N7399

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 77 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURNS FOR THE EASTERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN:
SIMON BINTANGOR SIA
Petitioner

AND
PETER NUMU
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka: Anis J
2018: 7 & 8 August

ELECTION PETITION – Objection to the use of video footage – video footage not attached as an annexure – witness seeking to tender the video footage to support content of his deposition – Sections 212 & 217 of the Organic Law on National and Local-level Government Elections discussed – whether the Evidence Act Chapter No. 40 and the National Court Rules apply

Facts

At trial, the first respondent objected to the petitioner’s first witness tendering of a video footage.  The witness wanted to tender the video footage to support what he had viewed in the said video footage which he had deposed to in his affidavit.  

Held

1.	Section 217 of the Organic Law on National and Local-level Government Elections shall apply and shall supersede the application or strict application of the Evidence Act Chapter No. 40.

2.	The pleadings in the petition were sufficient enough to constitute or give notice to the respondents that the petitioner would be relying on the video footage at the trial of the matter.

3.	Both respondents had every opportunity to request or discover documents, including the production of the video footage, from the petitioner as of 13 September 2017, but they had failed to do so.

4.	The first respondent’s argument that there was a lack of notice given by the petitioner to him, to tender the video footage, is baseless.

5.	To observe real justice, this Court would have nevertheless, pursuant to sections 212 and 217 of the Organic Law on National and Local-level Government Elections, directed the production of the video footage to the Court, that is, in order for the Court to fully appreciate and consider the merit or want of merit of the grounds of the petition as well in considering the arguments the respondents will raise in opposing the petition.

6.	The objection is refused with a consequential order which is that the first respondent is at liberty to file additional affidavits or call additional witnesses only in response or in relation to the content of the tendered video footage.

Cases cited:

Thompson v. Pokasui [1988] PNGLR 210
John Warisan v. David Arore (2013) N5217
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Ginson Goheyu Saonu v. Bob Dadae (2004) SC763
Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5323
Simon Bintagor Sia v. Peter Numu and 1 Or (2018) N7106
Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342
Review Pursuant to the Constitution s.155(2)(b): Application by the Electoral Commission; Re Southern Highlands Elections Act 1979 [1991] PNGLR 372

Counsel:

Mr Tom Sirae, for the Petitioner
Mr Andrew Kongri, for the First Respondents
Mr W Kaum, for the Second Respondent

RULING

8th August, 2018

1.	ANIS J:	The trial for this matter commenced on 6 August 2018.  The petitioner called his first witness Abraham Rolu.  During examination in chief, the witness was about to tender a video footage, which he had deposed to as part of his sworn evidence when the first respondent objected.  Parties were given time to file submissions on the objection, and the matter was adjourned to 9:30am on 7 August 2018.

2.	On 7 August 2018, the Court heard arguments from the parties.  The second respondent supported the first respondent’s objection.  The petitioner opposed the objection.

3.	I reserved my decision thereafter to 9:30am today.  The matter was further deferred to 11am this morning.  This is my ruling.

GROUNDS

4.	The first respondent gave two (2) reasons for objecting to Mr Rolu tendering the video footage.  His counsel submits that the petitioner did not notify them that the video footage would be tendered as an evidence at the trial.  Counsel submits that they are now taken by surprise or are informed at the 11th hour.  The second reasons is this.  The first respondent submits that since there was no warning given, the Evidence Act Chapter No. 40 (the Evidence Act) precludes evidence such as the video footage from being introduced at the last minute.  The second ground is obviously made in reference to Part IV Division 5 Electronic Evidence of the Evidence Act.

5.	The second respondent supports the objection raised by the first respondent.  Its main argument is based on alleged failure by the petitioner to comply with Order 11 Rule 24 of the National Court Rules.  The said rule in summary states that if a document is to be attached to an affidavit and if it is convenient to do so, it shall be so attached as an annexure to the affidavit.  But if the document is not convenient to be attached to the affidavit as an annexure, the document may be attached as an exhibit and if that is the case, it must be identified by a certificate to show that it is part of the affidavit.  The second respondent also refers to rule 22 of the Election Petition Rules and Order 1 rules 7 & 8 of the National Court Rules.  In summary, these rules deal with dispensation of compliance of the court rules.  The second respondent’s argument is that since the petitioner had not formally sought dispensation under the National Court Rules or under the Election Petition Rules, he was required to comply with the strict requirements of Order 11 Rule 24 of the National Court Rules, and because he has not done that, the objection should be upheld.

6.	As for the petitioner, he submits as follows:  He says that pursuant to section 217 of the Organic Law on National and Local-level Government Elections (OLNLGE), the National Court is not bound by the strict or technical rules of evidence.  He says the witness therefore is entitled to and the Court should grant leave to tender or accept the video footage as evidence before the Court.  Counsel also says that he had, at an earlier directions hearing before Justice Makail, informed the Court that the petitioner would tender the video footage at the trial.  Counsel says that had he been given the opportunity, he would have proven that with the transcript of the said directions hearing.  Moving on, counsel also submits that the video footage and what was alleged to have been said in the video footage have been expressly pleaded so he submits that the respondents knew or ought to have known that the video footage would be tendered at the trial. 

COURT’S APPLICATION OF EVIDENCE

7.	This Court derives its powers from sections 206 and 207 of the OLNLGE.  I refer to cases: Thompson v. Pokasui [1988] PNGLR 210; John Warisan v. David Arore (2013) N5217 at para 131).  As an election petition Court, let me look at the relevant provisions under the OLNLGE that covers or deals with evidence.  Two (2) notable provisions are sections 212 and 217.  I set them out here as follows:

212.	Powers of court.
(1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.
(2)	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3)	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4)	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
…..
217.	Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

(Underlining is mine)

8.	In summary, the strict rules of evidence do not apply here.  See cases:  Raymond Agonia v. Albert Karo [1992] PNGLR 463; Ginson Goheyu Saonu v. Bob Dadae (2004) SC763; Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5323.  I note that all counsel concurred with this proposition at the hearing so I will not dwell further with the law and case law which is settled.

