N7140
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

                                            EP NO. 14 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR
 ESA’ALA OPEN ELECTORATE

BETWEEN
GLENN TOBEWA
Petitioner

AND
DAVIS STEVEN
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

                                         Alotau:  Higgins, J
                                           2018 :  20th February

ELECTION PETITION – Objection to competency – Allegations of bribery – Allegation 1 pleaded as occurring prior to nomination of candidate – that allegation incompetent – remaining two allegations sufficiently pleaded.

Cases Cited: 

Agonia v Karo [1992] PNGLR 463, 469
Amet v Yama [2017] PGSC 46; SC 1064
Tomokita v Tomuriesa [2018] EP NO.28 of 2017

Counsel:

Ms C. Copland assisted by Mr L Jurth, for the Petitioner
Mr A. Baniyamai, for the First Respondent
Mr H. Nii, for the Second Respondent

                          OBJECTION TO COMPETENCY

20th February, 2018

1.	HIGGINS,  J:   An Objection to the Competency of this Petition has been raised upon notice given to the Petitioner by each Respondent. 

2.	The First Respondent raised the objection that, at the time of the events alleged to constitute the bribery, the First Respondent had yet to nominate for election.

3.	He nominated on 27 April 2017 at about 1:30 pm.  That is agreed.

4.	The grounds for objection relate to the insufficiency of the pleading in the Petition to state a case sufficient to warrant a declaration that the election of the First Respondent is null and void. 
 
5.	Such a conclusion, particularly when illegal practices are alleged, will not lightly be accepted.

6.	However, to reject an objection to competency does not in any way accept the truth of the allegations in the Petition.

7.	It does no more than to accept that the allegations raised, if proved to the requisite degree of certainty are sufficient to declare the election void.

8.	Section 215 of the Organic Law on National and Local Level Elections provides:

	“(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 the 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”.

9.	The reference to illegal practices, bribery, undue influence or attempts thereat, is a reference to ss. 102 – 105 of the Criminal Code 1975.

10.	As Sheehan, J noted in Agonia v Karo [1992] PNGLR 463, 469, s.103 in particular is designed to prohibit improper inducements and corrupt practices intended to interfere with the lawful process of an election.

11.	It follows that a petition relying on bribery must allege material facts sufficient if proved to constitute such an offence.

12.	The first count alleges that cheques for K20,000.00 and K14,000.00 respectively were offered on behalf of the candidate for houses for the Pastor and Minister of Toginitu United Church.  The cheques represented grants from Esa’Ala District Development Authority.  This was on 23 April 2017.

13.	“About one week later”, Isikeli Moten allegedly met with Lala Michael to deposit the cheques.

14.	“About one week later”, could not refer to 30 April, which was a Sunday, or, indeed 29 April, a Saturday.  It therefore could have been 28 April at the latest, but it could have been 27 April.  The allegation is, therefore, unclear as to whether the inducement, if it includes that attempted deposit, was before or after Davis Steven became a candidate.  The alleged statement to the congregation on 23 April was sufficient, if proved, to constitute the offence of bribery.  However, that clearly was prior to the nomination of Davis Steven.  Thus it is not charged that at the time of the corrupt inducement alleged, Mr Steven was a candidate.

15.	Thus while the mens rea of intent is alleged, the allegation is deficient in terms of timing. This ground is not competent.

16.	Count 2 is challenged on the basis that the inducement uttered by Monty Sinewan, albeit allegedly with the knowledge or authority of the candidate, does not provide any basic fact or facts from which that inference could be drawn.

17.	I respectfully disagree.  Mr Sinewan was the Chair of Mr Steven’s election committee.  The offer was of K20,000.00 to maintain the church building at Savataetae Village and relevant electors were allegedly present.

18.	Whether it be proved that the candidate authorised or knew of the proposed inducement is a matter for trial, it is, however, alleged as a material fact.

19.	This ground is competent.

20.	The third ground is a later repetition by Monty Sinewan on 30 April 2017 of the same inducement including the display of a cheque.

21.	For the same reasons as for Count 2, I find this ground to be competent.

22.	The candidate was not present at either of these latter occasions.

23.	As Amet v Yama [2017] PGSC 46; SC 1064 acknowledges mere presence does not, in itself, establish complicity.  Nevertheless, that is an issue for trial.

24.	The facts alleged do not identify every elector illegally induced to vote for the candidate but it does name at least one person.  That distinguishes the case from Tomokita v Tomuriesa [2018] EP NO.28 of 2017 (10/1/18).

25.	Ground One is struck out, the Second and Third Grounds will go to trial.
_______________________________________________________________
Simpson Lawyers	     :	Lawyers for the Petitioner
Baniyamai Lawyers   :	Lawyers for the First Respondent
Harvey Nii Lawyers   :	Lawyers for the Second Respondent