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Amaiu v Mald [2008] PGNC 186; N3335 (13 March 2008)

N3335

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 19 OF 2007

BETWEEN:

LABI AMAIU
Petitioner

AND:

ANDREW MALD
First Respondent

AND:

CYRIL RETAW
Second Respondent

AND:

ELECTORAL COMMISSION OF PNG
Third Respondent

Waigani: Kapi CJ
2008: 12, 13 March

ELECTION – PRACTICE AND PROCEDURE – No Case submission – May be adopted depending on the facts – Each case to be treated on its own merits – Followed Desmond Baira v. Kilroy Genia & Electoral Commission (Unreported Judgment of the Supreme Court dated 26th October 1998, SC579)

Cases cited:

Desmond Baira v Kilroy Genia & Electoral Commission (Unreported Judgment of the Supreme Court dated 26th October 1998, SC579).

Legislations cited:

Organic Law on National Elections (OLNE)

Counsel:

G. Manda, for the petitioner
P. Kingal, for the first respondent

13 March, 2008

1. Kapi CJ: At the conclusion of the petitioner’s case, counsel for first respondent submits that I should stop the trial at this point in time as there is no evidence on the two allegations of bribery against the first respondent.

2. This submission may be made in an election petition on the authority of Desmond Baira v Kilroy Genia & Electoral Commission (Unreported Judgment of the Supreme Court dated 26th October 1998, SC579).

3. The first respondent made a submission to dismiss the petition on the basis that the evidence did not make out a prima facie case of bribery. In considering the issue, the Court provided some guidance for this practice in election petition cases:

"In considering this issue, counsel for the second respondent submits that this Court should give some guidance as to the practice of adopting the equivalent of a no case submission in an election petition. As far as I am aware, the Supreme Court has not addressed this issue before. In my opinion, it would be a mistake to readily adopt a procedure under the Organic Law which is applicable to criminal proceedings. The intention of the legislature is clear that the proceedings under the Organic Law are different and therefore it is fundamentally wrong to adopt procedures from any other type of proceedings ........

What procedure is adopted for proceedings under the Organic Law is a matter for judges in their law making power to prescribe under s 212 (2) of the Organic Law. As I pointed out in the Iangalio case, Judges have not yet made such rules of procedure. In the circumstances, whether or not, a judge should stop a case is a matter entirely up to the discretion of the Court....."

4. Each case will be determined on its own facts.

5. Counsel for the petitioner agrees with the principles stated in Desmond Baira v Kiroy Genia (supra).

6. Allegation of bribery in Ground 10 (a)

"On the 4th July 2007 at about 10.30 pm, the first respondent who was a candidate in the 2007 general elections drove into Bodiam Settlement 6 mile in the North East Open Electorate, National Capital as part of his campaign trail and after giving his campaign speech, he offered a sum of K1,000.00 in cash to one Mrs Sorty Paul being an elector, all in all in the denominations of K50.00 and instructed her to share the money equally among themselves and the first respondent and uttered in the Pidgin language "me lekim number wan vot bilong yupela, The money was shared among the families in the settlement."

7. The key witness in proving this act of bribery is Mrs Sorty Paul. She is alleged to have received the money and distributed it.

8. She was not called as a witness. There is no evidence that the first respondent bribed Mrs Sorty Paul

9. Counsel for the petitioner further relied upon evidence of Maike Michael. There is some confusion over who promised to give the K1000.00. The affidavit speaks of the petitioner (see par 3 and 7) of promising K1000.00 to be paid by the petitioner. This has not been clarified by counsel for the petitioner.

10. The critical evidence given by this witness appears in par 7:

"The next day I believe the leaders including Mrs Sorty Paul went to the Petitioner’s residence and collect the money (K1000.00)."

11. This is not fact. It is not even hearsay evidence which may be admitted in the evidence (see s 217 of the OLNE). There is no evidence to suggest that a person who attended meeting and received money had relayed this to Maike Michael. That kind of evidence may be led. Whether it is capable of establishing a fact is matter of fact to be determined having regard to all the other evidence. Paragraph 7 of the affidavit is not stating a fact, it states a matter of belief and incapable of proving any fact. I do not regard this as stating a fact. The inevitable conclusion is that there is no evidence before the Court to prove Ground 10 (a). I would stop the trial in respect of ground 10 (a) and the first respondent need not answer this allegation.

11. Ground 10 (b)

"On the 19th April, two weeks after the issue of writs, there was gathering of supporters for the first respondent at his residence near Gordons International at Section 66, Allotment 2, Geita Place, Boroko as he was a candidate in the 2007 general elections for the Port Moresby Electorate. After addressing crowd he handed out a sum of K1500.00 in cash all in K20.00 notes for distribution among various groups gathered there.

One Paul Kom being an elector was given K200.00 from his group after it was distributed."

12. The balance of this pleading had been struck down.

13, Council for the first respondent made some complaints about the affidavit but did not object to the admissibility of the affidavit of Paul Kom. That may be relevant to the weight to be given to the contents on the merits.

14. As I understand the evidence, Paul Kom was present at the campaign meeting and the money was distributed at the meeting. He received the money and he obtained K10.00 for himself. That money came from the first respondent. Whether or not I am able to accept the truth of this evidence is a matter for the merits when I consider the evidence at the end of the trial.

15. I find that there is some evidence of bribery by the first respondent of Paul Kom. In this regard I reject the submission to stop the trial at this stage. The first respondent needs to indicate whether he wishes to call evidence in his defence.

Greg Manda Lawyers: Lawyer for the Petitioner
Pius Kingal & Associates: Lawyer for the First Respondent