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Leonard v Wesley [2014] PGNC 368; N6552 (29 November 2014)

N6552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


E.P. NO. 65 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 SAMARAI-MURUA OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS



BETWEEN:


ISI HENRY LEONARD
Petitioner


AND:


GORDON WESLEY
First Respondent


AND:


ANDREW TRAWEN
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent


Alotau: Kariko, J

2014: 18th & 19th, 22nd – 24th September, 4th October & 29th November


ELECTION PETITION –Bribery by successful candidate – Standard of proof – Whether allegations proved – section 103, Criminal Code.


ELECTION PETITION – Bribery by person other than successful candidate – Knowledge and authority – Meanings – Standard of proof – Whether allegations proved – section 103, Criminal Code – section 215, Organic Law on National and Local Level Government Elections.


Facts:


The petitioner challenged the election of the first respondent for the Samarai-Murua Open electorate in the 2012 general elections on grounds of bribery.


Held:

(1) An election will be declared void if the Court finds that a candidate has committed bribery; section 215(1) of the Organic Law of the National and Local Level Government Elections.

(2) An election will be declared void if the Court finds that a person has committed bribery with the knowledge and authority of a successful candidate; section 215(3) of the Organic Law of the National and Local Level Government Elections.

(3) “bribery” in Section 215 of the Organic Law on National and Local Level Government Elections refers to the offences of bribery under section 103 of the Criminal Code.

(4) The standard of proof is to the entire satisfaction of the Court and that is equivalent to or just short of the criminal standard of proof.

(5) Only one of the five grounds of bribery that went to trial was properly proved.

(6) The first respondent, being a successful candidate at the 2012 general election, committed bribery and his election was therefore declared void.

Cases cited:


Aide Ganasi v Sali Subam (2013) SC1277
Application by Ben Semri (2003) SC723
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342
Ken Fairweather v Jerry Singarok & Electoral Commission (2013) SC1293
Neville Bourne v Manasseh Voeto (1977) PNGLR 298
Paru Aihi v Peter Isoaimo (2013) SC1276
Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921
Peter Waranaka v Gabriel Dusava (2009) SC980
Sir Arnold Amet v Peter Charles Yama (2010) SC 1064


Legislation:
Organic Law on National and Local Level Government Elections
Criminal Code


Counsel:
Ms D Mewerimbe, for the Petitioner
Mr A Kongri, for the first Respondent
Mr C Okil, for the second Respondent


JUDGEMENT


29th November, 2014


  1. KARIKO J: The petitioner Isi Henry Leonard who was the runner-up to the first respondent Gordon Wesley in the 2012 general elections for the Samarai-Murua Open electorate Milne Bay Province, filed this petition pursuant to the Organic Law on National and Local Level Government Elections (the Organic Law) challenging the validity of the election and return of Mr Wesley.


The petition


  1. Mr Leonard mounted his petition on eleven (11) grounds of bribery that allegedly occurred after the issue of the election writ on 18th May 2012, seeking to have the election and return of Mr Wesley declared void in accordance with section 215 of the Organic Law.
  2. After hearing an objection to competency filed by Mr Wesley, four of the alleged grounds of bribery were struck out while the balance (Grounds numbered 1,4,5,6,8,9 and 10) were ordered to go to trial.

  1. At the commencement of the trial, counsel for the petitioner informed the Court that his client would not be calling evidence in respect of Grounds numbered 1 and 4, so those grounds were abandoned.

The grounds of bribery


  1. The grounds of bribery that proceeded to trial are referred to in full later but for now I summarize them:

Ground 5


That on 1st June, 2012 at Bagilina village, Misima, a supporter and campaign co-ordinator for the first respondent Gordon Wesley named Solomon Sete gave an elector Dasenta Duigu K500.00 cash to induce her to vote for Mr Wesley in the elections and this was done with the knowledge and authority of Mr Wesley.


Ground 6


That on 27th of May 2012, Solomon Sete gave K10.00 and a bolt of material to an elector Karol Kawate of Bagilina village, Misima to induce him and the electors of Bagilina to vote for Gordon Wesley in the elections and this was done with the knowledge and authority of Mr Wesley.


