N10368
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 35 OF 2022

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

PARU AIHI
Petitioner

V

PETER NAMEA ISOAIMO
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Berrigan J
2023: 14th, 15th, 16th, 24th March & 29th June

ELECTION PETITION – BRIBERY – Sections 103(a)(i), (a)(iii), and 103(d) of the Criminal Code – Elements of Offences - Section 215(1) and (3)(a) of the Organic Law on National and Local-level Government Elections – By person other than the successful candidate but with their knowledge or authority – By candidate pursuant to s 7 of the Criminal Code.
The Petitioner challenged the return of the First Respondent on four grounds of alleged bribery. Allegation No 1 alleged that the First Respondent released K30,000 from the Kairuku Hiri Covid 19 Trust Account to the personal bank account of one Andrew Efi for distribution to two other men in Inauaia Village with the purpose of inducing them and others to vote for the First Respondent.  Allegation No 2 alleged that the First Respondent gave a dinghy and outboard motor to Marcel Makuri, a longstanding campaign manager for the First Respondent, with the intention of inducing Marcel and other electors in Delena Village to vote for him.  Allegation No 3 was withdrawn. Allegation No 4 alleged that the First Respondent gave two men, Francis Naime Ovia and Imura Nadile, K100 each in cash at Agevairu Station along the Hiritano Highway and told them to vote for him.    
Held: 

(1)	On Allegation No 1, the evidence failed to establish that the First Respondent caused K30,000 to be released to Andrew Efi for the purpose of inducing others to vote for him. 

(2)	On Allegation No 4, the evidence failed to establish that the First Respondent gave any money to or told Francis Naime Ovia and Imura Nadile to vote for him.

(3)	On Allegation No 2, the evidence established that Marcel Makuri committed the offence of bribery, contrary to s 103(a)(iii) of the Criminal Code; and that this was done with the knowledge and authority of the First Respondent for the purpose of s 215(1) and 3(a) of the Organic Law; and that the First Respondent is deemed to have committed the offence, having done an act for the purpose of aiding Marcel Makuri to commit the offence pursuant to s 7(b) of the Criminal Code, and aided Marcel Makuri to commit the offence pursuant to s 7(c) of the Criminal Code.

(4)	Accordingly, the election of the First Respondent at the 2022 National General Election is declared void.

Cases Cited

Aihi v Isoimo, Objection to Competency (2022) N10158
Neville v Wesley (2023) N10227 
Powi v Kaku (2022) SC2290
Sahale v Karogo (2021) SC2129
Leonard v Wesley (2014) N6552
Neville Bourne v Manasseh Voeto [1977] PNGLR 298
Peter Waranaka v Gabriel Dusava (2009) SC980
Aide Ganasi v Sali Subam (2013) SC1277
Leonard v Wesley (2014) N6552
Waranaka v Dusava (2009) SC980
Wenge v Naru (2012) N5123
Palme v Mel (1989) N808
Kaiabe v Makiba (1989) N723
Banaso v The State (2022) SC2302
Imiyo Wamela v The State [1982] PNGLR 269
Aihi v Isoaimo, Objection to Competency (2023) N10158 at [49]
Fairweather v Singirok (2013) SC1293
Talita v Ipatas (2016) SC1603
Simeon Kibeto v Saki Hacky Soloma (2023) N10173

References Cited

Sections 212, 215 and 217 of the Organic Law on National and Local Level Government Elections (the Organic Law)
Sections 7, 103 of the Criminal Code

Counsel

D Kipa, for the Petitioner
T Kamuta, for the First Respondent
M Ninkama, for the Second Respondent

29th June, 2023 

1.	BERRIGAN J: This is a decision following trial on the allegations made in a petition filed by the Petitioner and unsuccessful candidate, Paru Aihi, disputing the election of the First Respondent, Peter Namea Isoaimo, as the successful candidate for the Kairuku Open Electorate in the 2022 National General Election (NGE). 

2.	The Petitioner seeks declarations that the First Respondent was not duly elected and that his election is void, pursuant to s 212(f) and 212(h) of the Organic Law on National and Local Level Government Elections (the Organic Law), respectively, and an order that the Electoral Commission, the Second Respondent, conduct a by-election pursuant to s 212(3) of the Organic Law.  

3.	Objection to the competency of the petition was dismissed: Aihi v Isoaimo, Objection to Competency (2022) N10158.

GROUNDS OF THE PETITION 

4.	The petition filed on 7 September 2022 contains four grounds, all of alleged bribery:

1.	Allegation No. 1 - Bribery at Inauaia Village, Ward 5 Meko LLG Area, Kairuku District, Central Province.

2.	Allegation No. 2 – Bribery at Delena Village, Kairuku LLG Area, Central Province.

3.	Allegation No. 3 – Attempted Bribery at Aipeana Village, Mekeo LLG Areas, Central Province.

4.	Allegation No. 4 – Bribery at Hisiu Village, Ward 6, Mekeo LLG Area, Central Province.

5.	Allegation No. 3 has since been abandoned.

UNDISPUTED FACTS

6.	According to the Statement of Agreed and Disputed Facts the following facts are not in dispute.

7.	The Petitioner and the First Respondent were candidates who, with 32 other candidates, contested the Kairuku Open Electorate in the National General Elections (NGE) conducted between 12 May 2022 and 30 July 2022.

8.	The conduct of the NGE was the lawful responsibility of the Second Respondent under the Organic Law on National and Local Level Government Elections, and its servants and employees organised and conducted it. 

9.	On 12 May 2022, 118 Writs for the 2022 NGE were issued by the Governor General including that of Kairuku Open Electorate.  Polling began on 2 July and ended on 22 July 2022.

10.	On 19 May 2022 the Petitioner nominated to contest the Kairuku Open Electorate which comprises three Local Level Governments (LLG) – Kuni, Mekeo, and Kairuku.

11.	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 choice.

12.	The First Respondent was declared the winner by District Returning Officer Henry Oa on 30 July 2022 at the Papua New Guinea Defence Force Gym in Murray Barracks, Port Moresby, National Capital District (NCD).

13.	The First Respondent at the time of the declaration polled 10,594 votes (53.73%) beyond the absolute majority of 9,860 votes. The Petitioner polled 9,124 votes (46.27%) at the 32nd (final elimination) of candidates. Allen Aoka, and was the runner up.  The vote difference between the First Respondent and the Petitioner was 1,470.  The total ballots (votes) cast was 34,015 for the electorate.

