Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463 (23 October 1992)

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS AND IN THE MATTER OF THE ELECTION FOR THE MORESBY SOUTH OPEN ELECTORATE;

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ELECTIONS - Parliament - Petition disputing election - Allegation of bribery - Application to strike out - Failure to comply with s 208(a) Organic Law on National Elections - Facts required to plead bribery must assert the base facts necessary to establish that crime - Element of intention must be pleaded - Standard of proof - Organic Law on National Elections ss 208(a) and (d), Criminal Code ss 103,104.

The first respondent applied to have struck out an election petition which challenged his return as the duly elected member for the Moresby South Open Electorate. The grounds were, first, the attesting witnesses did not supply their proper addresses contrary to s 208(d) of the Organic Law on National Elections; and second, the petition failed to set out sufficient relevant material facts to establish bribery on his part, contrary to s 208(a) of the Organic Law.

1. "... The whole purpose of requiring that an attesting witness supply name, occupation and address is so that the witness is readily identified and able to be located. Accordingly ... the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even section, lot number and suburb. In the case of a villager, simply his village." (The Court proceeded to rule that the attesting witnesses' addresses in the petition were sufficient for the purpose of s 208(d) of the Organic Law.)

2. A charge of bribery is a serious allegation challenging the electoral process; therefore, the base facts constituting the crime of bribery must be pleaded with clarity and definition.

3. 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. (Restating Bourne v Voeto [1977] PNGLR 298 at p 302).

4. Intention to induce a course of action of corrupt practice or interfere unlawfully in the free voting of elections by voters is an element of the offence of bribery under s 103 of the Criminal Code, and must be pleaded specifically in the petition along with the other elements of the offence.

5. The paragraphs in the petition alleging bribery should be struck out for failure on the part of the petitioner to plead specific elements of the offence in the petition, contrary to s 208(a) of the Organic Law. The petitioner failed to plead the element of intention to interfere unlawfully in the free voting in elections by voters and/or failed to plead whether the persons named were voters or eligible to vote in the said electorate.

SHEEHAN J: In this petition, the petitioner alleges that the successful candidate in the Moresby South Open Electorate has not lawfully been elected because he has been guilty of "numerous" instances of bribery.

The petition asserts that those acts of bribery were carried out by the first respondent himself, and 11 instances of what the petitioner says are acts of bribery are, thereafter, set out.

The first respondent now challenges the validity of this petition on 2 grounds. The first ground is that, contrary to s 208(a) of the Organic Law on National Elections, the petition fails to set out sufficient relevant material facts to establish the grounds of bribery. The second is that, contrary to s 208(d), attesting witnesses to the petition have failed to supply proper addresses and, therefore, the petition must fail.

It is convenient to deal with this second submission first, and it is certainly true that the compliance with s 208(d) is obligatory. The Supreme Court in Biri v Ninkama [1982] PNGLR 342 has made it clear that requirements of this subsection must be strictly complied with. This decision was recently followed by Hinchliffe J in Badui v Philemon [1992] PNGLR 451.

In this petition, the contention is that the address supplied by each of the attesting witnesses is insufficient, too vague or uncertain. It was submitted that the addresses supplied should be proper postal addresses. The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even section, lot number and suburb. In the case of a villager, simply his village.

In this case, an address has been supplied, and I accept Mr Lash's argument that a villager or person living in a settlement who attests a petition is fulfilling his obligation under s 208(d) to supply his normal residential address when he nominates his village or settlement.

Turning to the submission that the grounds alleged fail to supply the relevant material facts necessary to establish bribery, again there is no doubt as to the law.

Kapi DCJ in the Supreme Court decision of Holloway v Ivarato [1988] PNGLR 99 stated that:

"Setting out grounds without more does not satisfy the requirement of s 208(a) of the Organic Law .... What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."

It was Mr Sheppard's submission that, to establish the ground of bribery, the petitioner could not just simply allege bribery, he had to specifically plead facts going to the elements of that offence. In particular, it was his view that there should be an allegation that the offending first respondent had been a successful candidate in the Moresby South Electorate, that he gave money or some benefit to a named voter or voters, with the purpose of inducing that voter or those voters to vote in a particular way or refrain from voting in the election.

