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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 77 OF 2017
IN THE MATTER OF A DISPUTED RETURN 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
Waigani: Anis J
2018: 6, 7 & 8 August, 22, 24, 25 & 26 October, 2 & 28 November
2019: 22 March
ELECTION PETITION – Section 206 – Organic Law on National and Local-level Government Elections – undue influence – section 215(1) of the Organic Law on National and Local-level Government Elections and section 102 of the Criminal Code Act Chapter No. 262 – attempted to commit undue influence – section 215(1) of the Organic Law on National and Local-level Government Elections and section 102 of the Criminal Code Act Chapter No. 262 – standard of proof – whether the petitioner has discharged the required standard and burden of proof - the elements of undue influence and attempted undue influence discussed
Facts
The petitioner was a candidate in the 2017 National Election, that is, he contested the seat for Governor of the Eastern Highlands Provincial Electorate. He filed an election petition after the 1st respondent was declared as the elected Governor for Eastern Highlands Province in 2017. He challenged the validity of the election on the basis of undue influence and attempted undue influence.
Held
Cases Cited:
Simon Sia Bintagor v. Peter Numu and 1 Or (2018) N7399
John Warison v. David Arore (2015) SC 1418
Bryan Kramer v. Nixon Philip Duban and Andrew Traven (No, 3) N5215
Bryan Kramer v. Nixon Phillip Duban and Ors (2013) N5688
Mathias Ijape v. Electoral Commission of Papua New Guinea (2002) N2437
Simon Sia Bintagor v. Peter Numu and 1 Or, (2018) N7106
Terry Kajona Okeva v. Robert Atiyafa (2013) N4993
Ludger Mond v. Jeffery Nape (2003) N2318
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Counsel:
Mr Tom Sirae, for the Petitioner
Mr Andrew Kongri, for the First Respondent
Mr Wellington Kaum, for the Second Respondent
JUDGMENT
22 March, 2019
1. ANIS J: This is an election petition proceeding. It was heard on 22, 24, 25 and 26 October 2018, and on 2 and 28 November 2018. I reserved my decision to a date to be advised.
2. This is my ruling.
BACKGROUND
3. The petitioner was a candidate for the Eastern Highlands Provincial Electorate in the 2017 National Election. The 1st respondent was later declared as the winner and now occupies the position, Governor of Eastern Highlands Province. The petitioner was aggrieved, and he filed this petition pursuant to section 206 of the Organic Law on National and Local-level Government Elections (OLNLLGE). The section reads, and I quote in part, The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.
PETITION
4. I refer to the petition. It was filed on 13 September 2017. The petitioner puts down two (2) grounds as the basis why he wants this Court to declare the election of the 1st respondent null and void. I will summarise them as follows. Firstly, the petitioner alleges undue influence, that is, pursuant to section 215(1) of the ONLLGE and also pursuant to section 102 of the Criminal Code Act Chapter No. 262 (the Criminal Code). Secondly, he also alleges under these same statutes and sections, attempt to commit undue influence.
ISSUES
5. The issues, in my view, are as follows:
(i) Whether the video footage should be admitted into evidence (preliminary);
(ii) Whether the video footage tendered by witness Abraham Rolu should not have been viewed by the other witnesses, namely, Jerry Kokore, Joseph Aganime, John Miamel, Wato Aviniga, Donald Tom Kalimin and Kenneth Manman (preliminary);
(iii) Whether the petitioner’s witnesses were duly registered voters whose evidence should be accepted by this Court (preliminary);
(iv) whether the 1st respondent committed undue or attempted undue influence in the 2017 National Election.
(v) Subject to the above, whether the National Election for the Eastern Highlands Provincial Electorate should be declared null and void.
OBJECTIONS - TENDERING EXHIBIT P4 - VIDEO FOOTAGE
6. The respondents maintain their objections against tendering of the video footage by the first witness of the petitioner. The witness was Abraham Rolu. Witness Rolu tendered the video footage in Court whilst he was orally examined. The respondents objected. I overruled the objections and accepted the video footage into evidence. These occurred at the earlier part of the hearing, that is, on 6, 7 and 8 August 2018. My ruling has been published and I would refer to it, that is, Simon Sia Bintagor v. Peter Numu and 1 Or (2018) N7399. I note that the respondents have repeated their grounds of objections in their final submissions. In my view, I have nothing further to add except to point to my decision which contains my reasons.
7. The respondents also maintain their objections against the petitioner’s other witnesses from viewing the video footage at the trial. I note that I have also over ruled these objections and have allowed the witnesses to view the video footage as part of their oral testimonies. In my rulings, I referred to my reasons in Simon Sia Bintagor v. Peter Numu and 1 Or (supra) as the basis for refusing the objections. I would refer to the transcript of the proceeding for my reasonings. And let me also say this. I find the respondents’ argument on this point (ie., to oppose the petitioner’s other witnesses from viewing the video tendered by witness Rolu) futile. Let me explain. The 1st respondent also tendered a similar video footage through his witness Spencer Wangere. The copy of the video footage tendered by Mr Wangere and the copy of the video footage tendered by Mr Rolu, are almost identical except for a few minor changes which I find is not uncommon, that is, when dealing with copies of video recordings. Witness Wangere claims that he was the one that produced the video footage in 2013. Both videos are tendered and are marked as Exhibits P4 and R1A respectively. Had the 1st respondent denied the existence of the video footage or knowledge of it and had maintained that position till he closes his case, I may perhaps follow his said argument. However, he has not in this case. It is therefore futile, in my view, for the 1st respondent to object to a person who is trying to view a video, and later, for the 1st respondent to produce the same video in evidence and claim that it was produced by one of his witnesses.
8. I note that the respondents have referred to the technical provisions under sections 67 and 67A of the Evidence Act Chapter No. 48. I declined them for the same reasons I had used earlier to decline the objections raised against the tendering of Mr Rolu’s video footage in Simon Sia Bintagor v. Peter Numu and 1 Or (supra). The obvious reason, if I may summarise, is based on this Court’s power which is expressly provided for under section 217 of the OLNLLGE. It reads, and I quote in part, 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.
OBJECTIONS - COMMON ROLL NAMES OF WITNESSES
9. At the trial, the respondents challenged the registration status of some of the petitioner’s witnesses. These witnesses were (i), Jerry Kokore, (ii), Moses Kahamo and (iii), John Miamel. Let me deal with that now.
10. In relation to witness Jerry Kokore, the 2nd respondent challenged the correctness of the witness’s birth date and occupation. In relation to witness Moses Kahamo, the 2nd respondent challenged him as an unregistered voter. And in relation to witness John Miamel, he was challenged in regard to his name and age.
11. In answer to these, I will firstly consider the relevant law. In my view, it is section 135 of the OLNLLGE. It reads, and I quote in part, No error or omission in the Roll for an electorate of part of a name or entry of a wrong name, address or occupation and no mistake in the spelling of a name warrants the rejection of a claim to vote, and no person shall be disqualified from voting under the name appearing on the Roll because of a change of name. The organic law is express. So if an elector is giving evidence and deposes that he has voted for example in the 2017 National Election, and his name appears in the Common Roll but there are discrepancies concerning his personal information, so long as he states that he is that person and has voted, the Court shall presume that he had been allowed to vote under section 135 and thus regard him as an elector for the purpose of the proceeding. See case: John Warison v. David Arore (2015) SC 1418.