ALLEGATION No. 1  

14.	It is alleged that:

On 20th May 2022 at about 7:00pm, Andrew Efi of Inauaia village gave Paul Keamau Mapai and Peter Elo K1, 000.00 each to vote for the First Respondent.  He also promised to make further payments to them. 

Andrew Efi, Paul Keamau Mapai and Peter Elko were all electors from the Inauaia village, Ward 5 of the electorate.

Andrew Efi was the village campaign coordinator for the First Respondent at the material time and since 2017.  The First Respondent had financially assisted Andrew Efi purchased a brand new Hyundai H65 PMV truck named “Maams Em Jay” for his support in the 2017 NGE.

The First Respondent had also between May and June 2022 authorized a K30, 000.00 cheque from the Kairuku/Hiri Covid 19 Trust Account deposited into Andrew Efi’s personal Bank Account with Kina Bank or Bank South Pacific to use for bribing and including electors from the village to vote for the First Respondent…

The First Respondent had or ought to know of Andrew Efi’s action because he was his campaign coordinator and have funded him in the past.  The actions of Andrew Efi were promoted and approved by the First Respondent under the circumstances.

Distributing money to both men by Andrew Efi on behalf of the First Respondent was to procure their votes at the election for the First Respondent, and in order to induce the two electors to endeavour to return the First Respondent at the election.  This act was contrary to Section 103 (a)(i) and (iii) and Section 103 (d) of the Criminal Code and Section 215 (1) of the Organic Law on National and Local Level Governments Elections (OLNLLGE).

15.	Pursuant to the Statement of Agreed and Disputed Facts, it is agreed that Andrew Efi, Paul Keana Mapai and Peter Inapi Eko are financial members of Inauaia Reform Farmers (IRF) and that Andrew Efi was its chairman. Inauaia Reform Farmers is a business name registered with the Registrar of Companies in 2017 and holds a bank account with BSP.   By letter dated 17 January 2017 IRF requested funding from the First Respondent as the Member for then Kairuku Hiri Open (now Kairuku Open). After numerous enquiries, on or about 3 May 2022 the Office of the Member for Kairuku, Hon Peter Isoaimo, raised a cheque to IRF in the sum of K30,000 from the Kairuku Hiri Covid 19 Trust Account.  On 20 May Andrew Efi gave K1000 each to Peter Inapi Eko and Paul Keama Mapai. Andrew Efi voted for the First Respondent while Mr Eko and Mr Mapai did not.

16.	It has been said in a number of cases that acts of bribery committed by a prospective candidate prior to the issuance of writs cannot constitute bribery for the purposes of s 215 of the Organic Law because the person is not a candidate at that time. Per Cannings J in Neville v Wesley (2023) N10227 at page 19:

“The respondents argue that the First Respondent was not a candidate at that time as the writ for the election was not issued until April 2022. This is a sound argument. Section 215 of the Organic Law provides grounds for invalidating an election when illegal practices including bribery are committed by or with the knowledge or authority of a candidate. The First Respondent might well have committed the criminal offence of bribery on 6 November 2021 but even if that is proven, it cannot invalidate the election. Section 215 does not provide for it, as he was not a candidate at that time.

Mr Jerewai, for the Petitioner, submitted that that was a restrictive and narrow interpretation of s 215, which should not be condoned by the court. It would allow prospective candidates to subvert the electoral process by engaging in mass bribery on a large scale and they could do so with impunity as long as they stopped doing it before they nominated for the election. I appreciate that argument. It is not entirely meritless. But it does not reflect the law as it stands now. The preponderance of judicial authority supports the respondents’ argument on s 215: see the National Court decisions of Bredmeyer J in Ebu v Evara [1983] PNGLR 201, Cannings J in Singirok v Fairweather (2014) N5577 and Kandakasi J in Waranaka v Maru (2018) N7346 and the opinion of Kandakasi DCJ in the Supreme Court in Hagahuno v Tuke (2020) SC2018.”

17.	In my view, however, these cases must be distinguished from those where a prospective candidate advances property or other benefit to another person prior to the issuance of the writs with the intention that it be applied for any of the purposes in s 103(a)(i) or (iii) of the Criminal Code during the campaign period.  If it is so applied then the candidate’s conduct would be captured under s 215(1) read together with s 215(3) of the Organic Law, and by s 7(1)(b), (c) or (d) of the Criminal Code. 

18.	It would be captured under s 215(1) and 215(3)(a) of the Organic Law because the offence of bribery would be committed at a time following the issuance of the writs, and at a time when the person was a candidate, and with their knowledge or authority for the purpose of s 215(3), regardless of the fact that knowledge was obtained, or authority given, earlier in time. 

19.	Similarly, the candidate would be deemed to have committed the offence at the time it was committed by the person who did the act constituting the offence, pursuant to s 7 of the Criminal Code because he aided, counselled or procured it, regardless of the fact that the aiding, counselling or procuring took place prior to the issuance of the writs. 

20.	If a candidate wishes to withdraw their involvement in the commission of the offence they must communicate that fact to the perpetrator and take action to undo the effect of the previous aiding, counselling or procuring for the purpose of avoiding liability under s 7: see Imiyo Wamela v The State [1982] PNGLR 269. 

21.	It follows to my mind, that to avoid liability under s 215 of the Organic Law, a candidate must take steps to undo the authority previously given.  Moreover, given that s 215 only requires “knowledge or authority”, once a candidate obtains knowledge that an offence is intended, it is my view they must take steps to stop it if they wish to avoid liability, even if they did not authorise it in the first place.

22.	Returning to the present allegation, it is a serious one. It alleges not only bribery but the use of a substantial sum of State monies from DSIP funds for that purpose.  

23.	In those circumstances I would have expected the First Respondent to put on better evidence as to the date and circumstances when funding for IRF was approved, including copies of the DSIP meeting minutes or the materials deliberated upon.  

24.	Having said that the evidence does not support the allegation that the First Respondent gave a cheque for K30,000 to Andrew Efi with the intention, of causing Mr Efi to vote for him, or of causing Mr Efi to procure others to do so. 

25.	On the evidence of the Petitioner’s own witnesses, following his election in 2014, the First Respondent told Mr Efi and his group to formally register an association with the IPA so that he could fund them from the DSIP to establish farming, poultry and piggery in the village. The IRF was not registered until January 2017. On 17 January 2017 Andrew Efi wrote on behalf of the IRF seeking K100,000 business capital.  Mr Eko and Mr Mapai say that following the election in 2017 the First Respondent told the group to submit a proposal, following which a proposal was prepared by Bona Venture Renagi, a member of the group, and submitted in 2018.  It is agreed that Andrew Efi continued to follow up with the First Respondent’s office about the proposal. 

