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Mel v Wii and Electoral Commission [1993] PGNC 8; N1178 (20 October 1993)

Unreported National Court Decisions

N1178

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 195 OF 1992
In the Matter of the ORGANIC LAW ON NATIONAL ELECTIONS
In the Matter of a DISPUTE OF RETURNS FOR THE ANGLIMP-SOUTH WAHGI OPEN ELECTORATE
MICHAEL MEL - Petitioner
v
WILLIAM EKIP WII - First Respondent
THE ELECTORAL COMMISSION - Second Respondent

Mount Hagen

Woods J
18-20 August1993
8-9 September 1993
6 October 1993
20 October 1993

PARLIAMENT - Elections - Disputed election petition - bribery and undue influence - Organic Law on National Elections S. 215.

Counsel:

J Reeves & M Koiri for the Plaintiff

P Paraka for the First Respondent

A Manase for the Second Respondent

20 October 1993

WOODS J: This is a Petition disputing the election of the First Respondent as Member for the Anglimp-South Wahgi Open Electorate in the National Parliament in the 1992 National Elections. A number of allegations were made in connection with the behaviour of the First Respondent or his agents and failings of the electoral officials however after a preliminary hearing certain clauses were struck out for failing to comply with the Organic Law. When the matter came before me for trial there were only three clauses remaining in the Petition namely clauses 6 (a), (b) and (c) which allege acts of bribery and undue influence by the First Respondent by handing out certain cheques to voters to induce them to vote for him in the election. Therefore being acts of bribery committed by the First Respondent himself under Section 215 (1) of the Organic Law on National Elections the Petition is claiming that the election must be declared void.

The acts of bribery alleged are:

a) That certain cheques were made out and handed to the following:

William Kulda K100;

Anis Kerowa K200;

Kewa Nekints K200;

James Wanko K100;

Ken from Kandep K100;

to induce them and their family members to vote for the first respondent.

b) That a cash cheque for K100 was handed to Jeffrey Amtie to induce him to vote for the first respondent.

c) That a cash cheque for K100 was handed to Phillip Poia to induce him to vote for the first respondent.

At the hearing the Petitioner did not bring any evidence to support the third allegation namely clause 6 (c).

The First Respondent has again submitted that these clauses 6 (a) and (b) should still be struck out for failure to properly comply with S. 208 of the Organic Law. This however was comprehensively argued at the preliminary hearing last year when the remaining clauses were struck out and again at an earlier date set for trial and further on appeal to the Supreme Court and at all times the Judges declared that they were satisfied that the clauses pleaded sufficient facts for the purpose of S. 208 of the Organic Law and I do not feel it is really open to the Respondent to argue this matter a third time but even if I did hear his arguments I would have to find that on any interpretation of S. 208 and as the Court has clarified on numerous occasions these clauses 6 (a), (b), and (c) are sufficiently clear and with enough particulars to comply with S. 208. The same argument would apply with respect to the submission that the claim for relief is defective. This is a matter that should have been covered in the preliminary hearing but I find no merit in the submission now.

In accordance with directions given for the expeditious hearing of the petition the evidence for the Petitioner was reduced into affidavit form and the deponents then appeared before the court for the purpose of cross-examination.

When the matter first came on for trial there had been no direction for the respondents witnesses to place their evidence on affidavit and following the completion of the Petitioner’s evidence the First Respondent’s evidence commenced with full oral examination in chief and cross examination. However after three of the First Respondent’s witnesses had been completed the court ran out of sitting time because of the wrong estimates made as to the time required for the trial so the further hearing had to be adjourned. To ensure an expeditious continuation of the hearing directions were given that the evidence of the remaining witnesses for the First Respondent had to be reduced into affidavit form and filed and served before the date for the further hearing in September. This direction was not complied with however in my discretion I did accept that certain affidavits filed and served albeit late would be accepted as being filed and served in time however the affidavits of some further witnesses were quite clearly not filed and served in accordance with the directions and therefore the evidence of those witnesses would not be admitted before the court. I felt that the First Respondent had ample opportunity to prepare his case and evidence as there was no excuse considering the quite adequate time between the hearing dates, he actually should have had that evidence ready at the time the hearing commenced in August.