For the petitioner, Mr Lash submitted that the offence of bribery as set out in s 103 of the Criminal Code plainly showed that it was certainly not the case that only "voters" could be bribed. In fact, "any person" might be the offerer of, or the recipient of, a bribe so long as the purpose of the giving or the receipt of the benefit, money or otherwise was to procure the return or advantage of another at an election.

He submitted that the allegation of bribery coupled with the facts set out in paragraphs 7(a) to (k) inclusive were sufficient and constituted grounds of bribery. There were named recipients of cheques in at least 5 of the alleged offences, but, in fact, there was need to recognise that in some situations where there had been breaches of electoral laws, the reality was that, while evidence could be available as to just which known group had been given money or benefits, the names of the actual recipients might not.

Again, while acknowledging that there were no allegations made in the grounds as to the intention or purpose of the first respondent in making donations of money or property, it was submitted that the Court would not simply accept that those "gifts" were given for no purpose at all.

Counsel for the petitioner said that it was not necessary to recite the whole of s 103 of the Criminal Code to establish a ground. While acknowledging that the element of intent to the offence certainly needed to be proved, intent or purpose was not a fact to be pleaded. It is simply a matter of evidence. The petition, as it was, defined the issues, he said, and, as was said in Siaguru v Unagi [1987] PNGLR 372, the other side cannot be said to be taken by surprise.

Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside.

The Organic Law and the decisions explaining and supporting it, make it clear that such challenges must be specific in defining the breaches alleged. The Supreme Court in Biri v Ninkama [1982] PNGLR 342 at p 345 states that the Organic Law on National Elections:

"... has clearly expressed its intention that a petition must strictly comply with s 208. It is not difficulty to see why. An election petition is not an ordinary cause ... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s 210."

That statement of the Supreme Court is not only the acknowledged authoritative statement that petitions must comply with the Organic Law, it also states the reasons for the need for that compliance. The Court points out that the electoral process whereby a representative of the people is chosen must be upheld, unless real cause can be shown that that process should be overturned. Such a serious matter, therefore, calls for clear statements of the allegations relied on.

The passage that follows the quotation from Biri v Ninkama cited above further illustrates the need for precision in pleading. It emphasises that s 217 is not some catch-all safety-net for petitions that do not comply with the Organic Law. The passages starts by setting out the provisions of s 217:

The National Court shall be guarded by the substantial 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.'

This is the closest provision within the Organic Law which might touch upon the question of dispensing with any requirements precedent. The equivalent section in the Provincial Elections (Electoral Provisions) Regulations 1977 was considered in Mapun Papol v Anthony Temu [1981] PNGLR 178 and we are in agreement with what was said there .... This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss 184 and 185 equivalent to ss 208 and 209 of the Organic Law .... This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit."

These 2 passages contain the essential summary of the law on the presentation of petitions. They also bring into sharper focus the issues in this case. That is, just what are sufficient relevant material facts when an allegation of bribery is made. As Mr Sheppard submitted when citing the Supreme Court decision in Holloway v Ivarato, they are the facts which constitute the elements of the offence. Anything less defeats the purpose of pleading.

It is well recognised 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 suspending constitutional rights of taking part in the electoral process, as an elector or candidate for parliamentary elections. Such charges, therefore, must be pleaded with clarity and definition. Again, because of the seriousness of such allegations.

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 (see Bourne v Voeto [1977] PNGLR 298 at p 302). It was established in that case that, where the ground relied on is undue influence, it is necessary to prove undue influence as it is constituted by the Criminal Code. The offence of bribery must, likewise, be proved.

