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Gore v Amuli [2023] PGNC 15; N10114 (24 January 2023)

N10114


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 38 OF 2022

IN THE MATTER OF A DISPUTED RETURN
FOR THE SOHE OPEN ELECTORATE

BETWEEN
DELILAH PUEKA GORE
Petitioner

AND
HENRY JONS AMULI
First Respondent


AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Wurr AJ
2022: 30th November, 01st & 05th December
2023: 24th January


ELECTIONS – PETITIONS – “BRIBERY, UNDUE INFLUENCE”: Organic Law on National and Local-level Government Elections, Section 215 – elements of offences of bribery (Criminal Code, Section 103).

Cases Cited:

Agonia v Karo [1992] PNGLR 463
Anton Yagama v George Wan & Electoral Commission (2013) N5123
Benny Diau v Mathew Gubag (2004) SC775
John Warisan v David Arore (2015) SC1418
Neville Bourne v Manesseh Voeto [1977] PNGLR 298
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Pokaya v Marape (2018) N7234
Powes Parkop v Wari Vele (NO 1) (2007) N3320
Robert Kopaol v Philemon Embel (2003) SC727
Simitab v Isifu (2017) N7076
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Wasega v Karani (1998) N1696


Terminology and dates

In this judgment:

Counsel:

D. Kipa, for the Petitioner
B. Lai, for the First Respondent
N. Onom, for the Second Respondent


JUDGMENT


24th January, 2023


  1. WURR AJ: The Petitioner, Delilah Pueka Gore filed a petition disputing the election of the First Respondent, Henry Jons Amuli as member for Sohe Open in the 2022 National General Elections. She seeks orders that the first respondent was not duly elected, that the election be declared null and void and that a by-election be held.
  2. The petition initially contained 4 grounds, all relating to alleged acts of bribery or undue influence. Two (2) of the grounds were alleged to have been committed by the First Respondent and the other two by another person.
  3. On the day of trial, the Petitioner submitted through her lawyer, Mr Kipa that she could not locate some of her witnesses, hence sought to abandon the first 2 grounds which were levelled against the First Respondent, and pleaded as grounds 1 & 2 respectively.
  4. The Trial proceeded on the 2 remaining grounds.

UNCONTESTED FACTS


  1. The parties had agreed on certain facts as outlined in the Statement of Agreed and Disputed Facts, which are that the Petitioner and the First Respondent were candidates who contested for Sohe Open Electorate in the 2022 National General Elections (herein abbreviated as “NGE”). The Petitioner was the third runner up at the conclusion of counting and declaration.
  2. The conduct of this General Election was the lawful responsibility of the Second Respondent under the Organic Law on National and Local-level Government Elections (herein referred to as ‘Organic Law’) hence its servants and employees organized and conducted the 2022 NGE.
  3. On 12 May, 118 Writs for the 2022 NGE were issued by the Governor General including that of Sohe Open Electorate.
  4. On 19 May, the Petitioner nominated to contest the elections, along with 44 other candidates for Sohe Open Electorate. The Electorate comprises of four (4) Local Level Governments and they are Higaturu, Kira, Kokoda, and Tamata.
  5. Polling for Sohe Open Electorate was scheduled to start on 04 July but commenced on 06 July instead, and ended on 17 July.
  6. The Returning Officer appointed by the Second Respondent to conduct the election process for the Sohe Open Electorate in the 2022 NGE was Alex Uranian.
  7. The election was conducted under the Limited Preferential Voting system where electors voted for three candidates in the order of 1st, 2nd and 3rd preferential choices.
  8. The First Respondent was declared the winner by the District Returning Officer Alex Uranian on 05 August at the Orokaiva Market, Popondetta Town, Oro Province. The Writ was returned on 09 August by the Returning Officer to the Electoral Commissioner.
  9. The First Respondent at the time of the declaration polled 9,120 votes, the second runner up Paulinias Uhena polled 7,463 votes and the Petitioner polled 6,436 votes. The Absolute Majority was 8,292. The total ballot (votes) casted was 37,493 for the electorate.

RELEVANT PRINCIPLES ON ALLEGATION OF BRIBERY


  1. It is settled law that unlike illegal practices, errors, omissions and irregularities, only one proven act of Bribery or Undue Influence is sufficient to upset a whole election outcome. (See Powes Parkop v Wari Vele (No 1) (2007) N3320, Anton Yagama v George Wan & EC (2013) N5123, amongst others).