12. In this case, witness Jerry Kokore, gave both oral and written evidence. His tendered affidavit is marked Exhibit P7. I note the discrepancies concerning his birth year and occupation. Witness Jerry’s evidence was tested in Court. The 2nd respondent tried to establish that the name in the Common Roll where witness Jerry claimed was his, was actually someone else’s name. I find the challenge misconceived. I say this because the OLNLLGE allows for persons which such discrepancies to still vote, and I refer to the section 135. In this case, Jerry Kokore deposes that he was an elector in the 2017 National Election. He also states that he voted in the 2017 National Election. Details of his name in the Common Roll was led by his counsel in examination in chief. The petitioner had the burden of proof in this regard, and in my view, the said burden has been established. See case: Bryan Kramer v. Nixon Philip Duban and Andrew Traven (No, 3) N5215. The burden then shifts to the 2nd respondent. I am not satisfied that the 2nd respondent has discharged that burden. I therefore find that Jerry Kokore was a voter who had voted in the 2017 National Election. I find that his evidence is properly before the Court for consideration. Witness Moses Kahamo only gave oral evidence in Court. The 2nd respondent questioned him whether he was a registered voter in the 2017 National Election. The 2rd respondent put to the witness that he was not a registered voter. In reply, witness Moses said that he was a registered voter and he referred counsel to Gahuku Rural Ward 4 in the Common Roll. He gave descriptions of where his name may be located in the Common Roll. I am satisfied that this witness was a registered voter at the material time. I therefore will allow this witness’s testimony to be considered by the Court. The third witness whose name and age were challenged by the 2nd respondent was John Miamel. He gave both oral and written evidence. His tendered affidavit is marked Exhibit P13. Again, the petitioner’s counsel led evidence which showed that he was an elector who was on the Common Roll. The witness gave evidence that he voted in the 2017 National Election. I also refer to section 135 of the OLNLLGE, and I must say that I am satisfied that this witness was an elector or who had voted in the 2017 National Election. I will permit this evidence to be considered by the Court in relation to the allegations raised by the petitioner.
ELEMENTS - UNDUE INFLUENCE
13. I refer to the two (2) grounds namely, undue influence and attempted undue influence. The specific provisions that were pleaded together with as particulars in the petition under Part C, were section 215 of the OLNLLGE and section 102 of the Criminal Code. Section 102, in my view, cannot be the source for the allegations of undue influence and attempted undue influence, but rather, it should be section 215(1) of the OLNLLGE. That said, references can be made to section 102 of the Criminal Code for assistance either by the Court or by the parties. I think this is where a lot of confusions arise where Courts try to treat or regard themselves as criminal Courts with criminal jurisdictions. A National Court that is convened under Part XVIII of the OLNLLGE is a special civil Court with civil jurisdiction. See cases: Bryan Kramer v. Nixon Phillip Duban and Ors (2013) N5688, John Warisan v. David Arore (supra), Mathias Ijape v. Electoral Commission of Papua New Guinea (2002) N2437, and in Simon Sia Bintagor v. Peter Numu and 1 Or, (2018) N7106.
14. I will also take refuge from section 205 of the OLNLLGE. It reads, and I quote in part, Nothing in this Law shall derogate or be deemed to derogate the provisions of the Criminal Code, but a person is not liable to be prosecuted or punished both under this Law and under the Criminal Code for the same offence. The provision, in my view, expressly distinguishes offences that are specified under the OLNLLGE which a petitioner may prosecute by way of a petition under a National Court that is constituted under Part XVIII of the OLNLLG, from those offences that are prescribed under the Criminal Code which can be prosecuted by a National Court that is sitting as a Criminal Court. The provision also simply states or implies that if a person is prosecuted for an election related offence under the Criminal Code by a Criminal Court, the provisions of the Criminal Code shall apply irrespective of the provisions for such similar offences that are specified under the OLNLLGE. But section 205 makes a qualification, that is, it states that a person shall only be charged and trialled once for an offence that may be prosecuted under either the OLNLLGE or the Criminal Code. The qualification obviously emphasises section 37(8) of the Constitution, or the defence of ‘double jeopardy’ as it is commonly known under the Fifth Amendment of the Constitution of the United States.
15. In the present case, I note that the petitioner has pleaded section 215(1) at the end of the Case 4 at page 7 of the petition. It reads, and I quote, By virtue of section 215(1) of the OLNLGE, each and every one of the cases of the illegal acts of undue influence and attempted undue influence, as pleaded above, should void the election of the First Respondent. I note that the pleadings of instances of alleged illegal acts are labelled only against the 1st respondent. They are not labelled against third parties.
16. Let me firstly refer to my other earlier published ruling on objection to competency, that is, Simon Sia Bintagor v. Peter Numu and 1 Or, (2018) N7106. There, I set out various wider definitions for the offence of undue influence. As a start, I adopt and quote them in part as follows:
27. The United Kingdom Electoral Commission in its July 2012 Factsheet Summary of electoral offences defined "undue influence" as follows:
A person is guilty of undue influence if they directly or indirectly make use of or threaten to make use of force, violence or restraint, or inflict or threaten to inflict injury, damage or harm in order to induce or compel that person to vote or refrain from voting.
A person may also be guilty of undue influence if they impede or prevent any voter from freely exercising their right to vote - even where the attempt is unsuccessful.
Undue influence doesn't exclusively relate to physical access to the polling station. For example, a leaflet that threatens to make use of force in order to induce a voter to vote in a particular way could also be undue influence.
28. The Black's Law Dictionary Ninth Edition By Brian A Garner (2009) define "undue influence" to mean and I quote:
The improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.
29. It also defines the word "undue" to mean excessive or unwarranted.
30. I also refer to the word "induce" or "inducement". The New International Webster's Comprehensive Dictionary of the English Language, 2004 Edition, defines the word induce as follows: "To lead on to a specific action, belief, etc., by persuasion or influence; prevail on." The Black's Law Dictionary Ninth Edition, By Brian A Garner (2009) defines the word induce under inducement to mean, "The act or process of enticing or persuading another person to take a certain course of action".
31. Words and Phrases Legally Defined, Supplement 1983, Second Edition by John B. Saunders, defines the word inducement and I quote at page 150:
Australia - Inducement (in s.410 of the Crimes Act 1900 (N.S.W.) is used in its ordinary sense of persuasion aimed at producing some willing action, as opposed to compulsion by force or fear of force to produce some unwilling action. It is not necessary that the prisoner should have been pressed to confess guilt and it has been held that it is sufficient to exclude the statement if he were pressed to say anything whatever: R v. Thompson, [1893] UKLawRpKQB 74; [1893] 2 Q.B. 12, R v. Bodsworth, [1968] 2 N.S.W.R. 132, per cur., at p. 138.
17. Guidance may be sought from section 102 of the Criminal Code. It defines the offence, undue influence to mean, and I quote in part:
102. Undue influence.
A person who—
(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—
(i) in order to induce him to vote or refrain from voting at an election; or
(ii) on account of his having voted or refrained from voting at an election; or
(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,
is guilty of a misdemeanour.