What then are the elements that constitute the offence of bribery. As Mr Lash has said, s 103 of the Criminal Code is a large and extensive section, incorporating a range of corrupt practices of unlawful inducement, which in the several circumstances set out in the section, may make out the charge of bribery. The section is set out below to illustrate this variety:

(a) gives, confers or procures, or promises or offers to give or confer or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind:

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) in order to induce any person acting or joining in a procession during an election; or

(iii) 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; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purposes of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors is guilty of a misdemeanour".

Without analysing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector - defined as any person entitled to vote at any election - or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.

It is also clear that there is in s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements 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.

Counsel referred this Court to the comments of Bredmeyer J in Siaguru v Unagi [1987] PNGLR 372, where he pointed out that election petitions are not new, and that precedents are available in well known reference books which set out the accepted methods of pleading electoral offences. However, in PNG, precedents are as close as the National Court Criminal Practice Rules 1987. There, the required method of formulating an indictment of bribery is set out. On p 58, form number 60 draws out the elements of the charge that need to be pleaded to constitute a valid indictment.

But is the precise presentation of an indictment in a criminal court the standard required in an election petition? Does a petition have to set out its grounds in the manner of an indictment? Essentially, that is the contention of the respondents. Mr Lash countered that, in their objections to this petition, the respondents were trying to impose pleadings which are oppressive to petitioners.

In my view, the standard is not that demanding. Although the grounds alleged in a petition charge a criminal offence, I do not believe it is necessary that a ground needs to be set out as if it were an indictment - desirable as that might be. The Court of Disputed Returns does not have the same focus as a criminal court. It is looking to the validity of an election and not whether a respondent is liable to a criminal penalty. There is also a difference of approach. The criminal court operates under strict rules of evidence, while by s 217 of the Organic Law this Court looks to the substantial merits of the petition without strict regard to rules of evidence.

Notwithstanding those differences, because "an election petition is a very serious thing," because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.

In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election.

Taking each of the allegations of bribery in turn, all fail to plead specific elements of this offence.

The "instances of bribery carried out by the first respondent himself" are listed in par 7 of the petition. Paragraph 7(a) states:

"(a) on date approximately one month before scheduled polling, the first respondent personally handed a cheque for K200.00 to an individual at the Kaugere Settlement a Women's Fellowship Group, for no particular purpose".

As was submitted, there are simply no facts here that even approach a ground of bribery. The "individual" is not named, nor is there any identification of him at all, male or female. Was he or she an elector or eligible voter in the electorate? Did he/she reside at the Kaugere Settlement? Was he/she a member of a women's fellowship group and, if so, which women's fellowship group? There is no allegation that the money was given as an inducement to interfere with the proper conduct of the election. In fact, it was given "for no particular purpose". This ground must be struck out.

"(b) On or about 30 May 1992 twenty five (25) days before scheduled polling, the first respondent presented to two individuals, namely Babani Asiamu and Iava Sioa, at Vabukori Village new dinghies with outboard motors, allegedly giving them as a gift. Mr Sioa is an NCDC representative of the village".

There is more specific detail here. Persons have been named and details of gifts made. But there is no allegation as to whether these persons were eligible voters and the ground states that supposedly these items were given as gifts. There is no allegation that these gifts were made as an inducement for them to vote one way or another or to act in any way contrary to the law on elections. This ground is struck out.

"(c) On or about 7 June 1992, eighteen (18) days before scheduled polling, the first respondent gave to a group of people at the Community Hall at Kila Kila Horse Camp a cheque for K250.00 for no specific purpose to use as they wished".

If this ground were proved, it would still do nothing more than what it says, namely prove that K250.00 was given to a group of people at Kila Kila for no specific purpose but to use as they wished. There are no facts stating these people were voters or eligible to vote. No names are given and certainly no allegation is made that the gift was improper. It is struck out.

"(d) On or about 10 June 1992 fifteen (15) days before scheduled polling, the first respondent was approached by one Mero Tobo at the first respondent's residence. Mr Tobo, one of the first respondent's committee men in 1987, inquired why he and his people had not seen the first respondent in the village since the last election. After a few words between them the first respondent proceeded to write out a cheque for K150.00 from an ANZ Bank cheque book and handed it to Mr Tobo. The first respondent then advised Mr Tobo that "your people" should make a written request for K500.00 to the first respondent, fill out an "EDF form", and they would receive the money. Mr Tobo had not gone to see the first respondent to obtain any funds".

