N7139

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, 21st & 22nd February

ELECTION PETITION – Two allegations of bribery – Candidate’s election committee Chair making offending statements to voters – Candidate not present - No evidence to prove that candidate had prior knowledge thereof or gave prior approval thereto.

EVIDENCE – Affidavits attested to in English – Deponents not fluent in English – No Translator’s Certificate – Affidavits defective.

Cases Cited
Papua New Guinea Cases 

Amet v Yama [2010] PGSC 46; SC 1064
Ebu v Evara [1983] PNGLR 201
Kikala v The Electoral Commission [2013] PGSC 48; SC 1295
Louma v Tomuriesa (2012) PGNC 236; N4920
Maladina v The State [2016] PGSC 11; SC 1495
Singirok v Fairweather [2014] PGNC 53; N5577
State v Pagapaga (2015) PGNC 54; N5979

Overseas Cases

The Queen v Prasad 235 ASR 161; (1979)

Counsel:

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

NO CASE SUBMISSION

22nd February, 2018

1.	HIGGINS, J: Following my ruling on 19 February 2018, the Petitioner called evidence to support the two remaining allegations of bribery.

2.	Ms Copland, for the Petitioner, tendered a compact disc containing relevant forms 66A and 60B.  That is said to confirm that Mr Tobewa was a candidate in the election and so entitled to file an Election Petition. 
 
3.	It is, perhaps, surprising that the Petitioner did not file any Affidavit or give evidence to establish his standing and bona fides.  It had the effect of not exposing him to cross-examination concerning inter alia, the funding of these proceedings.

4.	That question gained additional relevance when it appeared that Australian Counsel, Mr Jurth (pronounced “EWART”) appeared with Ms Copland to argue the Objection to Competency.  This is, obviously, no criticism of Counsel for the Petitioner.  Their contribution has been both professional and helpful to the Court, however, it did raise the question of the funding of the proceedings given that Mr Tobewa was apparently of limited means.

5.	The allegations advanced by the Petition were as follow:

Bribery Case 2 – [Facts as alleged in the Petition]

15. Monty Sinawen, at all relevant times, was a Ward member in Sawataetae Ward, Duau Local-Level Government area, and well-known in the area as Chairman on the First Respondent’s Election Committee.

16. On Thursday 27 April 2017, there was soccer and netball tournament at Sawataetae Village in the said Sawataetae Ward, within the Esa’ala Open Electorate.  When the tournament ended, at about 3 pm, there was prize-giving ceremony at the village oval, at which Monty Sinawen gave a speech.

17. At the time and place referred to, in the course of his speech, Monty Sinawen said, in the Eyagu language, a language understood by the persons then present and within their hearing, the following as translated into English:  “You all have to vote for Davis Steven if you want to receive K20,000.00 for the maintenance of our Church Building.  There is a cheque waiting for us worth K20,000.00 from Davis Steven.  I will go tomorrow to pick it up.  If you all do not vote for Davis Steven, I will use that K20,000.00 on my committee and only the supporters of Davis Steven.” 

18. The persons present and who heard the said speech, included Polana Lepani, Village Recorder, of Sawataetae Ward, a member of the church to which Monty Sinawen referred, and an elector enrolled to vote in the Esa’ala Open Electorate.  On such occasion, there were also present other members of the said church including other enrolled electors in the Esa’ala Open Electorate.

19. In saying the said words on 27 April 2017, Monty Sinawen promised or offered to give or confer, or to procure or attempt to procure, to, or for, the members of the said church, property or a benefit, with the intention and in order to induce Polana Lepani and such other persons present to endeavour to procure the return of the first respondent at the general election, or the vote of such electors at the election.

20. The said words spoken by Monty Sinawen on 27 April 2017 constituted bribery within the meaning of s.103(a)(iii) of the Criminal Code (Schedule 1, Criminal Code Act Chapter 262). 

21. The said conduct constituting bribery was committed by Monty Sinawen with the knowledge or authority of the First Respondent.

Bribery Case 3 – [Facts as alleged in the Petition]

22. On Sunday 30 April 2017, after church service, at the Sawataetae Village, between 11:00 am and 12:00 midday, Monty Sinawen, outside the church, said within the hearing of members of the congregation, and in the Eyagu language that they understood, the following words as translated to English: “This is the K20,000.00 cheque I told you all about during my speech at the soccer tournament.  I will take it to Alotau to deposit on Monday.  You all now have to vote for Davis Steven if you want this church building to be maintained.”   At the same time as saying those words, Monty Sinawen held up a cheque in one hand.

23. The persons present, and who heard the words spoken by Monty Sinawen, on 30 April 2017, included Polana Lepani, Village Recorder, of Sawataetae Ward, a member of the said church, and an elector enrolled to vote in the Esa’ala Open Electorate, together with other members of the church who were enrolled electors in the Esa’ala Open Electorate.