26.	Sometime during 2021, Andrew Efi told the members of IRF that they needed to open a bank account, as the First Respondent had said he would fund the project. At some point after that the project was approved and a bank account was opened – it appears in early 2021.  

27.	Sometime between March and April 2022 Andrew Efi asked Mr Mapai to collect money to pay staff at the Treasury office to “fast track” the processing of the IRF’s cheque.  K450 was paid to Victor Mega, a staff member, for this purpose in the car park of Kina Bank, Waigani.  Mr Mega told Mr Efi and Mr Mapai to wait for further advice.  Thereafter, whenever Mr Mapai asked Mr Efi what was happening, Mr Efi told him that he would tell him when he received the cheque.  Eventually, Mr Mapai called Mr Mega himself sometime towards the end of April.  Mr Mega told him that Mr Efi had already collected the cheque but had returned it because the bank account had been closed by the bank after it lay dormant for a year.  

28.	The account was reactivated during the first week of May 2022 and a cheque drawn on the Kairuku Hiri Trust Account was deposited to IRF’s account. Mr Efi did not tell Mr Mapai that the cheque had been cleared into the account. Mr Mapai became suspicious for various reasons and went to see him with Mr Eko at Mr Ikufi’s house. Mr Efi gave each of them K1000.  Mr Efi told them that he would give them the rest when they voted for the First Respondent.  Two or three weeks later in May, Mr Mapai, Mr Eko and Mr Ikufi went to see Mr Efi after hearing he was on a drinking spree because they were worried he would use up their money.   He told them that he would give the rest of the money to them when they voted for the First Respondent. There was an altercation and they left.  They never received the balance of the money.  Mr Efi never established a farming project.  He was seen drinking a lot. He did not share the money with the witnesses and they assumed that he used it himself. They were unhappy and decided to vote for another candidate, Allen Aoka, instead.  

29.	The First Respondent’s evidence was quite straightforward.  He recalled receiving a letter requesting funds some ten months prior to the issue of writs, that is sometime in 2021.  That date does not correspond with the other evidence but it may be that he is thinking of the date the project was approved. That would be consistent with the evidence of the Petitioner’s witnesses. He was unable to say when the cheque was released.  Once approval is given by the DDA, the cheque is released by the District Treasury Office, under the Finance Department. 

30.	The evidence of Mr Mapai and Mr Eko was in some respects contradictory.  On one hand they say that the monies were for farming and they put in a submission for this purpose. On the other hand they say the monies were to be shared amongst the members of IRF at K5000 each so that they would continue to support the First Respondent, and further, that the monies were actually for distribution to others as part of campaigning for the First Respondent. 

31.	As for Mr Efi he was a most unimpressive witness.  It is very surprising that Counsel for the Electoral Commission suggested otherwise.  Not even the First Respondent’s counsel suggested as much, only that there had been no improper conduct on the part of the First Respondent.  

32.	Mr Efi’s demeanour was poor and he failed to answer questions directly or at all on several occasions.  When he was asked about what happened to the K23,000 balance of the funds he asked whether he was in court for misappropriation or bribery, then said that he could not say what happened to the monies, and then fell silent. It appears to me that he had good grounds for effectively claiming the privilege against self-incrimination.

33.	Of course, the fact that Mr Efi appears to have used the funds for his own purposes does not of itself exclude the possibility that the monies were given by the First Respondent with the intention that they be used to cause or induce him or others to vote for him. But the evidence does not support that conclusion.

34.	In summary, the evidence establishes that the First Respondent had suggested much earlier, sometime in 2014 and again in 2017, that the group seek funding to establish farming in the village.  A group was subsequently registered but no funding was approved until after a formal submission was approved, sometime in early 2021.  On the evidence it appears that the delay associated with the release of the cheque in March or April 2022 was down to the District Treasury Office, and then because the bank account had lapsed and a new one had to be opened.  Whilst Mr Efi might have told Mapai and Eko that he would give them the rest of the money when they voted for the First Respondent, all but K3000 of the monies were used by Mr Efi for his own use, and he did not share the monies with anyone else. The evidence fails to establish that the First Respondent knew of, or authorised, any such statements.  The totality of the circumstances are not consistent with an attempt on the part of the First Respondent to bribe Andrew Efi or other members of the IRF, or to cause them to use the monies to bribe others to secure his election. 

35.	The ground fails.

36.	Mr Efi’s conduct, however, should be investigated by police.  There appears to have been an abuse of State monies by him. 

37.	Similarly, Mr Magi, who took money to facilitate the processing of the cheque, might also find himself facing official corruption charges. 

ALLEGATION No 4 

38.	I will deal next with Allegation No 4.

39.	It is alleged that:

On 30 June 2022 (as amended) at between 9:00pm and 10:00pm Francis Naime Ovia and Imura Nadile both  electors from Hisiu village, Ward 6, Mekeo LLG, Kairuku, Central Province were standing on the road side at the Agevairu Station along Hiritano Highway when a black Landcruiser Station Wagon pulled up beside them.

The First Respondent sitting on the offside winded his glass down and the two men recognized him and walked towards.  The First Respondent pulled out silver pistol, loaded magazine bullets in their face and said “you agevairu boys pulled down my election banner that was hung across the road?” The two men got scared.

The two men responded they did not know who pulled it down as it could be anybody since it was campaign period and many candidates and their supporters frequented the road and some could have sat on the canopy of a PMV truck and pulled it down.  He apologized and gave them a K100 note each and asked them to vote for him and left.

On polling day they both voted for the First Respondent because of the money given to them…

Distributing money to both men by the First Respondent was to procure their votes at the election for him and in order to induce the two electors to endeavour to return the First Respondent at the election.  This act was contrary to Section 103 (a)(i) and (iii) and Section 103 (d) of the Criminal Code and Section 215 (1) of the OLNLLGE.

40.	It is agreed that Francis Naime Ovia, 42 years of age, and Imura Nadile, 29, are both from Hisiu Village, Ward 6, Mekeo LLG, Kairuku, Central Province.  Francis Naime Ovia is a registered elector of Hisiu Village, Ward 6. Polling occurred on the 5th of July 2022 in Hisiu Village.

41.	The evidence of Francis Ovia and Imura Nadile is essentially the same. They say that they went fishing at about 3 pm. After finishing at about 6 pm, they rode home on their bicycles via Agevairu Station where there were some other boys from the village selling their fish, so they stopped and stayed there telling stories and passing time.  There is no dispute that Agevairu Station is on the Hiritano Highway and comprises a fuel station, a kai bar, and a night market. 