SECTION 215 OF THE ORGANIC LAW


  1. Under s 215 of the Organic Law “undue influence” and “bribery” are grounds on which a successful candidate’s election can be declared void. s 215 (voiding election for illegal practices) states:

(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.

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

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

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

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

  1. It is settled law that “bribery” in Section 215 of the Organic Law means one of the offences of bribery created by Section 103 of the Criminal Code (see Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, Sir Arnold Amet v Peter Charles Yama (2010) SC1064).

SECTION 103 OF THE CRIMINAL CODE


  1. Relevantly s 103 (a) (i)(iii) (d) of the Criminal Code provides for the offence of Bribery in the following manner:

A person who—

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for any person, any property or benefit of any kind—

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) .............................................................

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) ........................................................................................................; or

(c) ......................................................................................................; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) .........................................................................................................................; or

(f) .........................................................................................................................; or

(g) ..........................................................................................................................,

is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not
Exceeding one year.


  1. Under Section 103(a)(iii) the Petitioner must prove that the First Respondent:
  2. When determining an allegation of failure to comply with a requirement of the Organic Law, the Court shall pay close regard to the requirements of s 217 of the Organic Law which states:

“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”.


  1. In my assessment of the evidence and the overall case, I have endeavored to uphold this principle, and in doing so has led me to make this decision.

WHAT IS THE STANDARD OF PROOF?


  1. Before I go on to assess the evidence and make findings of fact, it is important that I make a determination on what the correct standard of proof is in Election Petition matters.
  2. Relying on the cases of Agonia v Karo (1992) PNGLR 463, Wasega v Karani (1998) N1696 and Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Mr Kipa for the Petitioner submitted that in bribery and undue influence cases, the standard of proof is higher than the civil standard but less than the criminal standard of proof, which is beyond reasonable doubt. Mr Lai and Mr Onum for the First and Second Respondents respectively, have a different view. They argue that the standard of proof is beyond reasonable doubt, and rely on the case of Jim Simitab v Kevin Isifu (2018) N7076, a judgment made by His Honour Justice Cannings.
  3. This issue was settled by the Supreme Court (consisting of their Honours Gavara Nanu J, Yagi J, & Poole J) in John Warisan v David Arore & Electoral Commission (2015) SC1418. The Highest Court held that in election petition cases, the criminal standard should not be insisted on as the relevant standard of proof is “to the entire satisfaction of the Court”. This means the petitioner must prove all elements of the offence alleged to the entire satisfaction of the Court.
  4. In the case of Pokaya v Marape (2018) N7234, his Honour Justice Cannings said this at paragraph 15 of his judgment:

In Isoaimo I said that the petitioner must prove his case according to the criminal standard of proof of beyond reasonable doubt. I said the same thing recently in Jim Simitab v Kevin Isifu (2018) N7076. Mr Leo, for the first respondent, submitted that I should take the same approach here. However Mr Haiara alerted me to the recent decision of the Supreme Court (Gavara Nanu J, Yagi J, & Poole J) in John Warisan v David Arore (2015) SC1418, which says something different. The Court said that the criminal standard should not be insisted on and that the relevant standard of proof is “to the entire satisfaction of the Court”. As that appears to be the most recent Supreme Court decision on this point, I feel obliged to follow it. So the petitioner must prove all elements of the offence to the entire satisfaction of the Court”.


  1. This Court is also obliged to follow the Supreme Court decision. I will now address the two remaining grounds on the petition.