24. By his words and conduct on 30th April 2017, Monty Sinawen promised or offered to give or confer, or to procure to, or for, the members of the said church, property or a benefit, with the intention and in order to induce Polana Lepani and such other persons present to endeavour to procure the return of the First Respondent at the general election, or the vote of such electors at the election.

25. The said words and conduct of Monty Sinawen on 30 April 2017 constituted bribery within the meaning of s.103(a)(iii) of the Criminal Code (Schedule 1, Criminal Code Act, Chapter 262).

26. The said bribery on 30 April 2017 was committed by Monty Sinawen with the knowledge or authority of the First Respondent.

6.	It is apparent that, even apart from the truth or otherwise of the allegations concerning the statements made by Mr Monty Sinewan, the question arises as to whether there is evidence sufficient to enable a finding to be made that the statements attributed to Mr Sinewan were made with the  prior knowledge or authority of the First Respondent, Mr Steven.

7.	Mr Polana Lepani was the first witness called.  He had sworn an affidavit in the English language admitted without objection as Exhibit “B”.  Curiously, and contrary to the National Court Rules, it contained no translation certificate.  His evidence was given in the local language, Eryagu (pronounced DOBU).

8.	The Affidavit had been attested in Port Moresby.  Mr Baniyamai enquired how he could afford this.  The witness told the Court that he was given assistance by the Petitioner and another candidate, Mr Jimmy Maladina who paid for his airfares.

9.	He stated that it was Mr Tobewa, the Petitioner who explained the contents of his affidavit to him.  Mr Tobewa only spoke Eryagu to the lawyer, of Simpson Lawyers, but Mr Tobewa spoke to the lawyer to enable the affidavit to be drawn up.

10.	It was, or should have been apparent to the lawyer that Mr Lepani was not fluent in English and that an unbiased interpreter was necessary to ensure that his affidavit represented his evidence rather than what the Petitioner might have wished him to say.

11.	As it happens, Mr Lepani did seem to me to confirm the matters alleged in his affidavit but the irregularity I have noted is a serious one.

12.	Mr Lepani rejected a suggestion that, on 27 April 2017, Mr Sinewan was at Esa’Ala attending to Mr Steven’s nomination and, hence, not at the church.  He did, however, confirm that Mr Steven was not present at the Soccer Tournament on 23 April 2017.

13.	Nor was he present at or after the church service on 30 April 2017, where Mr Sinewan displayed what was said to be a cheque for the grant of the money to maintain or erect the church building.

14.	If there was such a cheque, it could only have been from the District Development Authority and it would have been the assumption that Mr Steven, as Chair of the Authority, had approved its issue.  However, that is not the essence of the bribery allegation.  It hinges upon the statement attributed to Mr Sinewan that the listeners, including Mr Lepani, should therefore vote for Mr Steven and that, if they did not, the money would be withdrawn.

15.	There was no dispute between the parties as to the relevant law.

16.	Mr Steven became a candidate only when he nominated at 1:30 pm on 27 April 2017 (Ebu v Evara [1983] PNGLR 201).

17.	The two acts of bribery allegedly perpetrated by Mr Sinewan occurred after that time. 

18.	It being an allegation of criminal conduct, the material facts must be proved beyond a reasonable doubt. That includes the fact that the statements made by Mr Sinewan not only were uttered with the intention of influencing voters but were uttered with the prior knowledge or authority of Mr Steven.  In that context, the authority has to be specific.  That is, that he was authorised by Mr Steven to convey to voters hearing it the offer and threat allegedly conveyed by Mr Sinewan with the intent that they should vote for Mr Steven.  (Singirok v Fairweather [2014] PGNC 53; N5577).

19.	The evidence adduced to support an inference of guilt against Mr Steven must be capable of supporting that inference beyond reasonable doubt.

20.	It is trite law that the party asserting the commission of a crime must adduce evidence which, at this stage, is capable of satisfying the Court of the relevant material fact, that is, of prior knowledge or authority. 

21.	The only material fact alleged to link Mr Steven to the making of the statements attributed to Mr Sinewan is that the latter was the Chair of Mr Steven’s campaign Committee.

22.	As Kikala v The Electoral Commission [2013] PGSC 48; SC 1295 affirms, as with any allegation of crime, the guilt of an accused may be proved beyond reasonable doubt by circumstantial evidence even if direct evidence of guilt as lacking.  Nevertheless, the tribunal of fact must be able to find that all reasonable hypotheses consistent with innocence have been excluded.

23.	In Maladina v The State [2016] PGSC 11; SC 1495, that important principle was affirmed.

24.	The question, therefore, is whether there is a reasonable hypothesis consistent with Mr Steven’s innocence.  The answer is that of course there is.  The fact that Mr Sinewan was a campaigner for Mr Steven leaves open the inference  that whether instructed or authorised by the candidate to do so or not, he seized the opportunity presented by the grant of money to the church, to advocate support for his candidate.

