Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kramer v Duban [2013] PGNC 50; N5215 (26 March 2013)

N5215

PAPUA NEW GUINEA
In the National Court of Justice

EP No. 60 of 2012

Between:

BRYAN KRAMER
Petitioner

And:

NIXON PHILIP DUBAN
First Respondent

And:

ANDREW TRAVEN, Electoral Commissioner of Papua New Guinea (No.3)
Second Respondent

MADANG: Gavara-Nanu J.
2013: 26 March

PRACTICE AND PROCEDURE – Election petition – Application to stop the trial at the close of petitioner's case – No case submission- Court has wide discretion in deciding whether to stop the trial or not – Standard of proof to be applied.

PRACTICE AND PROCEDURE – Election petition –Bribery, attempted bribery and undue influence as grounds of the petition – Common Roll not being produced to prove that the persons allegedly bribed or unduly influenced were a registered voter is not fatal to the petition – Organic Law on National and Local Level Government Elections; ss. 131, 132, 133, 134 and 135 discussed.

Cases cited:

Ben Micah v. Ian Ling Stuckey N1790

Benny Diau v. Mathew Gubag SC775
David Arore v. John Warisan SC1030
Leonard Louma v. Douglas Tomuriesa [2012] PGNC 236, N4920
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Robert Lak v Paias Wingti [2003] PGNC 134, N2358

Counsel

Y. Wada,u for the petitioner
S. Jub,i for the 1st respondent
J. Umbu, for the 2nd respondent

1. Gavara-Nanu J: This is an application by the first respondent seeking orders to stop the trial after the close of the petitioner's case. Reliance was placed on the recent decision by the Court of Dispute Returns in Leonard Louma v. Douglas Tomuriesa [2012] PGNC 236, N4920. In that case the trial judge found that there was no evidence to support the grounds of the petition and dismissed all the grounds and stopped the trial at the conclusion of the petitioner's case. The learned trial judge said whether to stop the trial of a petition at the conclusion of the petitioner's case or not is a matter for Court's discretion. This is an established principle in this jurisdiction for which the learned trial judge relied specifically on a decision by Injia CJ, in David Arore v. John Warisan SC1030. In that case the learned Chief Justice said:
   

"case law establishes that no case submission is open in a trial in an election petition. The cases say that it is entirely a matter of discretion and "it would be open to a judge having regard to the terms of s. 217 of the Organic Law to stop the case, if it is clear that there is no evidence to prove any ground for invalidating an election."

2. The trial judge also noted in the judgment that the lawyer for the petitioner had conceded that no evidence was adduced in support of allegations of bribery and attempted bribery.
   
3. Some grounds of bribery and attempted bribery were dismissed because there was no evidence that persons the first respondent allegedly bribed or attempted to bribe were registered voters. Part of the learned trial judge's ruling reads:
   

"It has been held previously that it is necessary that a person allegedly bribed be an elector."

4. The trial judge cited Ben Micah v. Ian Ling Stuckey N1790 which was followed by the Supreme Court in Benny Diau v. Mathew Gubag (2004) SC775.
   
5. The trial judge went on to say:
   

"Given the above, the fact that a person allegedly bribed was at the material time an elector, is a material element that must be proved in an allegation of bribery in an election petition. Here, as submitted by counsel for the first respondent, from a review of the evidence adduced, there is no evidence that the persons allegedly bribed in grounds 3 (d) 3 (i) and 4 (j) are persons whose names appeared on the Common Roll as electors. That a person may have voted in the General Election is not evidence that he was entitled to vote. The Common Roll in respect of the persons allegedly bribed could have been produced to prove that they were electors. It was not. Grounds 3 (d), 3 (i) and 4 (j) are dismissed.

6. The applicant in this case argued that the Court should stop the trial here because there is no evidence to support elements of bribery, attempted bribery and undue influence. It was further submitted that there is no evidence that the persons allegedly bribed or unduly influenced by the first respondent or who the first respondent attempted to bribe were registered voters. It was argued that the Common Roll should have been produced to prove that these persons were registered voters. It was submitted that this is vital given that the standard of proof is beyond reasonable doubt. For this argument reliance was placed on Neville Bourne v. Manasseh Voeto [1977] PNGLR 298 and other cases which held that the standard of proof is beyond reasonable doubt or the criminal standard.
   