GROUND 3 OF THE PETITION


  1. The allegation essentially reads:
  2. From these set of facts, Ground 3 is pleaded as follows:

WHETHER THE PETITIONER HAS PROVEN THE EXISTENCE OF ALL THREE ELEMENTS OF BRIBERY TO THE ENTIRE SATSIFACTION OF THE COURT


  1. For convenience I restate here the three (3) elements of the offence of bribery. Under s 103(a)(iii) of the Criminal Code, the Petitioner must prove that the First Respondent:
  2. The National Court in the case of Pokaya v Marape (supra) held that the first two elements run together. Therefore the relevant question to ask is whether the Petitioner has proven to the entire satisfaction of this Court that Dennis Porari ( referred to as ‘Dennis’ hereon) gave K50 to Elvis Katuho (referred to as ‘Elvis’ hereon) and K100.00 to Pauline Kesira (referred to as ‘Pauline’ hereon) at the relevant place and time as alleged.
  3. Evidence for the Petitioner on this question came from Elvis and Pauline. They each testified that they did receive those monies from Dennis at the relevant place and time. Elvis testified that he was given K50 by Dennis. Dennis told him to change it, get K20 and return K30 to himself for his flex card. Upon giving him the money, Dennis told him (Elvis) to vote for the First Respondent. He also testified that he did see Dennis give K100 to Pauline. During cross-examination, Elvis maintained his evidence throughout. He agreed with Mr Lai that he did not see the First Respondent give any money to Dennis to distribute but testified that Dennis did give him money and told him to vote for his candidate, Henry Amuli. His evidence was consistent with that of the other witness Pauline. There were a few inconsistencies in witness Elvis’ evidence however I agree with Mr Kipa that those inconsistencies are minor and were attributed to him being a villager coupled with the fact that it was his first time to appear and give evidence before the National Court.
  4. The second witness Pauline was an impressive witness. She testified that she was given K100 by Dennis who told her to vote for his candidate Henry Amuli. She testified that Dennis is her in law however in her lifetime he had never given her K100 before. That was the first time Dennis gave her a K100. She believed the K100 given to her came from the First Respondent because of the following reasons:
  5. Pauline also testified that after Dennis gave her K100 in the presence of her husband, he also gave a K50 to Elvis to change it and get K20 and return K30 to himself. She also witnessed Dennis telling Elvis to vote for the First Respondent when he gave him the money.
  6. Pauline and Elvis both testified that they were supporters of the Petitioner, however because of the money they received from Dennis and what he told them, they cast their 1st vote to the First Respondent, and their 2nd vote to the Petitioner.
  7. Evidence for the First Respondent on this question was given by Dennis himself. His affidavit evidence only consisted of denials wherein he denied most of the allegations. However, his affidavit lacked detail, particulars and or explanation on his part in relation to those allegations. I am not impressed with his affidavit evidence at all. In his oral evidence in Court, he admitted that he did give Pauline K100. However, he claimed he gave her the money on another date earlier sometime in June, and not July as claimed. He also denied that he gave any money to Elvis as alleged. He further denied that the money he gave to Pauline came from the First Respondent. He testified that it was his own money he gave to Pauline, and he gave her the K100 because she was his in-law and he was her children’s uncle. He further testified that he gave her that money because she asked for it. When it was put to him that he could not afford going around giving cash being a subsistence farmer himself, he blatantly denied this. He testified that he could afford it because he had a huge betelnut garden and some oil palm blocks that fetched a good amount of money. He portrayed himself to be someone with money.
  8. I have difficulty believing and accepting his evidence for two reasons; the first reason is that there was no evidence in his affidavit that he owned betelnut gardens and oil palm blocks, and that he was someone with good financial background. He only revealed that in the witness stand. The second reason I have difficulty in believing his evidence is that that piece of evidence about him owning betelnut gardens and oil palm blocks, was never put to either Elvis or Pauline during cross-examination. Because it has not been tested, such evidence is not credible. The rule in Brown v Dunn is clear on this point. For those reasons, I believe the recent invention was an attempt to remove the First Respondent as far away from the allegations as possible.
  9. Dennis agreed that it was his first time to give his in law Pauline K100. When asked why he gave her the money, he said he did not know the reason, but gave it because she herself asked for it. In a village setting, K100 is a lot of money. If Dennis is telling the truth, that Pauline asked him for a K100, then there should be a good reason for asking such an amount, and Dennis should at least provide an explanation as to why Pauline asked him for K100. To my mind, a person cannot just ask another person for K100 without providing any reason for it. Pauline in her evidence denied this. Her evidence is that Dennis called her and gave that money to her and told her to vote for the First Respondent. I therefore find it is quite difficult to accept Dennis evidence – that Pauline just asked him for K100, with no reasons provided, and he just gave it to her. It does not make any sense and to my mind, is illogical.
  10. All in all, I am not impressed with the evidence of Dennis. I agree with Mr Kipa, that this witness has a motive to lie, given that he was one of the campaign coordinators for the First Respondent. He has invented stories to place the First Respondent as far as possible from these allegations.
  11. Brendy Toare Kerohari is the First Respondent’s second witness. He generally maintained his demeaner and gave his evidence in English confidently. He is well educated and an agriculture officer. In his evidence he flatly denied that he was with John Siriri on 04 July 2022 and that they met with the First Respondent at the Sohe District Office. He denied that the First Respondent gave them cash in envelopes instructing them to give out the money to the voters. He testified that the First Respondent provided them vehicles to conveniently move around and campaign but denied that the First Respondent gave them any money to meet the cost of logistics during the campaign period. I find this last piece of evidence difficult to believe because it is a common fact that money is essential in election campaigns to meet the cost of logistics to cover the whole electorate during the campaign period. If the First Respondent did not give them any money to conduct his own campaign, then how did they conduct the First Respondent’s election campaign, and who met the cost for fuel and other expenses if the First Respondent did not? As a Campaign Co-ordinator for the First Respondent, this witness should know and provide satisfactory explanation. He failed to. Like the first witness Dennis, this witness in my view was attempting to distance and isolate the First Respondent as far away as possible from the allegations, so much so that his evidence could not be believed. Being a learned educated person and a lead campaign coordinator, Brendan should have explained clearly to the Court how the First Respondent provided financial support for his own campaign. Like Dennis, Brendan has a motive to lie because he was one of the campaign co-ordinators for the First Respondent.
  12. During cross-examination when it was put to Brenden that John Siriri did accompany the First Respondent and his witnesses for the trial of this matter before the trial commenced, Brendan initially flatly denied it. However when the same question was put to him again by Mr Kipa, Brendan admitted that John did accompany them to Court on one occasion. John Siriri is one of the Petitioner’s witnesses, but he turned hostile at trial and was declared as such. This inconsistency is important, as it tells me that Brendan is not a witness of truth. He is an educated person and clearly understood the questions but he gave two contradictory answers to the same question. I discuss this further when I discuss the evidence of John Siriri in the latter part of my judgment.
  13. Willie Kageni Pinga was the First Respondent’s third witness however his evidence is irrelevant because he did not witness any of these allegations. I do not need to discuss it.