THE EVIDENCE FROM THE PETITIONER

Evidence was presented about a number of cheques. The evidence was that in the weeks prior to the actual polling a person went to the Bank of the South Pacific and opened a current account with that Bank. Then for the purposes of that account a number of 50 leaf cheque books were obtained for the operation of that account. A Senior Officer of the Bank did say in evidence that the issuing of that number of cheque books on that account was contrary to good banking practice. There was then evidence that on the day after polling had taken place a number of people attended at the Bank of the South Pacific in Mount Hagen and presented cash cheques for encashment for amounts ranging from K100 to K200. These cheques apparently came from the cheque books supplied on the account referred to above. The Bank was unable to pay out on the cheques presented as there were insufficient funds in the account. At first the cheques were just returned to the holders as refer to the drawer because of insufficient funds however according to the Officer of the Bank as an increasing number of people came with these cash cheques on that one account the Bank became suspicious and started to suspect that some kind of fraud was being perpetrated and marked the cheques accordingly. Some of these cheques were retained by the Bank for the purpose of their own internal investigation and have been identified and presented in evidence. The Bank Officer was able to say in evidence that following his perusal of the cheques in question and from his many years experience as a bank officer and from his perusal of other documents held by the Bank he was satisfied that the signatures on the cheques in question in this case were the signature of the First Respondent. The Officer made the point though that these cheques were not drawn on the pre-existing account in the name of the First Respondent but rather against the new account opened in another name and opened shortly prior to the date of polling.

A witness James Amtie gave evidence of the First Respondent and others coming to Kindeng and giving him a cheque for K100 on condition that he and his family vote for him. The cheque was post-dated to after the day of polling and was tendered in evidence and has the signature alleged to be that of the First Respondent. James Amtie stuck to his evidence during the cross-examination.

James Wanko gave evidence of the day before scheduled polling being picked up from Wurup in a bus and being eventually brought to Hagen town where he was given a cheque for K100 and told to vote for the First respondent. The Respondent was in the company of others of his election campaign team when he handed him the cheque. The cheque was tendered in evidence and has the signature alleged to be that of the First Respondent. He was cross-examined about the trip that day in the bus and who else was picked up to ride in the bus but he stuck to his story of the First Respondent giving out the cheque to himself as well as to others on that afternoon in Hagen, anyway it was not suggested in cross-examination that the meeting in the park did not take place.

William Kulda gave evidence of the day before the scheduled polling being picked up from Wurup in a bus and being brought to Hagen where he was given a cheque for K100 and told to vote for the First Respondent. The cheque was tendered in evidence and has the signature alleged to be that of the First Respondent. He was cross-examined about the trip that day and where the bus went but he stuck to his story of the First Respondent handing out the cheque on the promise to vote. Again he was not cross-examined that the meeting in the park did not take place.

Annis Kerowa gave evidence of being told some days before the polling that the First Respondent would be coming to his area to give some money to voters and he than said that on the day before polling he was picked up from Avi Market in a bus and he and some others which included some of the witnesses were brought to Hagen where he was given two cheques by the First Respondent each for K100 to vote for the First Respondent and told that the cheques were post-dated to after the polling when he could cash the cheques. However when he went to the Bank to cash the cheques after the polling the Bank refused to pay on the cheques saying there is no money in the account. He then saw the First Respondent who apologised for there being no money for the cheques and the Respondent then gave him K20 for the cheques and took the cheques. Annis was cross-examined about the trip in the bus that day and who else was there but it was never suggested that the meeting in the park did not take place and it was never suggested that the witness was not given the cheques although it was suggested that a Jonathan Kumba may have written out and given him the cheques at that meeting in the park and not the First Respondent. So the First Respondent in cross-examination seems to agree that cheques were handed out in that meeting in the park in Hagen on the 15th June at which meeting the First Respondent was present.

Kewa Nekints gave evidence of being picked up from Wurup in a bus and being driven around to various places during the day and finally being driven to a park in Hagen where the First Respondent gave him a cheque for K200 and told him to vote for him. After the polling he then heard that these cheques were not being met and he got angry and went looking for the First Respondent who took the cheque back from him and gave him K6.80 for it. Kewa was cross-examined on his story about what happened that day in the bus but he stuck to his story of the First Respondent giving him the cheque. In cross examination it seems to be admitted that the First Respondent was with the witness at the park that day when cheques were handed out.