18. In regard to the case law, I refer to the case of Terry Kajona Okeva v. Robert Atiafa (2013) N4993. Justice Kariko held and I quote in part, (4) The offence of undue influence involves an element of force, threat or fraud to influence an elector from exercising his free will in relation to voting at elections. Justice Kandakasi in the case Ludge Mond v. Jeffery Nape (2003) N2318, defines undue influence and I quote in part, It is obvious to me that in order for there to be a case of undue influence, there must be some force, threat or fraud involved for the purposes of securing votes, an election victory by a candidate or otherwise interfere with the proper conduct of elections.
19. To me, the best place to begin to see the elements of undue influence, is not the rush to section 102 of the Criminal Code, as shown in the case law, but rather, to interpret section 215(1) and if I may add, subsection 2, of the OLNLLGE. Section 215 subsections 1 and 2 reads:
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) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
20. Section 215 is titled “Voidable election for illegal practices”. Subsection 2 entitles the Electoral Commission to prosecute a candidate for an illegal practice [under section 178(1) & (4)], that is, regardless of the National Court’s power under subsection 1 to determine whether a candidate has or may have committed undue influence or attempted undue influence based on instance(s) of illegal practice(s). The instances of illegal practices where the Electoral Commission may prosecute are expressly set out under section 178(1) of the OLNLLGE. I will set out the whole section which states:
(1) Subject to Subsection (2), the following are illegal practices at elections:—
(a) publishing an electoral advertisement, handbill or pamphlet or issuing an electoral notice (other than the announcement by advertisement in a newspaper of the holding of a meeting) without the name and address of the person authorizing the publication or issue being printed at the foot of it; and
(b) printing or publishing a printed electoral advertisement, handbill or pamphlet (other than an advertisement in a newspaper) without the name and place of business of the printer being printed at the foot of it; and
(c) printing, publishing or distributing an electoral advertisement, notice, handbill, pamphlet or card containing a representation of a ballot-paper or a representation apparently intended to represent a ballot-paper, and having on it any directions intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his vote; and
(d) printing, publishing or distributing an electoral advertisement, notice, handbill, pamphlet or card containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his vote; and
(e) wilfully informing an elector during the polling period that he is not enrolled or entitled to be enrolled for a particular electorate, or is not entitled to vote, when as a fact he is enrolled or entitled to be enrolled, or is enrolled or entitled to be enrolled for that electorate, or is entitled to vote, as the case may be.
(f) obstructs, damages or interferes with a public street or road with the intention to interfere with the conduct of an election; and
(g) assaulting or threatening to assault a Returning Officer, Assistant Returning Officer, Presiding Officer, other polling officer or police officer assisting in an election; and
(h) inciting or encouraging, whether publicly or otherwise, disturbances to interfere in an election.
(2) Nothing in Subsection (1)(c) or (d) prevents the printing, publishing or distributing of a card not otherwise illegal, which contains instructions on how to vote for a particular candidate, so long as those instructions are not intended or likely to mislead an elector in or in relation to the casting of his vote.
(3) A person guilty of an illegal practice is liable to a penalty of a fine not exceeding K1,000.00 or imprisonment for a term not exceeding six months.
(4) The Electoral Commission may prosecute an offence referred to in:—
(a) Sections 178, 191 and 195; and
(b) subject to the approval of the Public Prosecutor, Sections 99, 100, 102, 103, 108 and 110 of the Criminal Code Act (Chapter 262).
(Underlining are mine)
21. The five (5) instances of illegal practices underlined above may support the ground undue influence or attempted undue influence. They, in my view, could also be pleaded by a petitioner whose petition is based on section 215(1) of the OLNLLGE. I say this because section 215(1) merely refers to “undue influence” without expressly making references to section 178(1). Section 215(1) therefore appears to give broader options, that is, on the types of illegal practices or instances where a petitioner may choose from to plead in his or her petition, to allege undue influence or attempted undue influence. This has no doubt been practiced or has been demonstrated by the past case law in this jurisdiction.
22. With all these, I would summarise the elements or considerations of undue influence or attempted undue influence under section 215(1) as follows:
- the candidate must be identified;
- the elector(s) must be identified if the allegation of undue influence relates to or concerns him or her;
- and the nature of the allegation(s) the elector(s) alleges was committed to him or her must be established and proven;
- if the allegation(s) made is in regard to events where the candidate is alleged to have been involved in, then the event or incident must be identified and proven;
- the petitioner may have to prove that the candidate was in a position of authority, control or power over the elector(s) or over the incident(s) alleged at the material time;
- the petitioner may have to prove that the elector(s) was at a vulnerable state at the material time or that the incident(s) alleged was susceptible to the control of the candidate at the material time;
- the petitioner may have to prove that the elector(s) was affected to exercise his or her free will to vote as a direct or indirect action(s) of the candidate;
- the petitioner may have to prove that the incident(s) which had occurred which was alleged to have been caused by the candidate had prevented or had affected the elector(s) or a certain population or group of people, from casting their votes on the scheduled polling date(s);
- instances of illegal practices or incidents alleged against a candidate include publications by the candidate or his agents of such (i.e., illegal practice) through printed articles or information by printed press or news, or by electronic devices including CDs, videos, podcasts or publications in the social media;
- the incident(s) or allegation(s) alleged should only be those that were alleged to have occurred during the election or polling period.
THE VIDEO FOOTAGE
23. Let me now address this evidence, namely, the video CD or footage. The first question I have is this. Who produced it? Secondly, when was it produced? And thirdly, whether the 1st respondent, who was a candidate at the material time, distributed the video footage on the dates and locations alleged. I will address the third question separately later in my judgment.
24. I have had the benefit of considering both versions of the video footages, that is, the one that was tendered by the petitioner through his witness Abraham Rolu, and the other which was tendered by the 1st respondent through his witness Spencer Wangere. I have accepted the video footages as evidence, so they are properly before this Court for consideration. The parties, in my view, have thoroughly examined and cross-examined the two (2) witnesses as well as the 1st respondent, that is, in relation to the video footages.
25. My consideration is as follows. For the petitioner, I note and find that all his witnesses do not know who actually produced the video footage which they claimed to have viewed. As for the 1st respondent, he called this witness, Spencer Wangere to address the issue. Witness Wangere states that it was he that produced the video footage in 2013. He said in 2013, he was engaged by the University of Papua New Guinea’s Student Representative Council (SRC) to produce the video footage. He said the purpose for that was to equip the students for their awareness programmes which they had planned for Christmas that year. Witness Wangere denied that he was engaged by the 1st respondent personally to produce the video footage for his personal use or for campaign purposes. The 1st respondent gave his evidence on the matter. He denied that he produced the video footage. He also corroborated Mr Wangere’s testimony and the testimony of his other witness Bobby Yupi.