9.	With these, I note that I am not bound by the Evidence Act nor the provisions of the National Court Rules.  I note that it may be discretionary for the Court to look outside the OLNLGE for assistance or guidance.  However, in my view, such a discretion shall not be exercised until or only after the Court has had the opportunity to consider and apply section 217 which is mandatory. 

10.	I turn to the arguments.  Based on the principle of observing real justice, I do not find the arguments complicated.  In my view, the best place to begin would be to look at the petition and its pleadings.  A substantial part of the pleadings relate to the alleged video footage which is the subject of the objection.  The petition expressly makes reference to the video.  It also pleads alleged segments or speeches that were alleged to have been made by the 1st respondent at rallies in the video footage.  I note that I have covered these in my earlier judgment in regard to the objection to competency hearing.  See the case of Simon Bintagor Sia v. Peter Numu and 1 Or (2018) N7106.  The petition herein was filed on 13 September 2017.  In my view, the respondents had ten (10) months or so to request discovery from the petitioner concerning or in relation to the video footage.  They have not done that.  With these, I do not think that the first respondent is being genuine with his objection.  I therefore find the argument regarding the lack of notice by the petitioner of his intention to produce the video footage at the trial, to be baseless.

11.	Let me also say this.  The video footage may be a relevant evidence that the Court may require.  I say this given what has already been pleaded and alleged.  How can this Court appreciate and follow the allegations and defence of the parties to the proceeding without having the benefit of viewing the video footage concerned?  I ask myself.  Counsel for the first respondent has also submitted these at paragraphs 15 and 16 of his submissions:

15.	A number of the Petitioner’s witnesses who have filed affidavits refer in the affidavits to watching video images.  They have repeated & set out in their affidavits statements allegedly said in the video images.
16.	Because the words and statements allegedly said in a video are quoted in their affidavits, these statements are not new.  The evidence that the Petitioner relies on is in the affidavits.  It is not as if the evidence in the video alleged isn’t in evidence that can be made available to the Court.

12.	To me, these submissions go to show or prove why the video footage should or must be tendered in as evidence.  It is disingenuous, in my view, to suggest on the one hand that it is fine for the petitioner to rely on segments or quotes from the video footage which will still be opposed but at the same time to also say that given that these segments of the video footage are already deposed to in affidavits, that there is no need to tender the video footage.  I simply cannot see how that will work out.  In my view, this Court, in order for it to deliver real justice to all the parties based on the issues that are before it, ought to have all the material and information that are relevant or related to the matter.

13.	So even if I may be wrong with my first finding, I would nevertheless dismiss the objection and allow the video footage to be admitted as evidence for the reason as stated.

14.	I have had regard to the submissions of the second respondent.  However, I dismissed them on the basis of my findings regarding the application of sections 212 and 217 of the OLNLGE.  That said, I will add two (2) things.  Firstly, that this Court is not bound by the provisions of the National Court Rules.  See cases:  Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342; Review Pursuant to the Constitution s.155(2)(b): Application by the Electoral Commission; Re Southern Highlands Elections Act 1979 [1991] PNGLR 372; Thompson v. Pokasui (supra).  Secondly, counsel had made references to Rule 22 of the Election Petition Rules in his submission.  It reads in part, The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless the rule is a requirement of the Organic Law.  In my view, I do not see how this rule assists the 2nd respondent.

IMPOSED CONDITION

15.	I also feel that it is just and reasonable, that I should make a further consequential order now.  I do so also in exercise of my powers under section 217 of the OLNLGE.  I concur with counsel for the first respondent that justice and the Court’s exercise of its powers under section 217 should apply to all the parties and not just to the petitioner.  

16.	Therefore and in light of my ruling above, I will allow the first respondent an opportunity, where required, to file additional evidence after the video footage has been tendered and viewed by the Court.  If he chooses to do so, his new evidence, whether given by himself or by another person, shall be limited to or in response only to the content of the video footage.  And the said evidence shall be filed immediately within 48 hours after the video footage has been viewed.  If further time will be required, I will leave that to counsel to bring to the Court’s attention.

SUMMARY

17.	In exercising my power under section 217 of the OLNLGE, I will grant leave and allow the tendering of the video footage by the petitioner through the said witness, namely Abraham Rolu.  In so doing, I reject the objection by the 1st respondent. 

18.	I will also make a consequential order that will permit the first respondent to file additional evidence if he chooses.

REMARK

19.	I note that more time had been spent by counsel in Court in addressing Part IV Division 5 of the Evidence Act in regard to tendering of electronic records.  However, because of the Court’s position in terms of applying section 217 of the OLNLGE, it is unable to deliberate further in terms of discussing the provisions therein. 

THE ORDERS OF THE COURT

20.	I make the following orders:

1.	The objection is refused.  The Court will now accept the video footage as an exhibit, and the trial shall continue.
2.	After the viewing of the video footage, the first respondent would be at liberty to file new evidence directly in response to the content of the video footage.
3.	If the first respondent intends to file his evidence, he shall do so immediately and within 48 hours after the video footage is viewed.
4.	Time is abridged.

The Court orders accordingly.
____________________________________________________________
Sirae & Co Lawyers:	Lawyer for the Petitioner
Kongri Lawyers:	Lawyers for the first Respondent
Kimbu & Associates Lawyers:	Lawyers for the Second Respondent