Ground 8


That on the 25th of May, 2012, Gordon Wesley and his campaign coordinators and protocol officers delivered 2 outboard motor engines to electors Heliah Josaiah and Billy Seiki at Bwagabwaga village, Misima. On 14th June 2012, Mr Wesley also delivered a banana boat to Billy Seiki. The engines and the boat were given to induce the electors to vote for Mr Wesley in the elections.


Ground 9


That on 6th June, 2012, Solomon Sete gave K350 to an elector Milika Iso of Bwagabwaga village, Misima to induce the members of the Bwagabwaga United Church Women’s Fellowship Group to vote for Gordon Wesley in the election and this was done with the knowledge and authority of Mr Wesley.


Ground 10


That on 23rd May, 2012 at the West Liak village, Misima Island, Gordon Wesley presented the keys of PMV “Mulolu” to the ward councillor of Bagilina village Steven Stanley to induce the electors of Bagilina to vote for him in the election.


The issues

  1. The issues for my determination are:

Evidence


  1. For the petitioner, the following witnesses were called and their respective affidavits admitted into evidence by consent:
  2. Similarly, these witnesses were called by the first respondent and their respective affidavits tendered by consent:
  3. A number of documents were also received into evidence by consent and they were:

The Law

  1. The relevant legislative provisions to consider in this petition are s.215(1) and (3)(a) of the Organic Law and s.103(a)(iii) of the Criminal Code (the Code).
  2. Section 215 of the Organic Law provides:

“215. Voiding election for illegal practices.


(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void

(2) ...........

(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void-

(a) on the ground of an illegal practice committed by a person other than a candidate and without the candidate’s knowledge or authority, or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence.


unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

(My underlining)


  1. The Supreme Court in Ken Fairweather v Jerry Singarok (2013) SC 1293 explained that Section 215 of the Organic Law provides for six scenarios in which the election of a successful candidate can be declared void, including:
  2. As to what constitutes bribery as a ground for invalidating an election pursuant to section 215 of the Organic Law, the courts have referred to the criminal offences of bribery found under section 103 of the Criminal Code; Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921.
  3. Section 103 of the Code reads:

“103. Bribery


A person who-


(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 as an elector; or


(ii) on account of 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

..........................................................


.....is guilty of a misdemeanour.”

(My underlining)


  1. In Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (supra), Cannings, J summarised the law on bribery as an electoral offence and identified the elements of the various circumstances that may constitute the offence including section 103(a)(iii) of the Code, which I endorse. Under this provision the petitioner must prove (for the purposes of the present case) that the successful candidate:
  2. In relation to the terms ‘knowledge’ and ‘authority’ found in section 215(3)(a) of the Organic Law Salika, DCJ and Batari, J in their joint judgement in the case of Sir Arnold Amet v Peter Charles Yama (2010) SC1064 decided the terms “must necessarily denote a pre-existing state of knowing or authorizing an illegal practice or acts of undue influence. The knowledge of the illegal act or undue influence must be present prior to and at the time of occurrence of the illegal act or undue influence. Similarly, the candidate prior to the event must have given or delegated a supporter, agent or servant authority to commit an illegal act or undue influence on his behalf.” I consider the meanings accorded to the terms by their Honours to be appropriate.
  3. As bribery involves the application of the serious criminal offence of bribery prescribed under s. 103 of the Code, the petitioner bears the onus of proof in proving the allegations. The standard of proof is to the entire satisfaction of the Court and that is equivalent to or just short of the criminal standard of proof, namely proof beyond reasonable doubt; see Neville Bourne v Manasseh Voeto (1977) PNGLR 298; Peter Waranaka v Gabriel Dusava (2009) SC980; Aide Ganasi v Sali Subam (2013) SC1277.

  1. When dealing with the evidence in an election petition, the court is not bound by technical and legal rules of procedure and evidence, but it must be guided by “the substantial merits and good conscience of each case” pursuant to s.217 of the Organic Law; see Application by Ben Semri (2003) SC723; Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.
  2. While the Courts must protect the integrity of the electoral process if correctly conducted, any improper or illegal practice or conduct that compromised the process must be checked.