26. The evidence, in answer to the two (2) questions asked above, tend to favour the 1st respondent. The petitioner provided no independent or any evidence at all to say that the 1st respondent was the one that produced the video footage. The 1st respondent on the other hand has provided evidence to that effect. The only issue I have regarding the video footage is this. I see some merit in the petitioner’s argument concerning the appearances of the 1st respondent in the two main segments of the video. The first segment contains scenes of the actual student protests that was taken on 18 July 2013. The second segment contains scenes of the 1st respondent where, in a seated position, he explains five (5) main topics that were of concern to the SRC and its students in 2013. I quite agree with the petitioner’s counsel that the 1st respondent looked quite different in his facial appearance in that looked quite older, and I say this simply by looking at the video as it is shown without obtaining any expert views or tests being conducted on the video footage. The 1st respondent and his witnesses had these to say in reply. As for the 1st respondent, he said that the footages of him were taken in 2013, that is, weeks or months apart but before Christmas of 2013. He said he was not eating well during the student protest; that he was under pressure at that time. He said that after the protest had ended, he was well or that he began eating well which he said explains the differences in his appearances in the two (2) main segments of the video footage. He and Mr Wangere deny that the said segment recording was taken well after 2013 or in 2017 before the National Election. Mr Wangere said he released the video footage towards the end of 2013. The 1st respondent’s 2rd witness Bobby Yupi corroborated the evidence of the 1st respondent and Mr Wangere. He said that he was a member of the SRC at that time. He said that it was the SRC’s media unit, which he was a part of, that collated information which was later used in awareness programmes conducted by the university. He said it was him who had instructed Mr Wangere to produce the video footage for the SRC. He said the interview of the 1st respondent in the video footage occurred sometimes in October of 2013, that is, despite suggesting at one point that it may have been done after 2013 which he later clarified.
27. My views are as follows. In regard to the evidence, I do not find any valid or meritorious inconsistencies in the evidence of the 1st respondent. His evidence and the evidence of his witnesses on this point appear consistent and they appear to corroborate each other on the subject matter. Mr Wangere in my view was the crucial witness. He gave his evidence with ease and there was nothing I saw that would reasonably suggest to me that he was not telling the truth. I would say the same for witness Yupi.
28. In regard to the changes in the physical appearances of the 1st respondent, I make the following considerations. The video footage was said to have been produced before Christmas of 2013, that is, around October of that year. So, there may be a difference of about 2 to 4 months, that is, from the date of the student strike in July of 2013, to the date of publication in October, or in November of 2013. So, that would be my first consideration. My second consideration is this. The appearance of the 1st respondent taken in the second segment where he talked about the student’s five (5) points of their protest, was taken whilst the 1st respondent was in a seated position. Secondly, there were three (3) sub-segments recorded of the 1st respondent in the second segment. And in all the three (3) sub-segments, the video shot was taken at close range of the 1st respondent, that is, from shoulder height upwards. As such, his face was featured prominently on the full screen. I note that in regard to sub-segments one (1) and two (2), the position of the camera was lowered and the 1st respondent is seen to be looking slightly downward towards the camera. In that way, he appeared to look big as he stared downward at the camera. In the third (3) sub-segment, the camera was positioned to take the side view of the 1st respondent still at the shoulder height. And I note that lightings were used in the setting which appeared to add a strong colour to the face and hair of the 1st respondent. The third consideration is this. From the first segment or video images of the student strike, the footages taken of the 1st respondent were taken from a fair distance and not at a stationary position, and the 1st respondent was wearing a long white shelve shirt with nothing inside and he looked slim from a distance in the said outfit. In the second segment, the 1st respondent wore a suit with shirt and tie, and the video footages were shot at a very close range. The fourth consideration is this. At the start of the interview in the second segment, the 1st respondent began by stating that it was 2013 and that he was the SRC president of the University of Papua New Guinea. I find the said announcement quite revealing or significant as it clearly shows to me that that was when the video footage was taken. If the petitioner did not believe that, it had the burden of proof and as it is, he has failed to call evidence to support its claim against the evidence of the 1st respondent. To merely observe the segments in the video footage and make submissions to me is insufficient.
29. So, I will say this. Based on the evidence and considerations explained above, I dismiss the petitioner’s claim that the video footage was produced after 2014 or in 2017. I do not see how I can simply make a judgment based entirely on the assertion that because the 1st respondent looked slightly different in certain segments of the video footage, it therefore means that the video footage was taken well after 2013. The burden of proof in this regard rests with the petitioner. But in my view, the petitioner lacked evidence on the issue. In fact, there is no challenge. I find that the video footage was produced by Mr Wangere on or about October of 2013. I find that the video footage was produced by the SRC for the University of Papua New Guinea student’s awareness programme that was to be used in Christmas of 2013.
30. Now, I have watched both video footages on several occasions. I note there is no mention whatsoever of the 2017 National Election in the videos. The 1st respondent makes no mention in the video that he was recording it for his personal interest later or in preparation for the 2017 National Election. And the recording, based the evidence now determined by this Court, was done whilst the 1st respondent was the SRC president and not whilst he was a candidate for the 2017 National Election.
DID THE 1st RESPONDENT DISTRIBUTE THE VIDEO FOOTAGE?
31. Let me now address this next question. Did the 1st respondent distribute the videos at his rallies as alleged? I have considered all the evidence of the petitioner. I have also considered the petition. Let me begin by setting out the four (4) purported cases or scenarios of illegal acts that were pleaded.
Case 1
“ol lain kam go lo Australia ino gutpla lain...ol dangerous lain blo wokim bom.....tintin blo ole m blo terrorists attack....”(this people going to Australia are not good people...they are dangerous people who build bomb....they think about terrorist attack.....)
and other words and statements contained therein and to the effect that terrorists coming into Papua New Guinea through the asylum seekers agreement between Australia and Papua New Guinea would commit terror acts against Papua New Guineans. The named electors also believed and were influenced by the First Respondent when he said he burnt the Australian flag, and that the government introduced the death penalty law to kill Papua New Guineans. Donald Tom Kalimin was influenced by such statements and words of the First Respondent, and thereby was induced, in his choice of voting.
Case 2
“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack.....ol bai salim ol bom nambaut n blowim house...meri pikinini bai dai....” (these people who are going to Australia are not good people...they are dangerous people of making bombs.....they think about terrorist attack....they will send bombs about and blow up houses...women and children will die...).
and other statements made by the First Respondent in the video footage.
Case 3
“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack.....ol bai salim ol bom nambaut n blowim house...meri pikinini bai dai....” (these people who are going to Australia are not good people...they are dangerous people of making bombs.....they think about terrorist attack....they will send bombs about and blow up houses...women and children will die...).
That terrorists were allowed into Papua New Guinea and would commit r terror acts against Papua New Guineans; that the First Respondent did burn the asylum seekers agreement with Australia and the Australian flag because of the threat of terrorism in Papua New Guinea; and that the government introduced the death penalty law, which allowed ordinary citizens to be killed. The First Respondent described himself as the leader who fought against these things, upon which Joseph Aginime believed the statements and words of the First Respondent and fearful of what could take place especially about the asylum seekers, thereby, was induce in his choice of voting.
Case 4
32. In regard to the Case 1, Donald Tom Kamini (witness Donald) and Kenneth Manman (witness Kenneth) testified for the petitioner. Witness Donald was asked whether the 1st respondent was present at the times and locations where the video was played and viewed. His answer was “no”. Witness Kenneth was asked the same question and his answer was also “no”. He was also asked these two (2) questions. Firstly, whether he believed the 1st respondent when he said in the video footage that the video was produced in 2013 to which he answered, “yes”, and whether he had seen the 1st respondent transferred the video footage at the material time through or using a mobile phone to which he answered, “no”.
33. In regard to cases 2 and 4, which happens to be the same alleged event, witnesses Abraham Rolu (witness Rolu), Jerry Kokore (witness Jerry), Moses Kahamo (witness Moses) and Benzie Filele Hupa (witness Benzie) were called in to testify. Witnesses Jerry, Beni Filele and Mosses Kahamo were not led in their evidence nor were they cross-examined on whether the 1st respondent had distributed the video footages to each of them at the material times alleged. As for witness Rolu, he was asked the said question to which he replied, “no”.
