreted as an inducement. Mr Wesley said his campaign did not include any formal speeches as all his policies were written down for distribution because of previous election disputes. One would think that because of those previous experiences he would have resisted the invitation by the councillor. I do not consider Mr Wesley's explanations as credible.

Even if I am wrong about the presentation of the truck and keys being pre-planned, then I consider that Mr Wesley seized the opportunity and used the occasion and the prevailing circumstances and I am satisfied it was with the intention to influence and induce the electors to vote for him.

I find therefore that Gordon Wesley, a candidate in the last national elections, formally gave a PMV truck (by presenting its keys) to Ward Councillor Steven Stanley on behalf of the Bagilina community for the use and benefit of the people of Bagilina in order that the electors from Bagilina including Donigo Israel would vote for him in the elections. In my opinion, the necessary elements of Section 103(a) (ii) of the Criminal Code have been properly made out".

14. The elements of Section 103(a)(iii) are:

(a) a person

(b) gives procures or promises or offers to give any person any property or benefit

(c) in order to induce any person

(d) to endeavour to procure

(e) the return of any person at an election or

(f) the vote of an elector

(g) at an election

The Petitioner needed to prove each of those above elements.

15. Elements (a), (b) and (g) were proved in that there was no dispute Mr Wesley gave the vehicle and the key to the vehicle to Steven Stanley. It is also not disputed that on that day at the same place Mr Wesley launched his 2012 election campaign. The handing of the key preceded the election campaign launch; the events were staged back to back. It was like "alright I have given you a new PMV truck now you must vote for me for more such goods". Elements (c), (d), (e) and (f) were in dispute as to whether Mr Wesley gave the vehicle and the key to the vehicle as inducements to Dango Israel and others to vote for him. Was this open to the learned trial judge to come to that conclusion? We say it was open to the learned trial judge to draw inferences to arrive at that finding. We see no reason to interfere with that finding. This is what Woods J meant in Mune v Agiru when he said:

"The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers."

16. His Honour's application of S103 (a) (iii) to the facts in our view was correct.

17. We therefore dismiss this ground as having no merit.

18. Accordingly we dismiss the entire application.

19. Costs of the application are awarded to the respondent in this application.
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Young & Williams Lawyers: Lawyer for the Applicant
Mawa Lawyers: Lawyer for the First Respondent
Parua Lawyers: Lawyer for the Second Respondent