Determination of the allegations


  1. Bearing in mind the above relevant principles and pronouncements of law, I now note the alleged grounds of bribery, consider the relevant evidence in respect of each of them, and make my findings regarding those allegations.

Ground 5: Alleged bribery of Dasenta Duigu


  1. This ground of the petition reads:

“On Friday, 1st June, 2012, one strong supporter and campaign coordinator of the First Respondent namely one Solomon Sete gave, an elector, member and treasurer of the United Church Women Fellowship of Bagilina village namely Dasenta Duigu the sum of K500.00 cash.


When the payment was made, Mr. Solomon Sete told elector Dasenta Duigu that the sum of K500.00 was given by the First Respondent to her for some services rendered during his campaign launching at Liak village on 23 May 2012 although payment for those services were already settled.


The payment of these monies were done to induce elector Dasenta Duigu of Bagilina village, Misima island with the intention to induce her to vote for the First Respondent. The payment did induce the elector, Dasenta Duigu and she did in fact vote for the First Respondent because of the payment of K500.00.


The conduct and action of Solomon Sete, a strong supporter and campaign coordinator of the First Respondent was done to induce elector Dasenta Duigu to vote for the First Respondent and this was with the knowledge and authority of the First Respondent.”


  1. There is no dispute that Dasenta Duigu is an elector and that Solomon Sete did present K500 to the United Church Women Fellowship of Bagilina village. But there is dispute whether the money was actually presented to Dasenta Duigu; whether the money was given to influence the members of the Fellowship Group to vote for Mr Wesley; and whether that was done with the knowledge and authority of Mr Wesley.

  1. The petitioner’s evidence in support of this alleged bribery was given by Dasenta Duigu. She basically said that the money was given to her for the Fellowship Group on 1st June 2012 by Solomon Sete for some catering provided by the Fellowship Group the previous month. She further testified that when the money was given to her, Solomon Sete told her and other members of the Fellowship Group to give their votes to Gordon Wesley and John Luke Critten a candidate for the Milne Bay provincial seat. She said she was aware that Solomon Sete was a campaign co-ordinator for both Mr Wesley and Mr Critten.
  2. The evidence was contradicted by the first respondent’s witnesses (Solomon Sete, Steven Stanley and Mwadon Asela).who told the Court that the money was given to the Fellowship Group in the presence of its members Lina Tiola, Lalies Owen, Tibia Donald and Olive Lindsay to provide food for the upcoming PNC Party campaign launching on 21st June at Eiaus village. Mr Sete denied he was the campaign co-ordinator for Mr Wesley and denied he uttered the words of inducement alleged by Dasenta Duigu.
  3. In my view, Mrs Duigu was not totally truthful. She seemed uncertain about her evidence. She was unable for example to properly describe the nature and details of the catering the money was supposedly for. She admitted to knowledge of the PNC campaign launching at Eiaus village although she was not aware that her Fellowship Group provided food for that occasion. This is in contrast to the strong evidence by Solomon Sete and corroborated by Steven Stanley and Mwadon Asela, both ward councillors of Bagilina. The councillors testified the K500 payment was made in their presence and for the purpose explained by Solomon Sete.
  4. The petitioner contended that Solomon Sete was a campaign co-ordinator for Mr Wesley. This claim was categorically denied by both Solomon Sete and Mr Wesley who were adamant that Mr Sete was campaign co-ordinator for Mr Critten only, and Mr Wesley also explained that his campaign co-ordinator was Jerry Miller. Both men confirmed that they were rival candidates in the two previous elections and since then Mr Sete had become a member of the Provincial Assembly and appointed Chairman of the Economic Sector in the Provincial Executive Council. Mr Sete explained that mainly due to family considerations, he decided not to contest the 2012 elections.
  5. The evidence was unchallenged but the petitioner urged the Court to find that the payment was made with the consent and authority of the first respondent because:
  6. Although there is some merit in that argument, it is my opinion that without more it falls far short of the requisite standard of proof that the K500 payment to the Bagilina Women Fellowship Group was with the consent and authority of Gordon Wesley.
  7. This ground of alleged bribery is dismissed.