34. In regard to case 3, witnesses Joseph Aginime (witness Joseph) and John Miamel (witness John) were called in to testify. Witness Joseph was asked whether the 1st respondent had transferred the video footage over to his phone to which he replied “no”. Witness John was alleged to have viewed the video footage with witness Joseph through witness Joseph’s phone. He (i.e., witness John) was not paying attention when the video footage was played to him in Court. The fact was raised by the 1st respondent’s counsel in cross-examination. I must say that I do not find this witness impressive. He was confused and gave conflicting answers during cross-examination. In the end, he also admitted that he never understood the video footage.
35. With all that, I find no evidence adduced by the petitioner that shows that the 1st respondent was the person that distributed the video footages either by CDs or flash drives or through other means, at the locations alleged in cases 1, 2, 3 and 4 in the petition. I also note that there were claims made by some of the petitioner’s witnesses that other persons may have distributed the video footages for the 1st respondent. But again, no evidence was called to identify these persons, and prove that they were agents of the 1st respondent.
CAMPAIGN SPEECHES
36. I note that the 1st respondent did not deny attending and making campaign speeches on the dates alleged in cases 1, 2 and 4 (cases 2 & 4 were at the same location). He however disputes some of the allegations that concerns what he was said to have said and did at the two (2) locations. I will address these in detail later below in my judgment. The 1st respondent said that the video footage was produced and distributed in 2013 throughout the country, and that people knew about it, and that it was not a new thing. He also said that he referred to the video footages in his speeches as a “marketing strategy” as he puts it, whilst he was campaigning.
SATISFYING THE ELEMENTS OF UNDUE INFLUENCE/ ATTEMPTED UNDUE INFLUENCE
37. Let me determine whether the petitioner has met the requirements of undue influence or attempted undue influence.
38. There is no doubt that the 1st respondent was a candidate who had contested the Eastern Highlands Provincial Electorate in the 2017 National Election. The nine (9) witnesses of the petitioner who gave evidence in Court were found by this Court to be electors or voters who had voted in the 2017 National Election. The main allegation of undue influence alleged against the 1st respondent relates to the use of, viewing of and references made to, the video footage. I have found the video footages, that is, both versions that were tendered in Court, to be similar or the same. I have also found that the video footage was produced in or about October of 2013, that is, by Spencer Wangere upon the request of the SRC body for its awareness programmes.
39. So, the 1st respondent has admitted that he had made references to the video footage in his speeches during the campaign period as part of his marketing or campaign strategy. The question I must ask now is this. Is it okay to do that, that is, for the 1st respondent to refer to the video footage in his campaign speeches? I would answer, “yes”, to this question. In my view, the video was not produced by the 1st respondent for his 2017 campaign, but rather, it was produced like a documentary, for awareness purposes by the SRC in 2013. It had been distributed at the end of the said year and it was made available to the public at large. Making references to the said video or making speeches during the campaign period with references to the said video is fine. If there are any issues with the author of the video footage or its production, which does not concern the 1st respondent, that may be a separate matter that may be open to challenges or to prosecution. But for a candidate to refer to a work, or an activity, or a past achievement, in his campaign speech, is, in my view, acceptable, or I do not find anything wrong with that.
40. Having said these, this is not the end of the matter. Let me now consider the evidence of those witnesses who have testified and who have said that they were induced or were influenced by either the speeches of the 1st respondent or by what he had said in the video footage.
Witness Rolu: This witness gave oral and written evidence in relation to Case 2 as pleaded in the petition. His affidavit is marked Exhibit P5. There was no contest on this witness’s status as an elector in the 2017 National Election. Nevertheless, I found above in my judgment that he was an elector in the 2017 National Election. The witness is a professional. He is an accountant. His testimony is that on 13 June 2017, he was at the Goroka National Park. There he heard the 1st respondent campaigned where he gave his speech. This is what he said he heard,
(i) Mi organism UPNG student protest march igo long parliament haus” (organised the UPNG students protest march and led to the Parliament House)
(ii) Mi kukim agreement pepa blo PNG govaman na Australia gavman lo asylum seekers deal” (burnt the Australia and PNG Government Asylum seekers agreement paper).
(iii) “Mi kukim Australia flag” (I burnt the Australian flag).
(iv) “Ol frens blo mi tokim me Australia gavaman banim mi lo go Australia after mi kukim flag” (My friends told me that I am banned by the Australian government from travelling to Australia after I burnt their flag).
(v) “Mi lawyer na political scientist. Mi save fight lo rights blo ordinary man meri lo national na international level."(I am a lawyer and a political scientist and represented the rights of ordinary people and fought at the National and international level).
(vi) “Mi producim wanpela video CD blo university student protest wantaim Australia Flag burning na mi distributim long province."(I produced a video about UPNG students protest under my leadership with the Australian flag burning distributed for viewing in the province).
Then on 20 June 2017, witness Rolu obtained a copy of the video footage from a third party. He said he viewed it later together with his family. He said he was particularly struck when he heard the 1st respondent said these in the video footage, and I quote,
“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack.....ol bai salim ol bom nambaut n blowim house...meri pikinini bai dai....” (these people who are going to Australia are not good people...they are dangerous people of making bombs.....they think about terrorist attack....they will send bombs about and blow up houses...women and children will die
I do not find that witness Rolu, a professional, would be categorised as a vulnerable person at the time who could have been affected by the speech. The petitioner did not call evidence to say whether witness Rolu had a vulnerability of any sort. The speech, in my view, was a campaign speech. It was not aimed at any specific person or to witness Rolu. The 1st respondent making that speech was not in a dominant or controlling position over witness Rolu or over the crowd that was there. For example, he was not surrounded with armed guards with high powered guns, or he did not stand there with an army general that would have exerted control over the rally or the crowd and on witness Rolu. By the looks of it, it appears that he was merely a candidate at that time, who, it seems, wanted a chance to be heard in relation to the seat which he was standing for. And this. Campaign speeches by candidates or politicians are not necessarily always accurate or truthful. That is not an uncommon fact and it should not come as a surprise to any reasonable thinking person. Imagine for a moment if we were to have laws where an elector can hold every candidate or every politician accountable or liable for every single word that is uttered by the candidate or the politician during his or her campaign.
In evidence, the 1st respondent appeared to admit most of what was quoted above at his public speech on 13 June 2017. In regard to allegation (vi) where it was alleged that the 1st respondent had claimed that he produced a video footage, he has denied that, but that said, I have also addressed that above in my judgment. By stating that I produced the video I think was taken out of context.
In regard to viewing of the video footage, I have already found that the video footage was not produced by the 1st respondent; that it was a documentary type video which was produced in 2013 by witness Wangere upon the request of the SRC which had been used for a specific purpose, again I have covered that above in my judgment. I note that witness Rolu himself, at his own free will, had obtained a copy of the video and had viewed it together with his family. I find the allegations raised by witness Rolu baseless or insufficient to amount to undue influence or attempted undue influence.
I also refuse to venture into the details of the truthfulness or otherwise of what the 1st respondent had stated in the video footage. It was not something which he produced with the aim of using in the 2017 campaign. Whether the video footage contains truthful information or not, it was produced by the SRC in 2013 and it has been out in the public domain since that time.