This paragraph only states that monies were given to a named person and that further funds were available. But if it is intended to be an allegation of bribery, it does not state whether Mr Tobo or any of his people were eligible voters in the electorate and that the purpose of the giving of the money and the availability of further funds was for Mr Tobo to vote in any particular way or to induce any of "his people" to vote in any particular or improper way. This ground is struck out.

"(e) On or about 13 June 1992, twelve (12) days before scheduled polling, at Kaugere Settlement, the first respondent attended a meeting of various church groups. He called out the names of the leaders of each group and handed to the leaders of each group a cheque in the amount of K100.00. A seventh group, from the Sabama area, did not receive a cheque as the first respondent said, 'Sabama, you people I already gave K300.00'. The first respondent was heard saying words to the effect 'I will give you this money for the voting coming up'."

It cannot be said sufficient relevant material facts are stated here to ground a charge of bribery. The unnamed leaders of each unnamed "various church groups" were each given a cheque. There is no allegation as to whether the leader or the various church groups were electors or eligible voters in the electorate, nor any allegation as to whether those leaders were to vote or not in a particular way or induce others in their group to vote in any particular manner. The same applies to the Sabama group and the statement that the money was given for "voting coming up takes the issue no further". Nor does it make it any clearer. This ground is struck out.

"(f) Also on or about 13 June 1992, at Korobosea No 3, the first respondent appeared at the meeting of another group of church groups, including the Aird Hill Fellowship Group. The first respondent handed to each of the six groups a cheque for K100.00 despite the lack of request for such assistance by the groups. As the first respondent left the groups and approached his vehicle, two youths whose first names are "Rex" and "Maikai" approached him to question his long absence from the village and his sudden return so close to the election. The first respondent then gave each of the individuals K50.00 cash and promised to Maikai an outboard motor, which was subsequently delivered as promised. The youths had not sought payment before it was offered".

In this ground, the petition seems to be alleging 2 examples of bribery. First of these is that the Aird Hill Fellowship Group was given a cheque for K100.00 without any request for assistance. The lack of detail about the other church groups means that any "allegation" regarding them has to be ignored. But, in any case, once again there is no identification of this church group as having any connection with the electorate, whether by names of persons concerned or even if its members, who are nameless, were eligible voters or electors in the electorate. Essentially, all that is said is that the respondent gave to certain groups K100.00 each even though they didn't ask for any assistance. As to the second part of this paragraph, even if "Rex and Maikai" was sufficient identification of these youths, there is still no allegation as to whether they were voters or whether the gifts made to them were for the purpose of criminally interfering with their vote.

"(g) On or about 17 June 1992, 8 days before scheduled polling at Badili Settlement, the first respondent appeared with Mr Bill Skate, a candidate in the National Capital District Electorate, to give a speech to a group. He said words to the effect 'if you could give me your vote, give Moresby-South for me and NCD for Bill Skate, I will help you to run the trade stores or whatever development you are after. I brought your cheque'. The first respondent then proceeded to call the names of three individuals, John Aisi, Matiu Kukai and Francis Kavi, and one business group. Each of the individuals were handed a cheque for K300.00 and the business group leader was handed a cheque for K100.00".

Once again, there is no allegation here that any of these persons concerned were eligible voters or electors in the electorate. It may be said, of course, that from the very allegation itself, because the first respondent was seeking votes from these groups, they must have been eligible voters. Nonetheless, the obligation is on the petitioner to plead this fact, and it has not been done. But even if this objection were ignored, there is still no allegation that the offer of help or the payment to the individuals named was for an improper purpose; no allegation that the assistance promised was to "buy" votes.