Ground 6: Alleged bribery of Karol Kawata


  1. This ground of the petition reads:

“On Sunday 27th of May, 2012, a strong supporter and campaign coordinator for the First Respondent, namely Solomon Sete approached an elector namely Karol Kawate of Bagilina village, Misima island and gave him K10.00 and said that the K10.00 cash was a gift from the First Respondent and that he should think of the First Respondent on the polling day.


The strong supporter and campaign coordinator for the First Respondent namely Solomon Sete also delivered to elector Karol Kawata a bolt of material for the electors of Potou section of Bagilina village, Misima island and Mr. Solomon Sete told Karol Kawate to tell the electors of Potou section of Bagilina village that these bolt of materials were from the First Respondent.


The conduct and action of Mr. Solomon Sete in distributing cash and material goods to Mr. Karol Kawate, an elector, was done to induce him and the electors to vote for the First Respondent and this was done with the knowledge and authority of the First Respondent.”


  1. In relation to this alleged bribery, there is no dispute that Karol Kawata is an elector and that K10 and a bolt of material was given to him. What is disputed is whether the items were given by Solomon Sete; whether they were given to influence Karol Kawata to vote for Mr Wesley; and whether that was done with the knowledge and authority of Mr Wesley.
  2. Karol Kawata offered evidence in support of this alleged bribery. While he initially testified that it was Solomon Sete who offered him the money and the material on 27th May 2012, he later agreed in cross-examination that it was in fact Mwadom Asela who presented the items but to Terence Sam who in turn passed them to him. Karol Kawate also confirmed that he did not know Solomon Sete then and Solomon Sete was not present at the time.
  3. The petitioner’s evidence clearly does not support the facts pleaded in the petition. The alleged ground of bribery has not been made out to the requisite standard and must therefore be dismissed.

Ground 8: Alleged bribery of Heleia Josiah and Billy Seki


  1. This ground of the petition reads:

“On the 25th of May, 2012, the First Respondent and his campaign coordinators and Protocol Officers went to Bwagabwaga village, on the Samarai-Murua Barge and delivered 2 x 40 HP Yamaha Outboard Motor engines.


An elector by the name of Hileia Josaiah received the 1 x 40 HP Yamaha round head (short shaft) out Board motor engine whilst the other elector namely Mr. Billy Seiki received the 1 x 40 HP Square head (short shaft) outboard motor engine.


The elector, Billy Seiki, also received a 19 feet Banana Boat from the First Respondent on 14th June 2012. These material goods and machinery items were delivered by the First Respondent and witnessed by one elector namely Iso Nelson of Bwagabwaga village, Misima island.


The First Respondent made deliveries of these material goods and machinery items to electors during the campaign period with the intention to induce the electors to vote for the First Respondent in the election.”


  1. In respect of this alleged bribery, there is no dispute that on 25th May 2012 the described outboard motors arrived on the barge MV Samarai-Murua and they were delivered to Bwagabwaga village where they were received by electors Heleia Josiah and Billy Seiki. It is also not disputed that the described banana boat was delivered to Billy Seiki.
  2. There was no evidence however that the first respondent, either alone or together with his with campaign co-ordinators and protocol officers presented the engines and banana boat as alleged. The motor engines were taken to the village on Heni Andrew’s dinghy and left at Arthur Nickson’s house where they were collected by Heleia Josiah and Billy Seiki in Arthur Nickson’s absence.
  3. The banana boat was towed to Bwagabwaga by the MV Olalo and picked up by Billy Seiki. The evidence relied upon to implicate the first respondent came from Iso Nelson who stated that Heleia Josiah and Billy Seki told him the goods were gifts from Gordon Wesley. That evidence is hearsay and cannot be relied upon.
  4. There is no credible evidence upon which I am able to properly find that the items were indeed from Gordon Wesley or that they were given to induce Heleia Joseph and Billy Seiki as electors to vote for him (Gordon Wesley). The petitioner’s evidence clearly does not support the facts pleaded in the petition, and this alleged ground of bribery must also be dismissed.