I will also repeat this. There is nothing contained in the six (6) allegations or in the quoted video speech above, where, upon hearing, would directly or indirectly force or infer any form of threats made or that may be presumed to be made by the 1st respondent, that the person or persons hearing them would feel compelled to vote for the 1st respondent.
W/ Jerry: This witness gave oral and written evidence in relation to Case 2 as pleaded in the petition. His affidavit is marked Exhibit P7. The witness’s status as an elector for the 2017 National Election was contested. And I note that I have overruled that in my judgment and have found the witness to be an elector in the 2017 National Election. This witness appears to have higher educational attainments. He is currently a student at the University of Goroka studying business accounting. He alleges that he was with witness Rolu, and he corroborated what witness Rolu has said. Witness Jerry said he also heard what the 1st respondent had said that day during the public rally on 13 June 2017. He reproduced word for word the words that witness Rolu had quoted, in his affidavit, and I quote,
(i) Mi organism UPNG student protest march igo long parliament haus” ( organised the UPNG students protest march and led to the Parliament House)
(ii) Mi kukim agreement pepa blo PNG govaman na Australia gavman lo asylum seekers deal” (burnt the Australia and PNG Government Asylum seekers agreement paper).
(iii) “Mi kukim Australia flag” (I burnt the Australian flag).
(iv) “Ol frens blo mi tokim me Australia gavaman banim mi lo go Australia after mi kukim flag” (My friends told me that I am banned by the Australian government from travelling to Australia after I burnt their flag).
(v) “Mi lawyer na political scientist. Mi save fight lo rights blo ordinary man meri lo national na international level."(I am a lawyer and a political scientist and represented the rights of ordinary people and fought at the National and international level).
(vi) “Mi producim wanpela video CD blo university student protest wantaim Australia Flag burning na mi distributim long province."(I produced a video about UPNG students protest under my leadership with the Australian flag burning distributed for viewing in the province).
Witness Jerry said that several days later, he purchased a copy of the video footage from a third party. He said he viewed it and believed that what he had viewed or heard were true.
This is my finding. The speech made by the 1st respondent at the Goroka National Park on 13 June 2017 was a public or general campaign speech. It was not targeted at any one person or in this case witness Jerry. Witness Jerry is a well-educated person. No evidence was called to say that he fits into a special type of group of persons who may be classified as vulnerable. The 1st respondent making that speech was not in a dominant or controlling position over witness Jerry or over the crowd that was listening. If the 1st respondent had made the speech in conjunction to what he had said in the video footage, then as I have already determined above in my judgment, the video footage was not produced by him but rather by the SRC which had been circulated in 2013. And I do not find anything wrong if the 1st respondent had to refer to something that had been produced not by him but by the SRC in 2013, in his campaign speech to the public at large.
In regard to witness Jerry’s claim that he obtained a copy of the video footage from a third party and viewed it which he said had affected his judgment to cast his vote, I will say this. He did all that voluntarily. No one had forced him to view the video. He also had time on his hands where he could have talked to people to seek their views, that is on whether to believe or not to believe what was contained or said in the video. If he had chosen not to, then again, he would have been free to make that decision. And I repeat my findings in relation to who produced the video, when it was produced and for what purpose, above in my judgment.
W/ Benzie: This witness gave oral and written evidence in relation to Case 4 as pleaded in the petition. His affidavit is marked Exhibit P9. His status as an elector was not contested by the respondents. I have ruled above that he was an elector at the material time. He is said to be a community leader. He said that he was with witness Moses at the material time. He said they both appeared at the Goroka National Park on 13 June 2017 together with a huge crowd and they heard the 1st respondent gave a speech. He quoted in part at paragraph 6 of his affidavit what was said to have been uttered by the 1st respondent that day, and I quote,
(i) Mi organism UPNG student protest march igo long parliament haus” (organised the UPNG students protest march and led to the Parliament House).
(ii) Mi kukim agreement pepa blo PNG govaman na Australia gavman lo asylum seekers deal” (burnt the Australia and PNG Government Asylum seekers agreement paper).
(iii) “Mi kukim Australia flag” (I burnt the Australian flag).
(iv) “Ol frens blo mi tokim me Australia gavaman banim mi lo go long Australia after mi kukim flag” (My friends told me that I am banned by the Australian government from travelling to Australia after I have burnt their flag).
(v) “Mi lawyer na political scientist. Mi save fight lo rights blo ordinary man meri lo national na international level."(I am a lawyer and a political scientist and represented the rights of ordinary people and fought at the National and international level).
(vi) “Mi producim wanpela video CD long student protest wantaim Australia Flag burning na distributim long province."(I produced a video about UPNG students protest under my leadership with the Australian flag burning distributed for viewing in the province).
Witness Benzie said that he was convinced by the said speech that the candidate was a genuine leader. He said after that, he campaigned for the 1st respondent in his village.
In answer to this, I will firstly repeat what I have said and ruled in relation to witnesses Rolu and Jerry above, here. But I will also say these. If the witness believed that the speech was not true or that it contained false information, he was at liberty to not to vote for the 1st respondent. In this case, he said he was convinced and he went on to campaign for him. He did not state which part of the speech was a lie or false. He also had time on his hands to make up his mind to vote. No evidence was called to say whether he comes from a special class or group of persons who for example would be vulnerable. Some of the words allegedly uttered, for example, “that the 1st respondent said that he burnt the Australian Flag,” suggests that he may have committed a wrong. If that was the case, then why would witness Benzie and those others who were said to have witnessed the speech be influenced to vote or support the 1st respondent? Should that not be a reason to refrain from supporting the 1st respondent? All these do not make sense to me, and I do not think that the petitioner has thought this out carefully before he made these allegations against the 1st respondent.
The witness also alleged at paragraph 7 of his affidavit, and I quote, I also witnessed the First Respondent’s agents distributed what appeared to be a video CDs. There were so many people rushing for the CDs that I did not have a chance to get one. To me, I find that allegation vague. The witness did not identify the agents. He did not exactly know what had been purportedly distributed. Secondly and in my view, there is nothing wrong with that if in fact the CDs were distributed. Like I have stated above, the video footage was produced by the SRC in 2013 for a different purpose. Evidence have shown that. And as stated above in my judgment, there is nothing in the video footage whereby 1st respondent had made references of his intention to stand for the 2017 National Election. And this. If the 1st respondent wanted people to see what he had done or said when he was the SRC president in 2013, then what is the crime there if he were to hand out copies of the video to the public?
W/ Moses: This witness gave sworn oral testimony without filing an affidavit in relation to Case 4 as pleaded in the petition. The respondents objected to him giving evidence. I overruled the objections and have allowed him to give oral evidence. I have also ruled above in my judgment that he was a registered voter or elector in the 2017 National Election. This witness said that he attended and watched the 1st respondent gave his speech at the Goroka National Park with witness Benzie on 13 June 2017. He is well educated. He had been employed by the National Parliament as a staff for about 35 years. During examination in chief, the witness stated what he heard at that time. He said he was with witness Benzie and he summarised what witness Benzie had stated at paragraph 6 of his affidavit. He said he did not believed any of the words that were uttered by the 1st respondent at the rally on 13 June 2017. He tried to disprove what he said were words that were uttered by the 1st respondent at the rally. In the end, his final views were as follows. He said he did not believed it when the 1st respondent told the crowd that he burnt an Australian flag during the student protest in 2013. He said that he was in Port Moresby during the period of the student unrest in 2013. He said that whilst he was there, he never actually saw the flag burning as alleged by the 1st respondent, which was why he said that he did not believed it when the 1st respondent told the crowd that he burnt an Australian flag in 2013. He said Australia was a sovereign nation so if the burning of the flag had occurred, it could have taken some actions against the 1st respondent back then. In relation to the asylum seekers agreement, he said he only heard that the agreement was burnt but he said he did not believed it to be true. In relation to the passing of the death penalty law, he said he did not know at that time whether the Act was passed by parliament into a law. In cross-examination, the witness was also asked in relation to the six (6) points that were said to have been uttered by the 1st respondent which were restated by witness Benzie in his evidence to which witness Moses said that he did not believed them. Witness Moses also said that he also did not believed it when the 1st respondent told the crowd that he produced the video footage when he was the SRC president in 2013.