42.	Francis and Imura say that between 830 and 900 pm, whilst they were standing on the road, the First Respondent’s vehicle pulled up next to them.  The First Respondent, who was on the passenger side, wound down his window. They recognised him and approached the vehicle. The First Respondent pulled out a silver pistol and loaded its magazine with bullets in front of them. He said “you Agevairu boys pulled down my election banner that was hung across the road”. They were afraid and stepped back.  Nadile told him that they did not know who pulled the banner down, and that since it was the campaign period and many candidates and their supporters were sitting on the canopy of PMV trucks anyone could have pulled it down.  The First Respondent apologised and gave each of them a K100 note and told them “give me one vote”. They thanked him, gave him a string of fish and the First Respondent drove off.  Francis and Imura then rode their bicycles home.  

43.	It is not in dispute that there was an interaction between Francis and Imura and the First Respondent that night. The First Respondent says that he conducted a rally at Martin River and then another one at Gabadi River.  After the rally concluded at about 9 pm he was driving home with a convoy of ten vehicles or more when they stopped at Agevairu Station to buy coffee.  His brother, Terry Robert Isoaimo, was driving his vehicle. He was in the passenger seat. Joseph Fanou and Andy Rocks Manifa were seated behind him, and his two children were in the back.  He says that when they stopped, two people emerged from the darkness, they were drunk, and they came around to the driver’s seat because he normally drives himself but he was tired so his brother drove. They asked for money to buy alcohol but he told them that he cannot give them even K5 because of the election rules that apply.  So, they left him and went towards the back of the entourage asking for beer. He did not know what happened. For all of the eight years he has been stopping there drug addicts and rif raf harass him for money. After his handsman returned with his coffee they took off.  In total they remained there for ten or fifteen minutes. He denied absolutely that he pulled out his pistol.  He would not be that silly.  His brother did not give evidence but Joseph Fanau gave evidence which was consistent with the First Respondent. 

44.	In response to my questions, the First Respondent confirmed that after the men came to the vehicle looking for money he did ask them who removed the banner.  It was not clear why he was able to recall this night in particular given that he was harassed on every occasion he stopped at the station, which was very often as he stopped there almost daily as he travelled between his office in Bereina and his home. Perhaps it was because of the interaction surrounding the banner.

45.	There are however, several inconsistencies in the Petitioner’s case that concern me. The evidence given by Francis and Imura at trial is inconsistent with the joint statement they made on 7 September 2022 to the Petitioner in several key respects.

46.	In that joint statement they said that “he gave us a K100 note and told us to give him No 1 vote”, and  that “Because of that we voted 1 for him”. 

47.	In their affidavits and in oral evidence they said that the First Respondent gave them K100 each.  

48.	In his affidavit of 18 October 2022 Imura Nadile said that his name was not on the common roll. In oral evidence he confirmed that he did not vote at all.  In his affidavit Francis Naime Ovia said that he gave the First Respondent his second vote, not his first.  

49.	In addition, their evidence lacked detail. They say they were with other boys selling fish and telling stories for at least three hours after they finished fishing. But they did not explain why they were standing together on the side of the road at the time the First Respondent’s vehicle approached. They did not explain where their bikes were at the time.  They both said that they walked up to the vehicle. Francis did not say either in his affidavit or in oral evidence what happened after the First Respondent gave them K100. Imura said that they walked up to the vehicle and then immediately rode home on their bikes.   

50.	In addition, Richard Ovia, 68 years old, a clan chief, of Hisiu Village, struck me as an honest witness.  He gave evidence that Francis is related to the Petitioner.  On polling day he saw him gathered with other supporters of the Petitioner.  It seems odd therefore that given his relationship with the Petitioner that Francis Naime waited until 7 September 2022 to inform him about what had happened, particularly given the history between the two politicians.  Mr Ovia also has a market at Agevairu and markets until late. He knows Francis well and he has seen him often harassing people for money at the station when he is drunk.  

51.	It is also a relevant consideration that Agevairu Station is a stronghold of support for the Petitioner.  It does seem very odd to me that given the long history of the Petitioner and the First Respondent, including that they were both very strong candidates for the seat, having each held it a number of times previously, and given that the First Respondent successfully petitioned against the Petitioner for bribery in the 2012 election, that the First Respondent would bribe two men, at a busy market, in front of potentially many witnesses, in the Petitioner’s stronghold.   

52.	In all the circumstances I cannot be entirely satisfied that the alleged events took place and the ground fails.

ALLEGATION No. 2 

53.	The petition alleges that:

On 13th June 2022 during the campaign period Marcel Makuri returned to Delena village with Ume Luke (skipper), Josiah Ume, Andrew Marcel, Gima Luke and Morea Gima with a dinghy and a 40 hp Yamaha outboard motor engine the First Respondent purchased.

At about 8:30pm that night, the named persons arrived at the village with the items to a rousing welcome from the villagers who gathered in the night to witness it.  Kila Ume and Ali Midian who were both electors from the village were present that night with a group of less than 100 villagers to witness the event. 

Marcel Makuri and his travelling group informed the villagers that the new dinghy and the motor was given by the First Respondent.

Marcel Makuri was First Respondent’s campaign chairman in Delena village.  He was an elector of the village.  Because of him receiving the boat, he voted for the First Respondent. 

The release of the dinghies and 40 hp Yamaha outboard motor engine were to induce and procure votes from the electors in the village to vote for the First Respondent and to return him as the winning candidate for the electorate at the election… 

As a consequence the village electors voted for the First Respondent and returned him at the election.   

These actions by the First Respondent was contrary to Section 103 (a)(i) and (iii) and Section 103 (d) of the Criminal Code and Section 215 (1) of the OLNLLGE.

54.	It is not in dispute pursuant to the Statement of Agreed and Disputed Facts that Marcel Makuri, Margaret Wani, Kila Ume, Ali Midian and Arthur Turner are all electors from Delena Village, Ward 10, Kairuku LLG area, Kairuku District Electorate, Central Province in the 2022 NGE for the Kairuku Open Electorate. Polling (voting) in Delena village, Ward 10 occurred on 4th July 2022.

55.	Marcel Makuri and his wife Margaret Wani were campaign coordinators and staunch supporters of the First Respondent and voted for him in the 2014 By-Election and the 2012, 2017 and 2022 NGE.

56.	Marcel Makuri and his wife, Margaret Wani, collected a Yamaha 23ft fibreglass boat and a Yamaha 40 horsepower outboard motor on 8 April 2022 from Ela Motors, which was purchased by the National Fisheries Authority (NFA) at the request of the First Respondent.