7. One of the cases cited by Injia CJ, in David Arore v. John Warisan (surpa) is Robert Lak v Paias Wingti [2003] PGNC 134, N2358. In that case, his Honour Kapi DCJ (as he then was) in deciding whether to stop the petition at the conclusion of the petitioner's case first looked at the grounds of the petition then considered the evidence before the Court to see if those grounds were supported by the evidence. His Honour dismissed grounds which he found were not supported by the evidence and ordered the grounds supported by evidence to go to trial. I propose to adopt that approach here as being convenient and effective way of dealing with the issues before me.
   
8. But before I do that, I should now comment on the contention by the first respondent that Common Roll should have been produced to prove that persons who were allegedly bribed or who the first respondent attempted to bribe and to unduly influence were registered voters. In regard to this issue I hold the view that where there is evidence before the Court showing that the person allegedly bribed or unduly influenced had voted in the 2012, national elections as is the case here, that to me is sufficient proof that the person was a registered voter. I hold this view based on s. 133 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE) which shows that a voter is allowed to vote only after he is verified by the electoral officials during polling that he is a person eligible to vote. Sections 133, 134 and 135 set out stringent screening processes or tests which a voter must go through and satisfy before he is allowed to vote. The fact that the person has voted in an election is to me the proof that he had been through the processes set out under ss. 131 to 135 thus proving his eligibility as a registered voter and voted. In such a case, there is no further need for him or for the petitioner to prove that he was a registered voter by producing a Common Roll. Such an approach by the Court would in my opinion defeat the purpose of ss. 131 to 135 of OLNLGE. In any event in this case there was no real challenge by the respondents in cross-examination that the persons allegedly bribed and or unduly influenced by the first respondent did vote in 2012, national elections. Therefore as I said earlier, the fact that there is evidence that they voted in 2012, national elections is proof to me that they were registered voters. In Ben Micah v. Ian Ling Stuckey (supra) and Benny Diau v. Mathew Gubag (supra) the Courts only said that there has to be evidence before the Court that the person bribed is a registered voter. That is in my respectful opinion in harmony with what I said here.
   

9. The approach I have adopted here even satisfies the standard of proof applied in Neville Bourn v. Manasseh Voeto (supra), in a full trial which is "to the entire satisfaction of the Court". I do not think the Court in that case said the standard of proof is beyond reasonable doubt. In any event this being an application which is equivalent to a 'No case' submission the standard of proof must certainly be lower than the standard of proof that would apply in a full trial. Even in a full trial the standard of proof cannot be 'beyond reasonable doubt' for the basic reason that an election petition is not a criminal trial.

10. Turning now to the grounds of the petition, having regard to the principles applied in Robert Lak v Paias Wingti (supra), I dismiss grounds 5.3 and 5.5 of the petition. In regard to ground 5.3 the person allegedly bribed has not given evidence, clearly this ground cannot be sustained. As to ground 5.5, the evidence given is in my view insufficient to sustain the ground. The evidence given by Tulilim Sanum who is a person allegedly bribed or unduly influenced by the first respondent has not given any evidence on events which happened on 13 June, 2012, which is the date the alleged offences were committed at Silibob village . He only gave evidence on events that took place at Yagaum Rural Lutheran Hospital on 11 June, 2012. The only evidence that is relevant to the events of 13 June, 2012, was given by Danny Gulul and Sera Dadok, but their evidence do not support each other. The evidence by Danny Gulul that he received K400.00 from the first respondent at Silibob village during a church conference and that the first respondent told the people at the gathering to vote for him are not supported by Sera Dadok. The latter says he did not see the first respondent give K400.00 to Danny Gulul and he did not hear the first respondent tell the gathering to vote for him. He said those events may have happened when he was sitting some distance away from main gathering inside the church. Thus there is insufficient evidence to support and sustain this ground. Both grounds are therefore dismissed.
    
11. As to grounds 5.2 and 5.4 of the petition which allege bribery and undue influence, I find that the grounds are properly based, there is evidence supporting the two grounds. There is evidence that the people received money from the first respondent. Thus, having regard to the provisions of s. 217 of OLNLGE, I consider that there are substantial merits of the case which warrant these two grounds to be tried. I therefore order that grounds 5.2 and 5.4 be tried.
    
12. Application is dismissed.
    
13. Costs of the application be costs in the cause.
    

__________________________________

Young Wadau Lawyers : Lawyers for the petitioner
Twivey Lawyers : Lawyers for the first respondent
Harvey Nii Lawyers : Lawyers for the second respondent