Witness Moses also made a general remark that at that time, he heard people rushing to the field to get copies of the CDs containing the video footage.
My findings are as follows. Firstly, I repeat here what I have stated and ruled above, in relation to witnesses Rolu, Jerry and Benzie. The only other significant finding I will add here is this. Witness Moses said that he did not believed what the 1st respondent was said to have uttered on 13 June 2017. In my view, that was a choice that he had made at that time or before he had to exercise his right to vote. The witness was entitled to his belief. The question which then arises I presume would be this. Did the 1st respondent unsuccessfully tried to induce witness Moses, and would that be considered as a case of attempted undue influence? In my view, I do not think so. The event and the speech both occurred at a public place. The speech was not aimed at anyone or to witness Moses with a targeted message of threats or inducement. Whether witness Moses believed in what was said in the speech or not was a matter for him. To imply that because you did not believe what a public speaker had said, that that therefore means that he had tried to but had failed to induce you or that that would amount to attempted undue influence, is, with respect, a far broad assumption, or to put it simply, speculative. As I have stated above in my judgment, politicians or candidates make speeches all the time. Not every word uttered by a politician or a candidate in a public area or whilst campaigning, may be accurate, or true, or be consistent with every person’s view. Just because someone did not believe what a candidate had said, that does not itself therefore means that the candidate should be guilty of undue influence or attempted undue influence.
W/ Joseph: This witness gave oral and written evidence in relation to Case 3 as pleaded in the petition. His affidavit is marked Exhibit P11. It is fair to say that this witness has no or minimal education. He said he went up to as far as grade 3 in his primary education. He is illiterate, and the contents of his affidavit were translated to him from English to Pidgin by his lawyer before he signed. I have also found this witness as an elector in the 2017 National Election. He said that on 3 May 2017, at Lopi market in Goroka, a friend of his namely witness Wato Avinaga told him that he had a video footage of the 1st respondent. He said he was curious, so he asked his friend to transfer the video to his mobile phone. He said the video was transferred to his phone via Bluetooth. He said he and witnesses John and Wato viewed the video footage together several times on his mobile phone.
His written evidence of what he said he heard in the video footage is identical to what witness Rolu has said in his evidence, that is, and I quote,
“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack.....ol bai salim ol bom nambaut n blowim house...meri pikinini bai dai....” (these people who are going to Australia are not good people...they are dangerous people of making bombs.....they think about terrorist attack....they will send bombs about and blow up houses...women and children will die
Witness Joseph said at paragraph 7, and I quote, I really believed that terrorists were allowed into Papua New Guinea and would commit terror acts against Papua New Guineans; that the First Respondent did burn the asylum seekers agreement with Australia and the Australian flag became of the threat of terrorism in Papua New Guinea, and that the government introduced the death penalty law, which allowed ordinary citizens to be killed. The witness said that these had made him become fearful of the asylum seekers which was why he said it had affected his choice of voting in the 2017 National Election.
Given the minimal level of education this witness has, what he said may be the case, that is, he could have been influenced by what he had seen in the video. But having said that, I note that the witness has only selected a fraction of what had been said or captured in the video. For this Court to assess whether the 1st respondent should be guilty of undue influence or attempted undue influence, it must make its findings based on all the evidence, and that include viewing the entire footage of the video.
In this case, let me say this. Firstly, I note that the video was not produced by the 1st respondent as I have determined above in my judgment. It was produced by the SRC in 2013 for the student’s campaign which was carried out in December of that year against the then government’s conduct on various national issues that were identified by the students. The issues were of course covered in the video footage. Secondly, the witness had on his own free will requested for a copy of the video. He had it and viewed it on his own accord at Lopi market on 3 May 2017. Thirdly, witness Joseph had time after that to see other people or talked to them. He had time on his hands to make up his mind before polling commenced.
Witness John: This witness gave oral and written evidence in relation to Case 3 as pleaded in the petition. His affidavit is marked Exhibit P13. He was an elector as I have found above in my judgment, that is, despite objections by the respondents. He is a peace officer, so he appears to have some level of education. His evidence corroborates witness Joseph’s evidence. He said he and witness Joseph viewed the video footage on witness Joseph’s mobile phone at Lopi market in Goroka on 3 May 2017.
I will say the same here to what I have said and found in relation to witness Joseph’s evidence. I will add this. When he was cross-examined, the witness said that he did not understood the contents of the video footage. I find this response damning to the witness’s evidence.
W/ Wato: This witness gave oral and written evidence in relation to Case 3 as pleaded in the petition. His affidavit is marked Exhibit P15. His elector status was not challenged. I found that he was an elector in the 2017 National Election. He is a leader of his village. He is also a former provincial member in the Eastern Highlands Provincial Government. His sworn evidence is written in English and I note evidence of translation which is attached as page three (3) to Exhibit P15. The witness does not appear to be well educated.
Witness Wato firstly corroborated what witnesses Joseph and John have said. He said he was the one that Bluetooth the video to witness Joseph’s mobile phone. He said the three (3) of them viewed the video footage together on 3 May 2017 at Lopi market in Goroka. When he was asked how he had acquired the video footage to his phone, he answered “from a young man” or something to that effect. He did not state the young man’s name. When he was questioned whether the 1st respondent had Bluetooth the video to his phone he answered “no”.
The witness did not testify to the actual allegations of undue influence or attempted undue influence. His evidence was that he had seen the video; that it was widely distributed and viewed but he did not say that it was distributed by the 1st respondent nor did he name any person that is linked to the 1st respondent who may have distributed the CDs containing the video footage.
W/ Donald: This witness gave oral and written evidence in relation to Case 1 as pleaded in the petition. The witness’s elector status was not challenged. I have found that he was an elector in the 2017 National Election. His affidavit is marked Exhibit P17. The witness did not state his level of education nor his profession in his evidence. He has given sworn evidence in English, so I will assume that he has some level of educational background. He testified as follows. He said that on 15 June 2017, at Nonambaro village, in Waterbung in Eastern Highlands Province, he heard at a gathering or at a rally the 1st respondent uttering the following words, and I quote,
(i) “Mi kukim Australia and PNG gavaman agreement papa na kukim Australia flag.” (I burnt the Australia and PNG Government agreement paper and burnt the Australian flag).
(ii) Ol frens blo mi tokim me Australia gavaman banim mi lo go Australia after mi kukim flag blong ol” (I am banned by the Australian Government from travelling to Australia after I burnt their flag as my friends have told me).