57.	The First Respondent selected Marcel Makuri and his wife Margaret Wani to be given the new boat and motor because they were his staunch supporters. 

58.	On 13 June 2022, during the campaign period, Marcel Makuri travelled by sea to Delena village with Ume Luke (skipper), Josiah Ume, Andrew Marcel, Gima Luke and Morea Gima with the new boat and motor where he was met by relatives and villagers who gathered to welcome them home.

59.	Marcel Makuri now happily uses the new boat and motor for his fishing and other activities in and around Delena Village.

Petitioner’s Case

60.	Three witnesses were called by the Petitioner in support of the allegation, namely Kila Ume, Ali Midian and Arthur Turner. 

61.	Objection to them being called was raised, not by the First Respondent but by the Second Respondent, supported by the First Respondent, on the basis that there was no foundation in the pleading of Allegation No 2 for their evidence, which evidence constituted an amendment to the petition in that it created a new ground.  It was submitted that the allegation only concerned Marcel Makuri and the witnesses were not named in the petition and were not the person(s) alleged to have been bribed. Counsel relied on the decision of the Deputy Chief Justice in Powi v Kaku (2022) SC2290.

62.	The objection was refused. The purpose of pleadings is “to do justice between parties according to law” and to put the defendant on notice as to the claim to be met: see Sahale v Karogo (2021) SC2129 at [17] to [22] for a discussion of the relevant principles.  That is particularly so in election petition cases having regard to s 217 of the Organic Law. But it is not necessary to have recourse to those principles in this case, and Powi v Kaku is not applicable here.

63.	The evidence does not create a new ground in the petition. On its face Allegation No 2 alleges that the First Respondent released the boat with the intention of procuring the votes of Marcel and other electors in Delena Village, including Kila Ume and Ali Midian. 

64.	In addition, and for obvious reasons, evidence to be called in support of an allegation is not limited to that of the person allegedly bribed.  In some cases it may be alleged that they willingly accepted the bribe and they may be a reluctant or unreliable witness.  The fundamental point, however, is that evidence in any case - civil, criminal or election related - may be given by any competent witness who gives evidence of what they saw, heard or did that is relevant to the facts in issue. 

65.	Two of the three witnesses called by the Petitioner were in any event named in the petition in this case.  The evidence of all three witnesses was admissible and relevant to the issues for determination. The first and Second Respondents had been on notice since the affidavits were served several months ago, and the respondents failed to establish any prejudice to their defence at trial. The weight of the evidence was properly a matter for submission.

66.	Kila Ume, 43 years old, Village Court Magistrate, is a substance farmer in Delena Village and a registered voter of Delepou, Ward 10, Kairuku LLG. He belongs to the Marehau Isipana Clan of Delena Village, together with Marcel Makuri.  

67.	About one week before Marcel returned from Port Moresby with the dinghy, Marcel called a meeting of the Marehau Isipana Clan, which he attended at the platform of his big brother, Gima Luke. Six men and nine women attended. At the meeting Marcel informed the clan that the First Respondent had given a dinghy to the clan and that he was going to Port Moresby to meet him and collect it. They were happy because Marcel would bring the dinghy to the clan. 

68.	Marcel and his wife, Margaret Wani, are the campaign chairman and coordinators for the First Respondent in Delena Village and for the clan. His brother, Gima Luke, also supports the First Respondent. 

69.	On 13 June 2022 at about 830 pm, he was sitting on the platform near the beach when Marcel, Ume Luke, the skipper, Josiah Ume, Andrew Marcel, Gima Luke and Morea Gima, arrived in the dinghy. A big crowd of about 100 people gathered at the beach because word had got out that Marcel was bringing a new dinghy belonging to the Marehau Fishing Group given by the First Respondent. No such group existed but he was aware that Marcel was bringing the dinghy for the clan. 

70.	The adults in the dinghy were drunk. Marcel was hit with an ant nest as part of local custom and was thrown into the sea with the others who arrived with him. Kila went home after that. While the dinghy is said to belong to the clan, only Marcel and his immediate family have been using it. 

71.	In cross-examination he openly admitted that he did not know when the dinghy was bought but maintained that Marcel told them that the First Respondent would buy it for the clan.  Marcel did not mention the NFA. Marcel told them that the First Respondent bought the dinghy for the clan.  Some time after he brought the dinghy to the village his words changed and he said that it was for the Marehau Fishing Group but such a group does not exist. 

72.	Ali Midian, 46 years of age, a subsistence farmer of Delena Village, is also a registered voter of Delepou, Ward 10, Kairuku LLG. Marcel is his father’s first cousin but from a different clan. 

73.	On 13 June 2022 between 8 and 830 pm about 100 people gathered along the beach to receive Marcel Makuri, Ume Luke, Josiah Ume, Andrew Marcel, Gima Luke and Morea Guma, when they arrived at the village.  He and the other men mentioned all live in the village and survive mainly from fishing and subsistence farming.  The population of the village is about 500.  

74.	Before the men arrived, word had gone out that the First Respondent was supplying to Marcel and his clan, Marehau Isipana Clan, a new dinghy and outboard motor.  When they arrived the people were excited and joyful. As part of village custom the men threw an ant nest at Marcel and threw him into the sea with the rest of his team in welcome. Marcel now keeps the dinghy for his own use.  

75.	Marcel and his wife, Margaret Wani, were the First Respondent’s campaign chairman and coordinator in the 2022 NGE. He saw Marcel organise people to go to the First Respondent’s rallies. On 20 June 2022 the First Respondent conducted a rally at Delena Village organised by Marcel and his committees.  He did not go to the rally until after the speeches had been given but he saw the First Respondent, Marcel, and his wife there.

76.	Arthur Turner, 67 years old, formerly employed with the IRC, is now a subsistence farmer in Delena and the United Church Sir Percy Chatterton Congregation Secretary. He is also a registered voter of Delepou, Ward 10, Kairuku LLG. He belongs to the Marehau Awarina Clan of Delena Village. Marcel is from Marehau Isipana Clan. The two clans were once one but have since separated. 

77.	On 8 May 2022, just four days before the writs were issued, there was a Free Trade Zone meeting at Delena Village at which he was Master of Ceremony. Persons from other villages such as Pinupaka, Oroi and Ala Ala villages were also present. During the First Respondent’s presentation he announced that he will deliver a dinghy to the Marehau Fishing Group. There is no such fishing group in Delena. 