FINDINGS


  1. Having weighed the competing evidence and submissions, I am satisfied that on 07 July at the relevant time and place, Dennis Porari gave K100 to Pauline and K50 to Elvis, and told each of them to vote his candidate Henry Amuli, the First Respondent.
  2. I make this finding for the following reasons:
  3. I am therefore satisfied that Dennis did give Elvis K50 and told him to change it, get K20 and return K30 to him for his flex. I am also satisfied that he told him to vote for Henry Amuli, the First Respondent.
  4. I am also satisfied that at the relevant place and time, Dennis also gave Pauline K100 and told her to vote for Henry Amuli, the First Respondent.
  5. The third element that needs to be satisfied is whether Dennis did this in order to induce Elvis and Pauline to endeavour to procure the return of the First Respondent at the 2022 NGE.
  6. I will answer in the affirmative because Elvis and Pauline’s evidence is that their candidate was the petitioner however because Dennis gave them money and told them to vote for the First Respondent, they complied and gave their 1st Preferential Vote to the First Respondent, and their 2nd to their candidate who is the Petitioner. Dennis’ actions (giving of money) and the words he spoke when giving them money (vote for the First Respondent) were done to lure and induce Elvis and Pauline to vote for the First Respondent, which they did.
  7. I am therefore satisfied that all three elements under s 103 (a) (iii) of the Criminal Code have been proven to the entire satisfaction of the Court.

WERE THESE OFFENCES COMMITTED BY DENNIS PORARI WITH THE KNOWLEDGE AND AUTHORITY OF THE FIRST RESPONDENT?