"(h) On or about 18 June 1992, 7 days before scheduled polling at Badili Settlement, the first respondent again appeared with Bill Skate to speak to a group. A man, Gil Kone, stood up and spoke to both candidates in regard to the settlement dwellers' unsatisfactory living conditions and employment opportunities. The first respondent replied with words to the effect 'If you could give me your vote then I will help you'. He then said: 'If you vote for me if I stand I will help you. But in the meantime I only have a cheque for K1,000.00 to give it to you now". Mr Kone's group clapped their hands and accepted the cheque. Gil Kone was then heard saying that the cheque would be taken to the bank and divided among the people and 'we offered the money and we must vote for him - Moresby-South for Albert Karo and National Capital District for Bill Skate'."

There is similar lack of detail in this ground. The respondent is again speaking of an unnamed "group". There is no information as to whether that group were electors or eligible voters or otherwise. In short, nothing other than report of a complaint by settlers as to their unsatisfactory living conditions, and an offer to help, coupled with a donation of K1,000.00. If the allegation is intended to be that this donation was not simply a gift to help alleviate poor living conditions, then it does not say so. There is no allegation that the monies were paid over for an improper attempt to buy votes. This ground must also be struck out.

"(i) On or about 24 June 1992, the day before scheduled polling, the first respondent drove into Ranuguri Settlement to the property of Mr Eri Fareho, after a short speech to a group of people the first respondent then delivered two cheques, one each to Mr Raphael Sari and Mr Mel Karo, each being in the amount of K300.00. The first respondent was heard saying words to the effect that he would win and 'the money is for what the people would do for me'."

Here again, neither of the persons named was said to be an elector or eligible voter or person being paid or bought, to unlawfully influence others to vote in a particular manner. The words allegedly said by the first respondent do not supply any allegation of unlawful inducement. This ground is to be struck out.

"(j) On or about 25 June 1992, the scheduled polling day, the first respondent came to Kogeva Settlement and from a vehicle gave away to electors approaching the polling booths, for free, such items as rice, flour, sugar and cigarettes.

(k) On 26 June, 1992, the actual polling day, the first respondent returned to Kogeva settlement and continued to distribute free food stuffs and other goods to electors approaching the polling booths".

Neither of these paragraphs establish any particular ground on which to base a petition. As allegations of bribery, they fail to name any persons supposedly bribed. Nor do they stipulate that the purpose of providing the electors with such provisions was to induce or to influence the manner of voting. It is to be noted that these two paragraphs are the only time that the word "elector" was mentioned, though none are named.

The allegation was, of course, bribery. However, if these allegations were intended to be a corrupt or improper practice under the Criminal Code, then s 103 dealing with "treating" does provide for the improper supplying, inter alia, of food and drink to persons, but here again the element of intent has to be pleaded to constitute such an offence.

The result, therefore, is that none of the grounds cited by the petitioner comply with the provisions of s 208 of the Organic Law. They are vague and fail to put the case of the petitioner in terms that makes it clear just what is being alleged. It is not enough simply to state a set of circumstances that may or may not have criminal implications and, without any specific assertion of fact to rely on by the Court, assuming the wrongful implication that may be drawn as a basis of a petition. A petitioner cannot simply say a respondent bribed a church group, for example, because he gave them money. He must state facts as to why the gift was a bribe. And in election petitions, that bribery has to be linked to an unlawful interference with the electoral process.

It must be made very clear to all parties that, on ruling on the allegations in this petition, the Court is making no statement or determination on whether the allegations made here are true or not.

As in many elections, there may be general complaints of improper practices, charges and counter charges and expressions of dissatisfaction. The Court of Disputed Returns does not have the tasks of inquiring into those matters, serious as they may be. The Court of Disputed Returns is set up to hear specific charges properly made out in terms of the Organic Law and determine on the evidence before it whether those charges can be made out and, if so, whether they do affect the result of the election.

The Court in this case rules that the petition fails to meet the conditions of s 208(a) of the Organic Law and, because of s 210, the Court of Disputed Returns can proceed no further with this petition.

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Papua New Guinea Law Reports

Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463 (23 October 1992)

Papua New Guinea Law Reports - 1992