78.	On 20 June 2022 the First Respondent conducted a rally at Delena Village. During the rally, Margaret Wani, Marcel’s wife, also a campaign coordinator for the First Respondent, was the first speaker. She went on stage and gave a speech in support of the First Respondent. During her speech she publicly thanked him for giving them the dinghy and 40 horsepower Yamaha engine. She said, “I thank you, Honourable Member, for giving us, me and my husband, the dinghy. On behalf of Delena people we would like to thank you for the purchase. You will have the numbers during the voting.”  

79.	Mr Turner recalls the statement because he was surprised that she said the boat was for her and her husband when the First Respondent had said it was for the fishing group.

80.	Voting took place in Delena on 4 July 2022. 

81.	On 2 October 2022 he was sitting with Marcel and he asked him about the dinghy. Marcel said that “the member gave me the dinghy and motor but we used Marehau Fishing Group name to get it”. 

82.	In cross-examination, he said that he was not aware that the dinghy was bought by NFA. That was not mentioned by the First Respondent on 8 May. He agreed that the clan members were upset that Marcel was claiming to be the owner himself. He agreed that the First Respondent was not present when the dinghy was delivered to Delena but he announced that he would be giving it on 8 May and then Marcel’s wife thanked him on 20 June 2022.  

83.	He agreed that he is a strong supporter of the Petitioner, that the Petitioner’s wife is from Delena, and that Delena and other nearby villages are the Petitioner’s strong holds.  The number of voters in the common roll for the three villages is between about 2000 and 3000. The First Respondent only got 43 or 44 votes in the 2022 NGE but he got a lot of second and third preferences. 

First Respondent’s Case

84.	The First Respondent did not address the allegation in his affidavit but agreed certain matters in the Statement of Agreed and Disputed Facts, set out above. Having regard to the serious nature of the allegation, the matters which had been agreed, and s 217 of the Organic Law, the First Respondent was permitted to give evidence in examination-in-chief about the allegation, over objection.  The Petitioner was allowed but did not require additional time to prepare cross-examination.  

85.	It was the First Respondent’s evidence that Marcel Makuri has been a long-time campaigner and supporter of his since 2012 when he unsuccessfully contested the seat.  Between 2014 and 2015, Marcel’s family fishing group wrote to him as the Member for Kairuku Hiri requesting a fishing boat, engine and gear to sustain their livelihoods. It took a while because the development or economic sector funds that any one member is allocated are limited compared to the number of submissions that are made for assistance. An opportunity arose in April 2022. The National Fisheries Authority gave away some outboard motors as part of the Coastal Fisheries Program and Kairuku Hiri was a recipient.  A cheque was raised by the NFA directly to Ela Motors Waigani and Marcel and his fishing group were among one of those nominated to be recipients. They were sent to Ela Motors to see a Yamaha salesperson to collect the dinghy and motor. He remembered Marcel telling him that there was no stock available and he was told to wait. At what point in time Marcel took delivery of the boat he did not know. He did recall on one occasion Marcel asked him to buy zoom so that he could take the motor and dinghy from relatives in Pari Village to Delena Village which is in Kairuku District, Ward 10.  

86.	The First Respondent conducted a political rally at Delena Village on 20 June 2022. It was organised by all of his committee and supporters for Delena and the nearby villages. 

87.	In cross-examination the First Respondent said that Marcel had been his campaign chairman for at least two elections, one successful, one unsuccessful. There was a written request and Marcel kept following up with the electoral office or whenever he saw him.  He received a call from then Minister for Fisheries, Dr Lino Tom, saying that Kairuku District was selected to receive ten outdoor motors and dinghies and it was up to the District Development Authority to decide who they should go to.  Marcel automatically came to mind as he had waited for so long and done numerous follow ups. 

88.	He was the Chairman of the DDA but the resolution was made by the entire board of seven members upon a vote.  It was hard for him to say how many requests he had received for boats but all the coastline villages wrote seeking such assistance. There were many requests.  He did not direct who should get the boat. He only chaired the meeting. He did not decide the outcome of any one resolution. It was a consensus by all board members. He did not have the register of correspondence of applications before him but there were lots of requests. 

89.	Like every leader and person “you reciprocate assistance one way or another so if someone works for you they need to be compensated in one form or shape, that is what we do, we are human beings, we cannot use and dump them”.  “Government is of the people, by the people.  We have to serve the masses collectively so in this case the letter came from his family and so the boat was released to them.”

90.	He denied that he gave the boat to Marcel and his family or clan so that they would vote for him. They had always voted for him so obviously they were going to vote for him. He did not give it to them so they would continue to vote for him. They are genuine and long-time supporters since 2012. 

91.	It was not his intention to get Marcel and his clan to vote for him. He gave it to them because they applied and waited for so long. He did not give the boat personally. It was done months away so when the boat was collected and taken to Delena he did not know.  

92.	There was a standing resolution by the DDA Board. They applied in the 9th Parliament. It was not a matter for the last term of Parliament. He did not have any resolution from the DDA Board.  In 2015 or 2016 most of the official records went up in flames. 

93.	He became aware that a boat was available in January or February 2022 during a sitting of Parliament. He made an enquiry with the Minister, Dr Tom, as to whether there was some help coming his way to Kairuku because some of his colleagues had told him they had received their boats under the Coastal Fisheries Program.  As to whether he would therefore have a resolution from 2022, he said that the District Administrator would have a copy of the board resolution. 

94.	Marcel Makuri said in his affidavit that he is the proud owner of the dinghy and outboard motor which he and his wife collected from Ela Motors Waigani on 8 April 2022. The boat was purchased through funds from the National Fisheries Authority upon request from the First Respondent who was then the member for Kairuku Hiri Open Electorate. He said it was given to him and his wife because they had been staunch supporters of the First Respondent during the National General Elections in 2012, 2017 and 2022, and the 2014 bi-election. 

95.	After collecting the boat they took it to his sister’s house at Pari Village, Moresby South District, National Capital District. His sister is married to a Pari man and they kept the boat at their residence. Three weeks later, he and his wife managed to buy some zoom fuel from the city and they started their journey to Delena by sea. When they finally arrived a handful of relatives gathered to welcome them home. 

96.	He produced documents which appear to be from Ela Motors including:

a.	a Sales Contract with the customer, National Fisheries Authority, dated 5 March 2022, for a Yamaha boat, for the price of K15,666.20, bearing what appears to be a signature and stamp from the “Office of the Member for Kairuku, Hon Peter Isoaimo” as the purchaser. The estimated delivery date was 13 April 2022; 
b.	an invoice dated 6 April 2022 issued to the National Fishers Authority for the dinghy in the sum of K15, 666.20;  
c.	a receipt of the same date; and 
d.	a delivery form dated 8 April 2022, which appears to bear the name and signature of Margaret Wani. 

