N4919

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 15 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE KIRIWINA GOODENOUGH OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

LEONARD LOUMA
Petitioner

AND:

DOUGLAS TOMURIESA
First Respondent

AND:

ANDREW TRAWEN,
PNG ELECTORAL COMMISSIONER
Second Respondent

AND:

THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Third Respondent

Losuia: Hartshorn J.
2012: 26th & 27th November

Election Petition - Objections to competency 

Facts:

The petitioner disputes the election of the first respondent as the Member for Parliament for the Kirriwina Goodenough Open Electorate in the 2012 General Election. The three respondents object to the competency of the petition on the basis that it fails to plead material facts as required by s. 208 (a) Organic Law on National and Local Level Government Elections (Organic Law) and consequently the parts of the petition to which objection is taken cannot be heard pursuant to s. 210 Organic Law.

Held:

Grounds 3 (h), 4 (b), (c), (d), (e), (f), (g) and (l) are to go to trial and grounds 3 (d), (e), (g), (i), 4 (j) and (k) less the parts that have been struck out, are to go to trial. 

Cases cited: 

Biri v. Ninkama [1982] PNGLR 342 
Holloway v. Ivarato [1988] PNGLR 99
Agonia v. Karo [1992] PNGLR 463
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28
Paru Aihi v. Moi Avei (2004) N2523
Gabriel Dusava v. Peter Waranaka (2008) N3367 
Alfred Manase v. Don Polye (2008) N3534
Sir Arnold Amet v. Peter Yama (2010) SC1064

Counsel:

Mr. J. Sirigoi, for the Petitioner
Mr. D.L. Dotaona, for the First Respondent
Mr. L. Okil, for the Second and Third Respondents

27th November, 2012

1. HARTSHORN J: The petitioner disputes the election of the first respondent as the Member for Parliament for the Kirriwina Goodenough Open Electorate in the 2012 General Election. The three respondents object to the competency of the petition on the basis that it fails to plead material facts as required by s. 208 (a) Organic Law on National and Local Level Government Elections (Organic Law) and consequently the parts of the petition to which objection is taken cannot be heard pursuant to s. 210 Organic Law.

2. The allegations in the petition are that the first respondent committed and attempted to commit acts of bribery and that he was not qualified to be a candidate in accordance with s. 103(2) Constitution. The respondents only object to the bribery and attempted bribery grounds.

3. The facts that are required to be pleaded in a petition have been determined by various National and Supreme Court cases. These include: Biri v. Ninkama [1982] PNGLR 342 Holloway v. Ivarato [1988] PNGLR 99, Agonia v. Karo [1992] PNGLR 463, Albert Karo v. Lady Carol Kidu [1997] PNGLR 28, Paru Aihi v. Moi Avei (2004) N2523, Gabriel Dusava v. Peter Waranaka (2008) N3367 and Sir Arnold Amet v. Peter Yama (2010) SC1064.

4. As to establishing a ground of bribery, in Agonia v. Karo (supra), Sheehan J. Considered the applicable principles and said:

"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be (an) 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 may be, in the free voting of an election."

5. In Karo v. Kidu (supra), Injia J. (as he then was) said:

"In my view, factors relating to matters requiring proof prescribed by the Organic Law on National Elections cannot be left to inference in a Petition. They must be specifically pleaded, not left to inference. It is a requirement of s. 215(3) to specifically plead whether the bribery and undue influence, in the present case by the first Respondent's Committee members, was committed with or without the authority or knowledge of the First Respondent."

Grounds of objection

6. The first general ground of objection in this case is that where the allegation is that the first respondent gave cash to someone to give to someone else, the grounds do not have the requisite specificity of pleading as to intent and that it is not sufficient merely to plead that, for instance, cash was given "in order to procure" or "to procure" vote in the election. What is required submits counsel for the first respondent, are that words similar to those used in s. 103 (a) (iii) Criminal Code should be used to properly specify the intent. Section 103 Criminal Code relevantly is:

"A person who-

(a) gives….. to…. any person any property….

(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;….."

7. Counsel for the petitioner submits that the use of "in order to procure" or "to procure" is sufficient. He relies upon the case of Agonia v. Karo (supra) for his submission. In Agonia v. Karo (supra) however, Sheehan J. sets out what must be stipulated in the ground alleging bribery, and then as to intent says:

"…. and that the reason that it was given or offered was to get a named person to vote….. in the free voting of an election."

8. Given the wording of s. 103 a) (iii) Criminal Code, I am of the view that where the allegation is that the first respondent gave cash to someone to give to someone else, the ground should be specific with the use of words to the effect that cash was given in order to induce a person to endeavour to procure the vote of an elector at an election. This to my mind, makes it clear that the intention of the person giving the cash is to induce the second person to attempt to obtain the vote of the third person. By merely using the words "in order to procure" or "to procure", the allegation lacks the element of inducement of the second person, an element of the crime are set out in s. 103 (a) (iii) Criminal Code.

9. A second general ground of objection is that where the allegation is that the first respondent gave cash to someone to give to someone else it should be stated that the second person acted with the knowledge or authority of the first respondent, to comply with s. 215 (3) (a) Organic Law. Counsel for the petitioner submits that if it is alleged that the first respondent gave the cash directly to or in the presence of the second person, it is not necessary to specify that the second person received the cash with the knowledge or authority of the first respondent. I agree with this submission. How could it be said that the second person was not receiving the cash with the knowledge of the first respondent in such circumstances?