(iii) Mi lawyer no political scientist no mi save representim rights blo ol ordinary people na fight strong wantaim gavaman long national na international level” (I am a lawyer and a political scientist and represented the rights of the ordinary people and fought vigorously with the government at the National and international level).
(iv) Mi producim wanpla video blo ol university student protest taim mi student leader na ol kukim Australia flag, lo distributim inside long province” (I produced a video about UPNG students protest under my leadership with the Australian flag burning distributed for viewing in the province).
The witness also said that he had witnessed that between the period 12 June 2017 to before polling, his neighbour, whom he only knew by the name Andrew, was playing the video footage to the public at large at his house. He said at one occasion, he attended and viewed the video footage together with witness Kenneth Manman. He said he heard the following words uttered by the 1st respondent, and I quote,
“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack...” (these people going to Australia are not good people....they are dangerous people who built bomb.....they think about terrorist attack.....)
The witness said that he heard the above statement so many times that it got stuck inside his mind. He said he really believed what the 1st respondent had said in the video footage. The witness said that prior to that, he had no idea who the 1st respondent was.
My view is this. The video footage was not produced by the 1st respondent. It was produced by the SRC for their 2013 awareness programme. Even in the quoted public speech and I quote in part, Mi producim wanpla video blo ol university student protest taim mi student leader na..... (underlining is mine), the 1st respondent was said to have told the crowd that he produced the video footage whilst he was the student leader. That to me may be regarded as evidence from the petitioner corroborating the 1st respondent’s own evidence plus the evidence of Mr Wangere and Mr Yupi, in terms of considering when the video was produced, who produced it and for what purpose. I think the use of the term “mi producim” or “I produced it” was taken out of context by the petitioner and his witnesses. The 1st respondent may ultimately be responsible for the production of the video footage as the then SRC president, but obviously it would have been done so for or on behalf of the body that he represented at that time. I also note that this witness viewed the video voluntarily at his own free will. No one had forced him to watch the video. When I consider the video footage in its entirety, there is no reference made directly or indirectly that the video was produced for the 1st respondent’s campaign in 2017. And this. I also find nothing wrong for a candidate to refer to any earlier event or activity that he was involved in in the past to show what he had accomplished to the voters, to make an argument in a campaign speech. I say this in view of what the 1st respondent had said in his oral testimony, that is, that he had referred to the video footage as a marketing or campaign strategy at his various campaigns.
In regard to the words said to have been uttered by the 1st respondent on 15 June 2017, at Nonambaro village in Waterbung in Eastern Highlands Province, I will simply repeat my views and findings I made above in relation to the other witnesses.
W/ Kenneth: This witness gave oral and written evidence in relation to Case 1 as pleaded in the petition. His affidavit is marked Exhibit P19. The witness’s elector status was not challenged. I found him to be an elector for the 2017 National Election. The witness gave written evidence in English. There is evidence of translation attached to his affidavit, that is, from English to Pidgin before he signed. There is no deposition of his education back ground, so I assume that he has minimal or none. During cross-examination, the witness hesitantly said that he was a campaign co-ordinator of the petitioner in the 2017 National Election.
Witness Kenneth corroborated witness Donald’s evidence. He said that during the campaign period, the video footage was played regularly to the public at Andrew Tony’s house, that is, the neighbour of witness Donald. He said Andrew Tony was a supporter of the 1st respondent. He said at one time, he and witness Donald watched the video together. He said after viewing the video many times, he believed the statements made in the video as true. He said at paragraph 9 of his affidavit, and I quote in part, I honestly believed the First Respondent’s statement that he burnt the Australian flag and that the government had introduced the death penalty and ordinary citizens of Papua New Guinea will be killed. I find this deposition partly incorrect. In the video, it was said that people charged with crimes may face the death penalty. It did not say that the introduction of the death penalty law will kill innocent law-abiding citizens who have not committed any offences.
I can only repeat what I have already found and stated above in my judgment in relation to all the other witnesses, here as well.
DISCHARGE OF BURDEN OF PROOF
41. With all these, and in view to my considerations, I ask myself this. Did the petitioner discharge the required standard of proof, that is, on a balance of probabilities? Did he furnish evidence to establish the elements of undue influence or attempted undue influence?
42. In my earlier published ruling on objection to competency in Simon Sia Bintago v. Peter Numu and 1 Or (2018) N7106, I stated in part at paragraph 47, and I quote:
Based on my ruling above, this Court may be guided by the provisions of section 102, but, unlike a Criminal Court, it has no obligation to treat or prosecute the offence of undue influence like what a prosecutor would do or what a Criminal Court would require, in a Criminal Court proceeding.
43. The Supreme Court in John Warison v. David Arore (supra) stated at paragraph 15, and I quote in part:
Again, we find that this is because of his Honour’s strict proof approach and his view that the appropriate standard of proof is the criminal standard or proof beyond reasonable doubt. The standard of proof required is not same as the criminal standard for the basic reason that an election petition is a civil cause, therefore the settled standard of proof is to the entire satisfaction of the Court: Neville Bourne v. Manasseh Voeto [1977] PNGLR 298; Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 and Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5688.
44. The Supreme Court in Sir Arnold Amet v. Peter Charles Yama (2010) SC1064, said at paragraph 61 of its judgment, and I quote in part:
In an Election petition, the onus and standard of proof of assertions of an illegal practice contrary to s.215(3)(a) of the Organic Law and undue influence contrary to s.102(b) of the Code is well settled in this jurisdiction. It was first held in the case of Neville Bourne v Voeto [1977] PNG 296 that, the standard of proof required is such that the Court should require clear and cogent proof so as to induce on the balance of probabilities, an actual persuasion of the mind or to the entire satisfaction of the Court, the materials asserted for proof.
45. I would adopt these herein. So, if the standard of proof in an election petition proceeding is below beyond reasonable doubt, and it is rather based on the balance of probabilities, I ask myself this? What percentage of proof may be regarded or shall constitute sufficient proof on the balance of probabilities to the entire satisfaction of the Court, as it is held in the case law? Obviously, the case law indicates a higher standard that is required of a petitioner in an election petition proceeding. For this case, I would assess and estimate the required percentage on the standard of proof, namely, the balance of probabilities, to be above 70% and close to or exceeding 90%. The petitioner has that higher standard of proof to establish undue influence and attempted undue influence. The burden of proof of course also rests with the petitioner. It is only after the petitioner has discharged the said burden of proof, that it would shift to the 1st respondent.
46. What I have found in my judgment, however, shows that the petitioner herein has failed to satisfy to the full satisfaction of the Court, that the 1st respondent committed undue influence and attempted undue influence. As a result, this election petition must therefore fail.
COST
47. An award of cost is discretionary. I refer to Rule 19(1) of the Election Petition Rules 2017 which states that the Court may make such orders as to costs as it deems fit. Subject to the specific order for cost which I had made on 16 February 2018 regarding objection to competency, the petitioner shall pay the respondents’ costs of the petition. I will further order that the security deposit of K5,000 held by the Registrar of the National Court shall be paid in equal portions to offset the respondents’ costs. Additional costs incurred by the respondents shall be taxed by the Registrar, if not agreed, under schedule 3, pursuant to Rule 19(3).
THE ORDERS OF THE COURT
48. I make the following orders:
____________________________________________________________
Sirae & Co Lawyers: Lawyers for the Petitioner
Kongri Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent
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