  1. If the answer to this is in the affirmative, then the requirements of s 215(3) of the Organic Law will be met.
  2. The Petitioner’s evidence to answer this question comes from John Siriri (referred to as ‘John’ herein).
  3. John was a witness for the Petitioner until he turned hostile on the date of trial. When called upon to give evidence, he identified his affidavit and it was tendered into evidence without any objection by the Respondents. Mr Lai asked John only one question during cross-examination, which was whether certain vital parts of his affidavit were true. He swiftly answered in the negative and stated that those evidence were not true. He further testified that he was forced and threatened by the Petitioner to give the evidence which was contained in his affidavit. I was somewhat surprised and shocked, to say the least, that he answered Mr Lai’s question without hesitance and even looking at his own affidavit to confirm which paragraphs Mr Lai was referring to.
  4. I am convinced that John was coached by the First Respondent and or his witnesses to deny his own affidavit evidence. I therefore refuse to accept his oral testimony given in Court for following reasons:
  5. His affidavit evidence, on the other hand, was an honest and truthful account of what he witnessed, and I accept it. It is detailed and gives a clear account of what he witnessed on 04 July, two days before polling.
  6. My findings are that on 04 July, John together with Dennis, Brendy and one Oida Daifo went into town on a PMV to meet with the First Respondent. John followed Dennis because they are related. Dennis’ father and John’s grandfather are brothers. They arrived at about 8am and went straight to see the First Respondent at Sohe District Office.
  7. After a while the First Respondent arrived. Denis was the campaign co-ordinator for Ward 9, Brendy was campaign co-ordinator for Ward 7 and Oida Daifo was the campaign co-ordinator for Ward 8. The First Respondent called them all into his office and gave each of the co-ordinators envelopes packed with cash money. He told them and I quote “em money blo ol voters, yupla kisim go na sharim lo ol voters” translated as “ this money belongs to the voters, take it and share it amongst the voters”. The First Respondent told them to go to Lucky Winner store in town and collect food items to distribute to the villagers. The First Respondent said “ol kaikai, yupla kisim na go putim stap na ol man vote pinis, yupla skelim na givim ol” translated as “take the food and keep them. Give the food out to the people after they vote”.
  8. After they met with the First Respondent, they went to the store as instructed and collected the food items. These food items included 10kg rice bags, cartons of Maggie Noodles, bread and frozen chicken, and bales of sugar. The First Respondent had already made arrangements with the store management for them to pick up the store goods. The goods were loaded onto a Toyota Land cruiser which was provided for by the First Respondent and they returned to the village. They arrived at around 5-6pm and distributed the food for each ward. Food items were dropped off at wards 9 and 10. The next day, Dennis sent his wife to give John a K100. John’s evidence is that because he got the money, he gave his first vote to the First Respondent.
  9. John’s evidence explains how and why Dennis had money on the 07 July to give to Elvis and Pauline. John’s evidence explains why he told them to vote for the First Respondent upon giving them the money. The monies that were given to Elvis and Pauline came from the First Respondent. It was not Dennis own money. Dennis did have money to give to Elvis and Pauline (John included) because on 04 July, the First Respondent gave Dennis and the other campaign coordinators money packed in envelopes with specific instructions to hand them out to the voters. The First Respondent’s intention was to lure the voters to vote for him. The First Respondent also bought food items for his voters and sent them with his campaign coordinators to distribute them. Basically the First Respondent gave his coordinators monies in envelope and bought food items, which were to be distributed to the voters. He provided them with transport to take them and the goods and envelopes of money to their various villages and wards to distribute to the voters.
  10. Dennis acted upon the First Respondent’s clear instructions. In other words, Dennis actions in giving money to Pauline and Elvis were made with the First Respondent’s full knowledge and authority. Dennis’ actions were accompanied by his words where he told each of them to vote for the First Respondent. Because of the money they received and based on what they were told, these eligible voters- Pauline and Elvis, John included- gave their 1st Preferential Vote to the First Respondent.
  11. I am satisfied that the requirements of s 215(3) of the Organic Law have been met.