Ground 9: Alleged bribery of the Women’s Fellowship Group, Bwagabwaga


  1. This ground of the petition reads:

“On 06 June, 2012, a strong supporter and coordinator for the First Respondent namely Mr. Solomon Sete was at Bwagabwaga village campaigning for the First Respondent and Provincial candidate John Luke Critin.


After the campaign, Solomon Sete, met Mrs. Milika Iso of Bwagabwaga village, an elector, who is the President of the United Church Women Fellowship Group and gave the sum of K350.00 cash for the United Church Women Fellowship Group. Mrs. Milika Iso gave the K350.00 to a Nancy Hileia, an elector and treasurer of the United Church Women Fellowship Group.


This payment of K350.00 by the strong supporter and campaign coordinator of the First Respondent was not requested for nor was it solicited by the Bwagabwaga United Church Womens’ Fellowship Group but was paid with the intention to induce the members, who are electors, including Mrs. Milika Iso, to vote for the First Respondent.


This action and conduct of Mr. Solomon Sete, a strong supporter and campaign coordinator for the First Respondent was done with the knowledge and authority of the First Respondent.”


  1. In relation to this alleged bribery, there is no dispute that Milika Iso is an elector and Solomon Sete presented K350 to the United Church Women Fellowship Group of Bwagabwaga village. What is disputed is whether the money was actually presented to Milika Iso; whether it was given to influence members of the Fellowship Group to vote for Mr Wesley; and whether that was done with the knowledge and authority of Mr Wesley.
  2. Milika Iso testified in support of this claim of bribery. In essence her evidence was that on 6th June 2012 Solomon Sete presented her as President of the United Church Women Fellowship Group of Bwagabwaga K350 for no reason except that he urged the members of the Fellowship Group to vote for Gordon Wesley. She told the Court she knew Solomon Sete to be the campaign co-ordinator for both Mr Wesley and Mr Critten.
  3. The evidence was contradicted firstly by Solomon Sete who denied being a campaign co-ordinator for Gordon Wesley. He admitted presenting the K350 but said the money was handed to the Treasurer of the Fellowship Group for food to be prepared for the upcoming PNC Party launching at Eiaus village. Other women’s groups asked in similar fashion to supply food for the launching included those from Bagilina, Ewena, Ebora, Awaibi and Bwana villages. Solomon Sete’s version was supported to an extent by Nickson Arthur who testified that he helped transport the food prepared by the United Church Women Fellowship Group of Bwagabwaga to the PNC Party launching at Eiaus village. The evidence by Solomon Sete and Nickson Arthur were consistent, strong and largely unchallenged.
  4. Again, the petitioner urged the Court to find that the payment was made with the consent and authority of the first respondent because:
  5. As I noted earlier, while there is some merit in those submissions, the evidence does not meet the requisite standard of proof that the payment of the K350 to the United Church Women Fellowship Group of Bwagabwaga was done with the consent and authority of Gordon Wesley.
  6. I must dismiss this alleged ground of bribery.

Ground 10: Alleged bribery of Bagilina villagers


  1. This ground of the petition reads:

“On the afternoon of Wednesday 23 May, 2012, at the West Liak village on the North Coast of Misima Island, the First Respondent presented the car “keys” of PMV “Mulolu” to the ward councillor of Bagilina village namely Mr. Steven Stanley.


During the presentation, the First Respondent said that the PMV truck was for the benefit of the Bagilina community and that all electors of that community who vote for him were to benefit from the use of the PMV truck.


The First Respondent said that the electors of Bagilina village were fortunate to receive this PMV truck from him and that he expected them to vote for him in return. As requested, the electors of Bagilina village voted for him and the First Respondent scored 1009 votes from this village.


This payment was witnessed by one Donigo Israel of Bagilina village, Misima island, an elector and member of the Bagilina village and community, he was also a beneficiary of the PMV Truck given by the First Respondent as he voted for the First Respondent.


The presentation of this PMV Truck by the First Respondent to the electors of Bagilina village, including electors Steven Stanley and Donigo Israel, during the campaign at Bagilina village was intended to induce the electors to vote for him in the election.”