10. A third general ground of objection is that in some of the grounds in the petition, it is not alleged that cash to be distributed was actually distributed or what the specific amounts given were. Further, the names of the persons to whom the cash was allegedly given are not stated.

11. Counsel for the petitioner submits that this is not necessary and relies upon the case of Dusava v. Waranaka (supra) in which Manuhu J. stated:

"It is… not necessary to plead how the person or persons bribed conducted themselves or voted during the election." 

I respectfully agree with these comments.

12. A fourth general ground of objection is that in instances where money is alleged to have been given by an agent of the first respondent and not the first respondent personally, the ground should specify that the result of the election was likely to be affected. Counsel for the second respondent relied upon the case of Amet v. Yama (supra) for this proposition. He correctly qualified his reliance by informing the court that Amet v. Yama (supra) did not concern bribery. Upon a reading of s. 215 (3) Organic Law, I am not satisfied that this submission is correct and note that Amet v. Yama (supra) is not on point with the subject of the grounds in this case. 

13. Applying the principles enunciated in the cases to which I have referred and given my views on the general objections raised, I consider each of the bribery and attempted bribery allegations:

Ground 3 (a) alleges amongst others, the giving of cash on a given date but that date does not include the year. The first respondent objects to this omission. In Aihi v. Avei (supra), Injia J. (as he then was) said:

"The pleading of the precise date on which the alleged bribery is alleged to have occurred is one of the specifics of a bribery allegation" … and….." is necessary to show that the alleged bribery took place for (the) purpose of influencing an elector, in respect of the subject election. To not plead the specific date of the alleged bribery is a material defect on a Petition, which cannot be cured now at this stage of the proceedings by amendment or otherwise or even with the offer of evidence at the trial."

14. I note that Lay J. in Alfred Manase v. Don Polye (2008) N3534, referring to s. 534 (1) (c) Criminal Code, was of the view that in a criminal trial the time of the offence would not be a material fact. Section 534 (1) (c) provides that an indictment is not open to objection for stating imperfectly the time at which the offence was committed. Here, it is not the time that has not been correctly stated, but the date. Further, the date is open to differing interpretations because of the failure to state the year. I am of the view that the specific date not being pleaded is not sufficient for the purposes of s. 208 Organic Law. 

15. Further, this ground does not adequately specify the intention. I referred earlier in this decision as to what in my view, is required in this regard. For these reasons ground 3 (a) is struck out.

16. As to ground 3 (b), this ground alleges the giving of cash to villagers and to a Pastor Tebei for him to distribute. This ground is confusing as it states that cash was given to villagers and then it states that the money was given to Pastor Tebei. It is not clear if it is alleged that the first respondent gave the cash to the Pastor. If it is not, Pastor Debei is not described as an elector and is not described as distributing the money with the knowledge or authority of the first respondent. Further, this ground does not adequately specify the requisite intention. Ground 3 (b) is struck out.

17. Grounds 3 (c), (f) and (j) do not adequately specify the requisite intention. These grounds are struck out.

18. Ground 3 (d) alleges that the first respondent gave to Yedina Namwanaguyau an elector, to procure his vote and that of other electors. I strike out the words "and that of other electors in the village". Otherwise, I am satisfied that the ground should go to trial.

19. Ground 3 (e) is similar to ground 3 (d). I strike out the words "and that of other electors in the village". Otherwise, I am satisfied that this ground should go to trial.

20. As to ground 3 (g), I strike out the words "and to induce him to procure the votes of other electors in the village by distributing the money to other electors in the village". Otherwise, I am satisfied that this ground should go to trial.

21. As to ground 3 (h), I am satisfied that this ground should go to trial.

22. As to ground 3 (i), I strike out "and that of other electors in the village by distributing the money to the villagers". Otherwise, I am satisfied that this ground should go to trial.

23. As to ground 4 (a), it does not plead that Bwasiwa Mosalupa received the cash with the knowledge or authority of the first respondent. This ground is struck out.

24. As to grounds 4 (b), (c), (d), (e), (f) and (g), I am of the view that it is not necessary to plead that the electors who allegedly received the cash were induced to endeavour to procure their own votes. These grounds should go to trial.

25. As to grounds 4 (h) and (i) they do not specify that Karidabala Mosivila acted with the knowledge or authority of the first respondent. These grounds are struck out.

26. As to ground 4 (j), I strike out "and that of other electors". Otherwise, I am satisfied that this ground should go to trial.

27. As to ground 4 (k), I strike out "and to distribute the money among other electors to procure the return of the first respondent at the election". Otherwise, I am satisfied that this ground should go to trial.

28. I am satisfied that ground 4 (l) should go to trial.

29. As to ground 4 (m), it does not specify that T. Dugudagula and U. Toironaki acted with the knowledge or authority of the first respondent. This ground is struck out.

30. Consequently I find that grounds 3 (h), 4 (b), (c), (d), (e), (f), (g) and (l) are to go to trial and grounds 3 (d), (e), (g), (i), 4 (j) and (k) less the parts that have been struck out, are to go to trial. 

__________________________________________________
Sirigoi Lawyers: Lawyers for the Petitioner
Dotaona Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second and Third Respondents