By the end of the Petitioners case it was not clear what the First Respondents position was on the status of the signatures on the subject cheques and of course this not being a criminal case there was never any denial made at the beginning of the case on that fact. There were no questions in cross-examination to suggest that the Respondent would allege that the signatures on the cheques were forgeries although the meeting in the area near the Local Government Chambers was clearly agreed to through the cross- examination. It was only during the First Respondent’s case that the allegation was made that the signatures on the cheques were forgeries so the Petitioner was allowed to call rebuttal evidence on the signatures. The Petitioner then brought in a police document examiner who gave evidence that following his examination of the signatures on the subject cheques and an examination of documents containing the First Respondent’s verified signatures he came to the conclusion that the signatures on the cheques were those of the First Respondent. This accords with the evidence of the Bank Officer.

It is noted that in his case the First Respondent made no effort to bring in a expert himself to support the allegation of forgery, this was surprising seeing that the signatures on the subject cheques looked even to an ordinary layman to be the signatures of the First Respondent. Since the allegations involving the cheques were always before the First Respondent from the time the Petition was filed in August last year there was ample time to consider any relevant evidence to support any suggestion of forgery or, as any law abiding citizen should have done, to report the offence of forgery to the relevant authorities.

EVIDENCE FROM THE FIRST RESPONDENT

The First Respondent himself gave evidence in which he denied ever writing the cheques or handing them out and he said it was only later that he discovered that people had forged his signature. He agrees that there was a meeting in a park in Hagen on the day before polling with a number of his supporters and that meeting was to brief his supporters for the polling day. He said that when he later found out about these cheques he did an investigation to find out who had written these cheques and when he found out he punched him. When he was asked if he had reported this matter of the forgeries to the police he said he had not as it was none of his concern. I must find this extremely critical evidence as surely if there had been the forgery on some cheques it would be apparent that the very existence of such cheques could lead to serious allegations about the campaigning for the elections which could and as has now seriously affected the success of the First Respondent. He has treated a potentially dangerous matter extremely lightly and not in the manner expected of a person seeking responsible public office. It is the job of all responsible citizens to assist with the bringing of lawbreakers, including forgers, to the courts.

Mr Wii also referred generally to having large support in the electorate and named a number of people as being strong supporters or using the word campaign managers. He even referred to some of the Petitioner’s witnesses as being campaign managers although that status was not put to the Petitioner’s witnesses Anis Kerowa and James Wanko. Actually I found the term campaign manager used rather loosely in the evidence without any proper documentation or supporter lists to give credence to the talk of a proper campaign team. The witness failed to produce any evidence of a proper campaign team or programme. The witness agrees with the Petitioner’s witnesses that late in the afternoon of 15 June he went to the Highlands Hotel and was with a John Kumba and then at the hotel a PMV with supporters from Wurup arrived and he told them to go to the area of park near the Local Government Council building where he joined them. Whilst there are serious allegations that at the meeting at that park certain inducements were offered to persons to vote the Respondent did not really deny much of the Petitioner’s witnesses version of events at the park although he does deny actually signing the cheques.

A witness Kau Onie gave evidence and said he was a supporter of the First Respondent and he talks about being picked up in the PMV on the 15 June and talks about some of the other persons being picked up. There is no evidence that he had prepared his statement for this matter last year when the writ was issued so any inconsistencies would be because of the passage of time. Of course the passage of time would be why he admitted in evidence that he could not recall which bank they visited first when the bus was touring around Hagen. He said that he did not remain with the others at the meeting in the park later that day in Hagen but wandered off to get something to eat although he did confirm that all the other persons mentioned were there then.

Kop Wai gave oral evidence and said he was a committee man for the First Respondent. However he was inconsistent in his evidence of what he did on the 14th June, which I find rather interesting as if he was a committee man I would have expected him to be working very hard in the last days of the campaign - he gave two versions of what he did on the 14th. I also find it very important that he denied knowing anything about any cheques, considering the evidence that 4 cheque book were around and according to the Bank officer a large number of people came to the bank with cheques on that account I would have expected that most people would at some stage have heard about these cheques which were handed out and then not met on presentation.