97.	In oral evidence Marcel said that he applied for the dinghy in 2014.  After collecting the dinghy on 8 April 2022 he took it to Pari village and then to Delena on 13 June 2022.  He said that he and his wife wrote the proposal for the clan.  

98.	He was repeatedly asked the name of his clan and said that it was “Marehau Fishing Group”.  He was asked whether that was his clan’s name or the name of a group.  He was hesitant and struggled to answer the question. He maintained that it was the name of his clan until effectively abandoning that position later in his evidence.  

99.	He said that he did not use the boat to campaign for the First Respondent. The dinghy was given to him and his clan for fishing. The First Respondent did not call him to pick up the boat. Ela Motors called him. He initially said that Ela Motors got his number when he went to collect the dinghy but ultimately he was unable to explain how Ela Motors got his number in the first place. 

100.	He said that the First Respondent did not give him the dinghy. The National Fisheries Authority gave him the dinghy.  He applied to the NFA office for a dinghy.  

101.	When told that the First Respondent had told the court he had given him some money for zoom to go back to the village, Marcel agreed. He took the boat to Pari. At some later stage he went back and got K200 for fuel from the First Respondent at his office at Kaugeri. 

102.	He denied having a meeting with Kila Ume and his clan before he came to Port Moresby to collect the dinghy. He did not know if Kile Ume or Ali Midian were there when he arrived in the village, it was night and there were “plenty people”. 

103.	He said that there were forty members in his clan, and twenty three in the fishing group. 

Submissions

104.	The Petitioner submits that the intention of the respondent in giving Marcel money for fuel was for Marcel to take the dinghy to the village and induce voters to vote for the First Respondent or procure his return.  Marcel was well known to be a strong supporter of the First Respondent and in the village setting everyone would have understood that the boat was given to him by the First Respondent. As a result the First Respondent received 44 votes even though Delena is the Petitioner’s stronghold.  

105.	He submits that the case is similar to that of Leonard v Wesley (2014)  N6552, upheld by the Supreme Court in Wesley v Leonard (2016) SC1477, in which the candidate was found guilty of bribery. He had been carried to his nomination and then in front of a large group of people he handed a PMV, purchased through DSIP funds, and its keys to a ward councillor.  Kariko J found that the ordinary villager would have seen the event as signifying a gift from the candidate to the Bagilina community by the First Respondent rather than an item purchased through DSIP funds.   The candidate used the occasion to induce the electors of the Bagilina community to vote for him.     

106.	The First Respondent submits that the First Respondent cannot have committed bribery contrary to s 103(a)(i) and (iii) because: a) the dinghy and motor were purchased from the funds provided by the NFA and not the First Respondent; b) Marcel was a campaign coordinator and die-hard supporter of the First Respondent; and c) Marcel cannot have been induced to vote for the First Respondent because he was his supporter. 

107.	The Second Respondent submits that the Petitioner has failed to establish that the First Respondent committed bribery because: a) the evidence did not establish that the Petitioner’s witnesses or other electors were induced to vote for the First Respondent; b) Marcel was a supporter of the First Respondent; c) Delena was the Petitioner’s stronghold; d) Marcel and not the First Respondent brought the dinghy to the village; e) the dinghy was purchased by the NFA and beyond the First Respondent’s influence or authority; f) the dinghy was released with the intention of assisting fishing villages, one of which was Marcel’s; and g) as elected member, the First Respondent took steps in Parliament to ask about the implementation of the scheme, and it was part of his legitimate functions as a member to ensure that government policies were implemented in his district by releasing the dinghy.

S 103(a)(i), 103(a)(iii) and 103(d) of the Criminal Code 

108.	Section 103 of the Criminal Code is a complex section, by which I mean that it creates multiple offences not only across but within each of its subsections.  

109.	The petition alleges offences contrary to ss 103(a)(i), 103(a)(iii) and 103(d) of the Criminal Code.

110.	The elements of s 103(a)(i) of the Criminal Code are that a person:

a.	gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure;
b.	to, on, or for, any person;
c.	any property or benefit of any kind;
d.	on account of anything done or omitted to be done, or to be done or omitted to be done;
e.	by an elector at an election in the capacity of an elector.

111.	The elements of s 103(a)(iii) of the Criminal Code are that a person:

a.	gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure;
b.	to, on, or for, any person;
c.	any property or benefit of any kind;
d.	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.

112.	The elements of s 103(d) of the Criminal Code are that a person:

a.	advances or pays any money;
b.	to or to the use of any other person; 
c.	with the intent that the money will be applied for any of the purposes referred to in s 103(a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose.

113.	I remind myself that the standard of proof to be applied is to the entire satisfaction of the Court and that is equivalent to or just short of the criminal standard of proof, namely proof beyond reasonable doubt: Leonard v Wesley, supra, applying Neville Bourne v Manasseh Voeto (1977) PNGLR 298; Peter Waranaka v Gabriel Dusava (2009) SC980; Aide Ganasi v Sali Subam (2013) SC1277.

Consideration

114.	I reject the submission that a supporter cannot be bribed.  The term “supporter” has no legal or technical meaning, and there is no such defence at law. 

115.	Whether any property or benefit is given with the intention that it induce a person to vote for a candidate is a matter of fact that must be determined on the particular facts and circumstances of the case at hand.  

116.	Waranaka v Dusava (2009) SC980 is not authority for the proposition that a candidate cannot as a matter of law bribe their own “supporter”.  S 103 makes no such distinction.  Whilst there may well be practical issues establishing to the requisite standard that benefits given to a person who is a longstanding supporter of the candidate were given for the purpose of inducing them to vote for the candidate, that is a matter separate from the legal definition of the offence. The issue in Waranaka was whether the trial judge had erred in finding the offence proven to the requisite standard on the evidence.  The Supreme Court found that the trial judge erred in failing to consider certain questions on the evidence which raised doubts about the allegations, including this one: “So how could Mr. Waranaka have given the money to his opponents’ supporters when his own supporter Mr. Hipmaningi was there? If he was to give the money to anyone who was there building the campaign platform, he would have ensured to give it to his own supporter or man as opposed to his opponents.”.  That is a statement about the safeness of a factual finding in a particular case and not a statement of general legal principle: Aihi v Isoaimo, Objection to Competency (2023) N10158 at [47] and [48].