25.	If the inference of prior knowledge or authority is open, equally the contrary inference is open. To cite  Gavara-Nanu, J in Maladina v The State (supra) at [21]:

“An inference of guilt drawn against an accused should be the only rational inference the Court is able to draw from all the circumstances in evidence.  An inference should not be based on mere conjecture, surmise, guesswork or assumptions”.

26.	Further support for Mr Steven’s case can be found in the case of Amet v Yama [2010] PGSC 46; SC 1064.

27.	The statements alleged in that case to constitute undue influence were uttered by supporters of Sir Arnold in his presence.

28.	At [72]-[73] Salika, DCJ & Batari, J stated:

“[72] The terms ‘Knowledge’ and ‘Authority’ must necessarily de-note a pre-existing state of knowing or authorizing an illegal practice or acts of 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 (sic: “of”) undue influence on his behalf.”

“[73] Both situations may invoke some element of planning or fraud manifesting itself in the presence of the (sic) all the principal offenders.  The Petitioner must not only assert presence, but he must also adduce evidence to show that the presence of the principals was willed to aid and abet or encourage the illegal practice and undue influence.  Because of the criminal elements of the charges of illegal practice and undue influence, it is not enough that the presence of the applicant has in fact given encouragement. The Petitioner must show that the applicant intended to give encouragement, that the applicant wilfully encouraged the statements of (sic) by his supporters.”

29.	It is an even weaker case where the candidate was not even present when the offending statements were made.

30.	It follows that the evidence adduced on behalf of this Petitioner is insufficient to enable an adverse finding against Mr Steven.  On that ground alone, the Petition fails in respect of each count of bribery.

31.	However, even if the evidence did enable such a finding, a question arises as to whether, even at this stage, the Court should exercise its discretion to stop the trial and dismiss the allegations on the ground that to accept the case as proved on that evidence would be unsafe and unsatisfactory.  Louma v Tomuriesa (2012) PGNC 236; N4920; The Queen v Prasad 235 ASR 161; (1979) A Crim R: State v Pagapaga (2015) PGNC 54; N5979.

32.	Only 2 witnesses were called.  Each was directly challenged in cross-examination.  Each gave evidence that he heard Mr Sinewan utter the words complained of in the Petition.

33.	Mr Lepani, the first witness, affirmed that he was, at those times, an elector.  However, he got into difficulties with his evidence right from the outset.  It was pointed out to him that the birth date he had recorded on the Common Roll was inconsistent with his stated age in his affidavit of 28 years in 2017. He asserted that this was an error by the Electoral Officials.

34.	Also, he explained that he went to Port Moresby with financial assistance from Mr Jimmy Maladina as well as other assistance from the Petitioner.

35.	Further, it was conceded by the witness that his command of English was not good.  He said his affidavit was explained to him by the Petitioner before he signed it before the latter’s lawyer.

36.	There was no translator’s certificate.  This leads me to conclude that either the witness was pretending to have inadequate English or he was not able to understand the affidavit  but  was prepared to sign any document put to him by his candidate, Mr Toweba, whether it was true or not.  He was financially supported by Mr Maladina and understood the Petitioner to be Mr Maladina’s candidate.  Mr Maladina was another candidate in the election.

37.	The Tournament on 23 April 2017, he said, was organised and paid for by Mr Maladina.  It was also note-worthy that his oral evidence as to what was said on 30 April 2017 involved a clear breach of the protocol of the Church about political campaigning on Church grounds.  The Pastor of the Church was Mr Sinewan’s brother.

38.	The manner in which he gave his evidence satisfied me that it would have been unsafe to rely upon his evidence unless independently corroborated.

39.	Joe Bentily Bwan was the other witness.  His affidavit was similarly defective and was formally rejected when that objection was taken.  He gave oral evidence, however, that the threat made on 30 April 2017 included an assertion that the money would in effect, be given to Davis Steven and his supporters if those present did not vote for Mr Steven.

40.	He, in cross-examination, agreed that Mr Maladina had funded Mr Toweba’s campaign which included the Tournament of 23 April 2017.  Mr Maladina had also funded his trip to Port Moresby to make his affidavit.

41.	Again, this witness’ demeanour was such that I would not act on his testimony unless it was independently corroborated.

42.	The evidence of the background role of Mr Maladina if it is true leads me to believe that the proceedings are really pursued by him through the agency of Mr Tobewa.

43.	The Petition is dismissed, I will hear the parties further as to costs.
___________________________________________________________
Simpson Lawyers	:  Lawyers for the Petitioner
Baniyamai Lawyers : Lawyers for the First Respondent
Harvey Nii Lawyers :  Lawyers for the Second Respondent