Petitioner’s evidence re: Ground 10


  1. The petitioner’s main witness was Donigo Israel who confirmed that in 2009, the Bagalina Ward Development Committee requested Mr Wesley as their local Member of Parliament for a vehicle for the Bagilina community which produces some of the best garden food. The request was made because there was a need for a vehicle to transport garden produce from the villages to the Bwagaoia market. He was aware that a PMV truck was bought and was in Alotau. He testified that on 23rd May 2012, he was present with many others at West Liak village when Gordon Wesley launched his campaign for the 2012 elections. During that launching, Gordon Wesley formally presented the vehicle keys to the PMV named “Molulu” to Steven Stanley the Bagalina Ward Councillor. Gordon Wesley gave a short speech and said the vehicle was for the people of Bagalina to transport garden produce to the markets. He (Donigo Israel) was very happy with this and both he and Steven Stanley responded and thanked Gordon Wesley. Mwadom Asela presented 5 baskets of food and 1 pig to Gordon Wesley.
  2. The petitioner also produced photographs that showed that the barge MV “Samarai-Murua” arrived on the morning of 23rd May 2012 laden with goods including the PMV truck “Molulu” positioned in the front of the barge. The bridge of the barge was decorated with election posters of Gordon Wesley. There were young men wearing supporters T-shirts inscribed with Gordon Wesley’s name and these men are seated around musical instruments. Evidence was presented during the trial that the barge arrived with a live band.

Respondent’s evidence re: Ground 10


  1. Mr. Wesley’s evidence was he travelled on the MV “Samarai-Murua” to Bwagoia the Misima District Administration Headquarters, to nominate for the elections and launch his campaign, and that he arrived at the station on 23rd May 2012. He confirmed that the barge was loaded with goods for the Misima District bought by DSIP funds for individuals, communities and church and other groups of the District, including the PMV truck “Molulu” for Bagilina.
  2. Mr Wesley explained that goods purchased with DSIP funds for Misima were usually stock piled in Alotau in one of his private yards until their transportation by sea to Misima when an appropriate vessel became available.
  3. In September 2009, the Bagalina Ward Development Committee requested by letter for a vehicle to assist them transport their garden produce to the market at Bwagaoia. The Joint District Planning & Budget Priorities Committee approved the request in August 2010, the vehicle was bought in Port Moresby in December 2011 and shipped to Alotau in January 2012. Members of the Bagalina Ward Development Committee came and took delivery of the vehicle in February 2012 in Alotau. They fitted it out as a PMV and wrote its name “MULOLU” on its front. The vehicle was used on a few occasions in Alotau while waiting for it to be transported to Misima.
  4. After delivery of DSIP-funded goods to Rossel Island and other smaller outer islands in early May 2012, the goods stored in his yard for Misima were loaded onto the MV “Samarai-Murua” and the barge departed on 22nd May 2012 with Mr Wesley on board arriving at the Bwagaoia wharf early next morning. The District Administration paid for the barge.
  5. The PMV truck “Mulolu” was the first item removed after the barge landed. Mr Wesley’s supporters came onto the barge, dressed him in traditional costume and carried him off the barge to the District Headquarters where supporters paid his nomination fee and he nominated for the elections. He then handed over the list of the goods on the barge to the District Administration and advised the President of the Louisiade LLG to oversee the proper distribution of the goods.

  1. He was next taken to West Liak for his campaign launching that had been organized by his supporters. While there, Councillor Steven Stanley of Bagilina asked him if he could officially hand over the keys of the PMV truck. He accepted the request because it was made by a community leader, and he formally presented the keys to the Councillor. He gave a short speech to the people of Bagalina telling them to take ownership of the truck to serve their needs. Steven Stanley and Donigo Israel responded and thanked him for the truck. After presenting the keys, he launched his campaign. He firstly thanked the supporters for paying his nomination fee and informed them that he had written policies that would be distributed. He took this course because of previous experience with election disputes regarding statements made in previous election campaigns.
  2. He spent the night at West Liak village, the whole of the next day at Bwagoia station and he returned to Alotau on the MV “Samarai-Murua” on the evening of 25th May 2012.
  3. Steven Stanley and Mwadom Asela basically corroborated Mr Wesley’s evidence in relation to the request for the purchase of the truck, the purchase of the truck, its transportation to Bwagoia, and the presentation of the keys on 23rd May 2012 at West Liak. Mwadom and the driver Justin removed the truck from the barge, had it washed at the river and then drove it to West Liak village where Councillor Stanley requested Gordon Wesley to formally present the keys.