The next witness Kepa Ampla gave evidence of being a supporter of the First Respondent. He refers to the driving around on the 15 June picking up people including the Petitioners witnesses although he gives a slightly different version of the sequence of events that day to the Petitioner's witnesses. Of course it is noted that his evidence seems not to have previously been prepared on affidavit form soon after the events but recalled in the witness box here over a year after the events. As to the gathering at the park late on the 15th June he says that when they all arrived at the park he went off with Kau Onie to get some food after William Wii gave them K20.

The remaining witnesses for the Petitioner gave their evidence in affidavit form some weeks later to when the trial had to be adjourned. Tol Komb said he comes from the Wurup area and he was on William Wii’s campaign committee. He makes certain assumptions as to who were supporters of William Wii including the Petitioner’s witnesses and suggests that they had actively campaigned for the First Respondent. He then gives a detailed version of the driving around and picking up people on 15 June which culminated in the gathering in the park already referred to by other witnesses. He gives a much more detailed account than that of the witnesses who gave oral evidence earlier in the hearing. Although it is clear that there was no written record of the days events made before the drawing of the affidavit during the adjournment of the case. Certain events were given in the affidavit concerning meetings with some of the Petitioner’s witnesses however these events had never been put to the Petitioner’s witnesses.

William Kut’s evidence by affidavit was quite detailed like Tol Komb although it was clear that there had been no prior written statement closer to the time of the election on which the affidavit as sworn on 2 September 1993 was based. He states he was a campaign manager for the First Respondent Again he also presents stories of events that had not been put to the Petitioner’s witnesses and also assumes certain people were supporters of the First Respondent. He talks about owning some dump trucks and that some of the Petitioners witnesses were constant passengers in his trucks. There are some differences with the affidavit evidence of Tol Komb and also he refers to events with other First Respondent witnesses which had not been mentioned by those other witnesses.

The witness John Kundi said he was also a candidate for the seat and therefore rivalled the Petitioner and First Respondent. But he seems to be certain which candidate many of the witnesses supported. He gives rather specific evidence of events involving some of the other witnesses who were clearly not his supporters even though he is recording events that took place over a year ago.

Because a number of matters and events involving Petitioner’s witnesses were raised for the first time during the evidence in chief of the First Respondent’s witnesses the Petitioner was allowed to recall those persons to rebut the evidence and they denied such events happened or such words were said.

The court has been presented with 2 main versions of events although there is common material in both versions but then within the First Respondents version there are variations. Of course as the First Respondent’s witnesses were apparently only asked over a year after the events to recall the events one must expect some variations and inconsistencies. On the other hand the Petitioner’s witnesses were confirming in court events which they had recorded soon after the event. All witnesses agree there was the driving around on the 15 June and that the Petitioner’s witnesses were picked up that day and then they all refer to the gathering at the Park. The Petitioner’s witnesses say that the gathering in the park involved the handing over of some cheques, on the other hand the First Respondent and his witnesses deny there was any handing over of some cheques, although the cross-examination may not have completely denied that rather denied that the First Respondent himself handed out the cheques. And some of these First Respondent witnesses seem to have no knowledge at all of these cheques. Yet a number of people were given cheques as per the evidence of the bank officer and by the corroboration of the actual cheques themselves. One main area of conflict was whether William Wii was himself on the bus on the 15 June. Admittedly some of the Petitioner’s witnesses were not cross-examined on that point. But then one must also again remember that the First Respondent’s witnesses were only recalling the events over a year after and I am surprised at the particularity of that recall considering that unlike the Petitioner’s witnesses they have only now over a year after the event been asked to recall the events.

The main issue in the case is the cheques and how they were handed over to the recipients. They definitely exist, confirmed by the evidence of the Petitioner's witnesses, by the evidence of the bank officer, and even the First Respondent admits to their existence. The credibility of some of the First Respondent’s witnesses is definitely reduced by their feigning no knowledge of these cheques, cheques which must have caused some conversation in the electorate after the election. So the various versions of who was picked up when in the bus on that day is not really of concern, I would not expect everybody to recall with certainty the events of that day when on the day itself there may have been no real reason to have ever realised that the sequence of events was going to become important later. There is no difficulty with the gathering in the park later that day only the denials concerning the cheques. The confusion over John Kumba and Johnathon Kumba was never satisfactorily explained by the attendance of either of them as witnesses.