GROUND 4 OF THE PETITION


  1. According to the Notice of Petition, the fourth allegation reads:
  2. From these set of facts, Ground 4 is pleaded in the following way:

WHETHER THE PETITIONER HAD PROVEN THE EXISTENCE OF ALL THREE ELEMENTS OF BRIBERY TO THE ENTIRE SATSIFACTION OF THE COURT


  1. As mentioned earlier, the first two elements run together. The issue is whether the Petitioner has proven to the entire satisfaction of this Court that Dennis gave K20 to Graham Ita (herein referred to as ‘Graham’) at the at the relevant place, date and time as alleged.
  2. Evidence for the Petitioner came from Graham and Cecil Pengita (herein referred to as ‘Cecil’). Graham testified that on 06 July between 7:00pm and 8:00pm, he walked to Cecil’s house to buy smoke. When he stood there, Dennis was there and gave Cecil K50 and bought sugar and 3 in 1 coffee. When Dennis saw Graham he told him to go over to him and he gave him a K20 from the change he received from Cecil and told him to buy smoke. Graham walked over, accepted the money and bought smoke. Dennis then left and as he was leaving he walked past Graham and said these words ”son kaikai na tingim candidate blo me Henry Amuli” translated as “ son, eat and think of my candidate Henry Amuli”. Graham was not planning to vote the First Respondent because he was the supporter of another candidate; but because of the K20 he received from Dennis and the words spoken to him by Dennis, he gave his 1st Preferential Vote to the First Respondent.
  3. Cecil’s evidence basically corroborated that of Graham’s. At the material time Dennis went to his market table and gave him K50. He bought sugar and 3 in 1 coffee packet. He gave Dennis his change and saw Dennis give Graham K20. Cecil testified that there were some boys around the area including Dennis’ wife who witnessed what happened. However, in his evidence- both written and oral- he did not mention whether he heard Dennis say anything to Graham. Apart from that, the rest of his evidence generally corroborate Graham’s evidence.
  4. Evidence for the First Respondent came from Dennis himself. He flatly denied this allegation. He maintained that he never gave Graham K20 at that relevant time as alleged. However, as mentioned earlier, I was not impressed with Dennis’s evidence- both oral and written. His evidence lacks corroboration, explanation and further detail as it is very brief.
  5. When weighing the evidence on both sides on the balance, the Petitioner’s evidence has more weight as it is corroborated. Dennis has a strong motive to lie because of his connection to the First Respondent as one of his campaign coordinators. I therefore reject Dennis’ evidence. I believe that he did give Graham K20 and told him to vote for the First Respondent.
  6. Mr Lai for the First Respondent submitted strongly that Graham was lying and should not be believed because of the fact that Cecil did not mention anything in his evidence about Dennis telling Graham to vote for the First Respondent. His submission as I understood it was that, because Cecil did not hear those words being spoken by Dennis to Graham, Graham made it up and was lying. The effect of this inconsistency is that Graham was lying and their evidence should not be believed.
  7. Although this line of submission sounds sensible, I will reject it because the First Respondent, in my view, failed to go a step further to rule out other possibilities that may have given rise to this inconsistency such as a possibility that Cecil may have hearing difficulties; or what the tone of Dennis voice was when he uttered those words to Graham, and what the distance was between Cecil, Graham and Dennis when those words were uttered to Graham. I therefore cannot accept Mr Lai’s submission. I cannot make a finding that Cecil and Graham’s evidence is inconsistent. I therefore accept Graham and Cecil’s evidence as it is. Their evidence is corroborated to a large extent and has generally remained intact throughout cross-examination. Any inconsistencies during their oral examination were minor and mostly attributed to the fact that they are villagers and it was their first experience to appear at a trial and give oral testimony before the National Court.
  8. I am therefore satisfied that at the relevant place and time, Dennis gave Graham K20 and told him to vote for his candidate, Henry Amuli, the First Respondent.
  9. The third element that must be satisfied is whether Dennis actions and words towards Graham were committed to induce Graham to endeavour to procure the return of the First Respondent at the 2022 NGE.
  10. Having accepted the evidence of the Petitioner’s witnesses particularly Graham and Cecil, I am satisfied that Dennis actions and words were calculated. He did what he did and said what he said (to Graham) to induce him to procure the return of the First Respondent. Graham testified that he was in favor of another candidate but because Dennis gave him K20 and told him to vote for the First Respondent, he gave his 1st Preferential Vote to the First Respondent. His 2nd Preferential Vote was given to his candidate. Thus, Dennis’ action (giving of money) and his words (eat and vote for the First Respondent) were done to lure and induce Graham to vote for the First Respondent.
  11. All in all, I am satisfied that all three elements under s 103 (a) (iii) of the Criminal Code have been proven to the entire satisfaction of the Court.