Findings re: Ground 10


  1. The critical question from the evidence is whether the presentation of the keys amounted to an inducement for electors of Bagilina to vote for Mr Wesley in the elections?
  2. In assessing the evidence, I have been mindful of s.217 of the Organic Law. So for example, I have not accepted the submission not to give weight to the affidavits of the petitioner’s witnesses including Donigo Israel whose affidavits were not properly sworn. The affidavits were tendered without objection, the witnesses confirmed their contents and they gave oral testimonies in support of their written statements.
  3. Counsel for Mr Wesley argued that the only factor against his client is the fact that the presentation of the truck keys was done on the same day Mr Wesley nominated and launched his campaign. Otherwise, the presentation was innocent – that it was not part of the campaign launch; that it was done out of respect for a community leader and at that leader’s request; that the truck was purchased from DSIP funds following proper procedures and transported to Bwagoia when transport became available; that it was Bagilina villagers independent of him who took the vehicle off the barge and drove it to the campaign launch at West Liak; and he never asked those present during the presentation to vote for him.
  4. Mr Kongri for the first respondent further argued that this case ought to be treated similar to how Cannings, J dealt with an allegation of bribery in the case of Jerry Singirok v Ken Fairweather (2014) N5577 where Ken Fairweather as the local Member of Parliament, participated in the dedication of a tractor that the villagers had taken ownership of a month earlier. With respect, the facts and circumstances of the present case are not as simple as in the cited case. The formal presentation of the PMV truck in the present matter was included in what in my view was a properly planned and elaborated campaign launch.
  5. Mr Okil for the second respondent, the Electoral Commissioner in stating that the requisite intention depends on the facts and circumstances, argued that the Court should find that Mr Wesley did not have the requisite intention for the offence of bribery under s.103(a)(iii) of the Code because there was no pre-planning of the presentation of the keys; it was not an elaborate stage-managed affair; and he was only carrying out his function as the Member of Parliament for the electorate. I hold a contrary view that I will further explain.
  6. In considering the point whether Mr Wesley was obliged as the local MP to formally present the vehicle keys, I endorse and take into account the very relevant remarks of Kandakasi, J in Paru Aihi v Peter Isoaimo (2013) SC1276 firstly at paragraph 100:

“Taking into account the seriousness of the offence of bribery and its serious adverse consequence on our society, and the purpose of enacting the provisions of s. 103 of the Criminal Code and s. 215 of the Organic Law on Elections, I am respectful of the view that the decision and approach in Genia v. Temu and Thompson v Pokasui are correct. Just because a culture or custom as come into existence, does not necessarily follow that it is right. It is time now to identify what kind of conducts or activities are acceptable in our country during election times and which kinds of conduct and behavior are not acceptable..”,


then at paragraph 102:


“Giving gifts and throwing up of big or small parties and feasts are good. However what makes them wrong is when they are employed to influence an election outcome in the case of an election setting. If people want to give gifts or throw up parties there should be no problem if they take place well before an election year and certainly not immediately before the issuance of writs, commencement and during campaigning and election periods...”,


and at paragraph 104:


“I note that it is not the duty of elected members to be involved in the actual delivery of goods and services. In a good democracy, elected leaders are only responsible for the making of policy decisions and setting the agenda for nation building. The actual delivery on the policies resulting in tangible goods and services reaching the people is often left without exception to the public service....”,


and at paragraph 105:


“In our country, it is common occurrence now for politicians to go around with brief cases full of cash and cheques, most of the time, not necessarily theirs but mainly out of public funds which are rightfully due to the people and give them out as if the funds are coming from their own pockets. In my humble view, this is quite mischievous and clearly fraudulent if not a misrepresentation at a grand scale intended to unduly influence election outcomes. This is certainly dishonesty at its best. It also represents unfair play and disadvantage against others who are not yet in power but who do have good ideas and plans to take our country to the next level but do not have much money at their disposal.”