The Petitioner’s witnesses were quite clear about the cheques, they were even able to produce some of them. They said that the cheques did influence them to vote for the First Respondent and to persuade their families and relatives to so vote and there is only the surmise of the First Respondent’s witnesses without any real concrete evidence that they were already supporters of the First Respondent. There is no such thing as paid up party members lists here to support these assumptions.

The evidence is overwhelming as to the First Respondent’s signatures on those cheques. That issue was obviously going to be the central issue in the case and it was therefore vital for the First Respondent to refute that from the very beginning of his case. He made no attempt to do that. It was always open to him to bring a document examiner or such like expert. However the signatures were such that the bank officer himself had no hesitation in agreeing that they were the First Respondent’s signatures. Even to a layman the signatures look perfect. So I am satisfied beyond all doubt that the First Respondent did sign those cheques. It is submitted that the First Respondent may not have physically himself handed out the cheques in the park on 15 June but it was done by the person referred to as Johnathon or John Kumba. Who actually physically handed the cheques over at the time is not critical, the First Respondent and the Mr Kumba were together acting in concert so it was the same thing.

The handing over of cheques in this manner, especially post-dated cheques clearly comes within the committing or attempting to commit bribery or undue influence under S. 215 (1) of the Organic Law. It was clearly the giving of money in order to induce voters to vote a certain way. There is no need for me to quote the statements of the elements of bribery S. 103 of the Criminal Code as in the other cases such as Agonia v Karo Unreported N1115. The handing over of the cheques in the manner done according to the evidence clearly comes within these statements. There is no firm evidence that the recipients of the cheques were already firmly committed supporters of the First Respondent, as I have said there were no lists of fully paid up party members. The witnesses indicated quite clearly that they were prepared to vote for the person who gave them the cheques, they felt a sense of obligation. Any right thinking citizen in a free election situation must only be horrified at the creation of a bank account just before an election and the handing out of post-dated cheques to voters. I have not been asked to consider the implication of the offence of writing out and handing over cheques knowing that they would not be met on presentation. Such a situation cannot be tolerated in a democratic society which respects the dignity of the individual and requires all citizens to participate freely without any untoward coercion in the government of the Nation. Instead the recipients of the cheques were made to feel obliged to the person who handed them the cheques and their freedom of choice was taken away. These cheques were very different from the coffee pulpers in the case Palme v Mel 1987 N808 where they were given to support a business situation which was clearly acknowledged by one of the recipients there who accepted a coffee pulper for the business reasons but still exercised his freedom of choice and voted for someone else.

Here the cheques were handed out with the proviso that the recipients had to vote for the First Respondent. The recipients were given the cheques on consideration of giving their votes to the First Respondent. That clearly satisfies the requirements in S. 103 of the Criminal Code for bribery. It does not matter who actually opened the bank account because I am satisfied that the First Respondent was a party to the handing over of the cheques to the witnesses, to Jeffrey Amtie at his block and to the others at the gathering in the park. I am satisfied that such amounts to bribery and undue influence under S. 215 of the Organic Law. Whether William Kulda was an eligible voter or not does not affect the situation as the cheques to the others is sufficient.

Under the Organic Law it only needs one act of bribery or undue influence for an election to be declared void. It has been submitted to me that by declaring an election void because of just one act of bribery is unconstitutional as it thereby deprives the majority of voters who voted rightly for the First Respondent of the right to have elected the person they choose. This is not an argument that I consider has any merit. No democratic society which has a proper regard for the rights and dignity of mankind could accept a person into public office who has been found to have committed even one act of bribery or undue influence in order to gain that office. Just one such act must taint his suitability. I have been asked to refer Section 215 (1) of the Organic Law to the Supreme Court as being unconstitutional as it could undermine the constitutional right to vote under Section 50 of the Constitution. I find that there is no merit in this argument for the reasons I have already stated above.

I therefore declare the election of the First Respondent for the Anglimp South Wahgi Open Electorate to be void.

Lawyer for the Petitioner: Dakin Aisi & Koiri

Lawyer for the First Respondent: P Paraka

Lawyer for the Second Respondent: Pato Lawyers