WAS THIS OFFENCE COMMITTED BY DENNIS PORARI WITH THE KNOWLEDGE AND AUTHORITY OF THE FIRST RESPONDENT?


  1. If the answer to this is in the affirmative, then the requirements of s 215(3) of the Organic Law would have been met.
  2. The relevant evidence comes from John. Earlier in this judgment, I made findings that the First Respondent gave Dennis and his colleagues Brendy and Oida Daifo, an envelope each which contained hard cash. He told them that the money belonged to the voters, and they were to hand them out. He also bought food items for the people and instructed his campaign coordinators to pick them up from the store, take to the village and distribute them. He provided transportation for them as well. All these actions were done to induce and lure the voters to vote for the First Respondent. In other words, the First Respondent used his campaign coordinators such as Dennis to buy the voters votes. Elvis, Pauline and Graham testified that because of the money they received from Dennis and what he told them, they gave their 1st Preference Votes to the First Respondent.
  3. Dennis did not act in isolation. He was distributing the First Respondent’s money to the voters based on his instructions. In other words, the First Respondent was fully aware of what Dennis was doing with the money he had given him. The First Respondent authorized Dennis and the other coordinators to give out money to the voters. Dennis actions were not committed in isolation- the First Respondent had full knowledge of what Dennis and his two colleagues were doing. He authorized it on 04 July when he gave each of them envelopes filled with cash and instructed or authorized them to give the monies out to the voters. When Dennis gave money to the Petitioner’s witnesses, he consistently told each of them to vote for his candidate, the First Respondent. Therefore, I am entirely satisfied that the First Respondent had full knowledge of what Dennis was doing after he saw them on 04 July. This is because he himself authorized Dennis and his colleagues to distribute those monies he handed to them in envelopes on 04 July.
  4. On the fourth ground, I am also satisfied that the requirements of s 215(3) of the Organic Law have been met.

CONCLUSION


  1. From the findings made, it can be reasonably inferred that the First Respondent gave money to his campaign coordinators with specific instruction and or authorization to give the money out to the voters.
  2. It can be reasonably inferred that more people were victims of this illegal practice because the Petitioner’s witnesses testified that a lot of money was going around in their village at that time. There were people drinking everywhere and calling out “Pangu Save Lot Rot”. Given the fact that the First Respondent was a Pangu Party candidate, these witnesses testified that they reasonably believed that the First Respondent financially sponsored all the drinking and circulation or “flowing” of money in the village during the campaign period leading up to the polling dates.
  3. It can be reasonably inferred that because of these illegal practices committed by the First Respondent through his election coordinators in the likes of Dennis, eligible voters were lured and induced to vote for the First Respondent, which resulted in his election win in the 2022 NGE.
  4. To conclude, I am satisfied that the elements of the offence of bribery as pleaded under Grounds 3 and 4 of the Petition, have been satisfied to the entire satisfaction of the Court. The Petition is therefore upheld in part.

FORMAL ORDERS


  1. My Formal Orders are:
    1. It is hereby declared that Grounds 3 & 4 of the petition are upheld under s 212 (1)(i) of the Organic Law on National and Local-level Government Elections.
    2. It is declared that the First Respondent who was returned as the elected member for Sohe Open Electorate was not duly elected pursuant to Section 212 (f) of the Organic Law on National and Local-level Government Elections.
    3. It is declared that the election of the First Respondent for the Sohe Open Electorate declared on 05 August 2022 in the 2022 National General Elections is absolutely void pursuant to Section 212 (h) of the Organic Law on National and Local-level Government Elections.
    4. The Second Respondent is hereby ordered to conduct a by-election for the Sohe Open Electorate forthwith pursuant to Section 212(3) of the Organic Law on National and Local-level Government Elections.
    5. The First Respondent shall, subject to any specific order for costs made during the course of the proceedings, pay the Petitioner’s costs of this Election Petition.
    6. The Registrar shall forthwith refund to the Petitioner the Security for Costs deposited under Section 209 of the Organic Law on National and Local-level Government Elections.
    7. The Registrar shall under Section 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this Order.
    8. The file is closed forthwith.

Judgment accordingly.

_____________________________________________________________
Wang Dee Lawyers: Lawyers for the Petitioner
B.S.Lai Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent

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