(My emphasis above)


  1. When asked why he could not have flown in to Bwagoia to nominate rather than travel with the DSIP goods on the barge as there was evidence of three flights per week to Bwagoia from Alotau, Mr Wesley gave a very vague and general answer that there were no flights because of bad weather. The writs were issued on 18th May 2012 so Mr Wesley would have this Court believe that for 5 days up to when the MV Samarai-Murua left for Bwagoia, he could not get a flight to Bwagoia because of bad weather. He did not have to travel on the barge. He could have gone later and separately and he did not explain why he could not have done so.
  2. I have no doubt that Mr Wesley travelled on the MV Samarai-Murua as an integral part of his campaign launching. He travelled with a barge full of goods purchased by DSIP funds. The barge was used as a campaign vessel rather than a public transport. It was decorated with Mr Wesley’s election posters and he had a live band on board. Music has become a tool of campaigning in PNG elections and it is common knowledge that live electric bands attract crowds. Not only did Mr Wesley intend to arrive at Bwagoia in style but in an elaborate way.
  3. The whole programme for the day had to have been planned. When the barge arrived, his campaign manager Jerry Miller was at the wharf. There were many people also there to meet the vessel. The PMV “Molulu” which was prominently located in the front was the first item to be off-loaded. I have no doubt that the arrival of the barge was to impress to the people that their Member of Parliament had come to deliver them the goods he had acquired for them (although they were in reality obtained through public funds). The supporters boarded and dressed him in traditional gear. They carried him to his nomination. He then handed the goods to the District Administration before proceeding to his campaign launch at West Liak where a large group of people had gathered.
  4. The presentation of the truck keys preceded the formal campaign launch. To my mind, the presentation had to be part of the programme for the launch. It was a significant event because it was something of real benefit to the Bagilina community and the message to the crowd including electors of Bagilina signified by the presentation was that Mr Wesley acquired the truck for Bagilina. The ordinary villager would have seen this event as signifying a gift from Mr Wesley rather than an item purchased through DSIP funds. I am satisfied that Mr Wesley intended to induce the electors of Bagilina including Donigo Israel to vote for him.
  5. When asked why he did not decline the request to present the truck keys, Mr Wesley said he obliged because he was asked by a leader, a councillor. But could he have not explained to the councillor that it would not be a good look and might be misinterpreted as an inducement. Mr Wesley said his campaign did not include any formal speeches as all his policies were written down for distribution because of previous election disputes. One would think that because of those previous experiences he would have resisted the invitation by the councillor. I do not consider Mr Wesley’s explanations as credible.
  6. Even if I am wrong about the presentation of the truck and keys being pre-planned, then I consider that Mr Wesley seized the opportunity and used the occasion and the prevailing circumstances and I am satisfied it was with the intention to influence and induce the electors to vote for him.
  7. I find therefore that Gordon Wesley, a candidate in the last national elections, formally gave a PMV truck (by presenting its keys) to Ward Councillor Steven Stanley on behalf of the Bagilina community for the use and benefit of the people of Bagilina in order that the electors from Bagilina including Donigo Israel would vote for him in the elections. In my opinion, the necessary elements of section 103(a)(iii) of the Criminal Code have been properly made out.

Conclusions


  1. In the end, I find only one of the five grounds of bribery tried in this election petition has been proved to my entire satisfaction. As the first respondent, being a candidate at the 2012 general election, committed bribery and that because he was the successful candidate his election as the member for the Samarai-Murua Open electorate in the 2012 national general elections must be declared void.
  2. The Registrar is obliged to report the act of bribery to the authorities referred to in section 216 of the Organic Law and to forward a copy of the Court’s order to the Clerk of Parliament under Section 221 of the Organic Law. Under Section 226(c) of the Organic Law that there shall be a new election.
  3. I will hear the party on costs.

Orders


  1. This Court orders that:

Judgment accordingly,
_______________________________________________________________
Mawa Lawyers: Lawyers for the Petitioner
Twivey Lawyers: Lawyers for the first Respondent
Parua Lawyers: Lawyers for the second Respondent

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