117.	Both respondents also place great reliance upon Wenge v Naru (2012) N5123, which adopted the comments made in Palme v Mel (1989) N808 that (emphasis mine): “there can be nothing underhand by assisting a supporter or a committee man to do his job”.  

118.	The comments are similar to those of Amet J in relation to an allegation that a candidate gave K23 to a campaign member in Kaiabe v Makiba (1989) N723 (emphasis mine):
 
“[E]ven if the truth were as the Petitioner has alleged I could not find that that amounted to undue influence or bribery, for the simple reason that it is a perfectly legitimate electioneering practice for a candidate to give money to campaign managers and their teams to campaign for him.” 

119.	There is nothing surprising about those statements. But again, every case must be determined on its own facts and circumstances.

120.	It is one thing to give monies for legitimate campaign purposes or in remuneration.  It is quite another to give property or benefit of value beyond that which might be considered reasonable for that purpose. Depending on the circumstances, that may well establish an intention to induce the recipient, their families or others, to vote for the candidate.

121.	Moreover, it is quite clear that if a candidate gives the property or benefit to a supporter on account of something to be done by an elector, or with the intention that it is used to induce any person to endeavour to procure their return or the vote of any elector then that conduct would contravene one or other of the provisions of s 103(a)(i)(iii) or (d) of the Criminal Code. 

122.	In this regard, it should be borne in mind that it is not necessary in every case that the person to whom the property or benefit is given is the same person intended to be induced to endeavour to procure the return of the candidate, or the vote of an elector.   

123.	For instance, s 103(a)(i) of the Criminal Code expressly provides that a person who gives to any person, any property or benefit on account of anything to be done by an elector at an election is guilty of an offence.  Similarly, if a person gives any person any property or benefit in order to induce any person (not necessarily the person) to endeavour to procure the return of a candidate, or the vote of any elector that will be in breach of s 103(a)(iii).  

124.	Returning to the present case, I cannot be entirely satisfied that the First Respondent intended to bribe Marcel at the time he arranged for the boat to be given to him in March or April 2022.

125.	But it is the delivery of the boat to the village by Marcel in June 2022, and the role of the First Respondent in facilitating that delivery, that is critical to this allegation. 

126.	As Amet J observed in Kaibe v Makiba, supra: 

“I do consider however that if a sitting M.P. did receive the cheques in plenty of time but simply kept them to use for electioneering purposes, it may amount to undue influence or bribery.”

127.	All three witnesses called by the Petitioner impressed me as honest and reliable.   I make these findings having heard and observed the witnesses, having regard to the evidence in the case as a whole, together with the demeanour of each of the witnesses whilst giving evidence, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.  

128.	In making this finding in relation to Mr Turner, I have taken into account that he did not state in his affidavit that the First Respondent said at the public free trade meeting on 8 May 2022 that he would deliver a boat to the Marehau Fishing Group, as well as the fact that Mr Turner readily concedes that he is a supporter of the Petitioner.  Nevertheless, I accept Mr Turner’s evidence that the words were said by the First Respondent. He gave the evidence in further explanation of what was contained in his affidavit and I find no material inconsistency.  Furthermore, it was not put to him in cross-examination that the statement was not made, only that it was made on 8 May 2022 and before the election period. In addition, the Petitioner was given the opportunity to address the evidence in his oral testimony but did not do so and did not deny making any such statement. 

129.	As for Mr Makuri, he was a thoroughly unimpressive witness. Having heard and observed him I am unable to accept him as a witness of truth. His demeanour was poor and he was a hesitant witness who struggled to answer simple questions on a number of occasions. I reject his evidence, which is patently implausible, and from which he ultimately withdrew, that his clan is called the Marehau Fishing Group. In addition, his oral evidence contradicted his affidavit evidence, or was contradicted by other evidence, in several key respects, in particular that: he applied to the NFA for the boat when there is no dispute that he applied to the First Respondent; that he collected the boat only three weeks before he delivered it to Delena Village, when it is clear that he collected it on 8 April and did not deliver it until 13 June, more than  two months later; that he and his wife “managed to find” money for zoom, when it is conceded that the First Respondent gave Marcel the money for fuel; and that there were only a handful of people present when he returned to the village with the boat when he strongly asserted under cross-examination that there were many people present at the time, which is consistent with the Petitioner’s case.

130.	In summary, I find the following facts to be established on the evidence:

•	On 8 April 2022 the dinghy and motor was collected from Ela Motors by Marcel and his wife.  The boat was taken to Pari Village.
•	On 8 May 2022 the First Respondent announced at a public gathering of several villages at Delena that he would deliver a dinghy to the Marehau Fishing Group. 
•	On 12 May 2022 the writs for the 2022 NGE, including Kairuku Open Electorate, were issued by the Governor General.
•	On or about 6 June 2022 Marcel called a meeting of his clansmen in Delena and informed them that the First Respondent had given a dinghy to the clan and that he was going to Port Moresby to meet him and collect it.
•	On 13 June 2022 between 8 and 830 pm, Marcel and five others, arrived with the boat at Delena Village, where they were met by a crowd of about 100 people who greeted their arrival with the boat in celebration. Present amongst them were Kila Ume and Ali Midian, both electors.
•	On 20 June 2022 the First Respondent conducted a rally at Delena Village at which Marcel’s wife said publicly to the First Respondent: “I thank you, Honourable Member, for giving us, me and my husband, the dinghy. On behalf of Delena people we would like to thank you for the purchase. You will have the numbers during the voting.”  
•	On 4 July 2022, voting took place in Delena Village. 
 
131.	It seems to me that Marcel may well have always intended that he would ultimately keep the boat for himself.  He applied for it under the name of the Marehau Fishing Group when no such group exists, and there is no evidence that other clan members were aware of the initial application.  

132.	Be that as it may, the evidence establishes to my entire satisfaction that Marcel orchestrated the delivery of the boat to Delena Village on 13 June 2022 with the intention of inducing the electors among his clansmen, their families and other villagers present on that day, to vote for the First Respondent, whether by giving the First Respondent their first, second or third preference. That is the only rational inference available in the circumstances.  

133.	There is no dispute that Marcel is a staunch and longstanding campaigner for the First Respondent.  

134.	Despite collecting the boat on 8 April 2022 from Ela Motors, Marcel left it at his sister’s village at Pari for more than two months until 13 June 2022.  On any objective view the boat was a valuable asset but it was particularly valuable to him and to his clan, family and community. Marcel could not afford to purchase the boat himself.  It is very strange therefore that he did not attempt much earlier to bring the boat back to his village, where it had immediate value and utility.  

135.	It was also potentially risky for him to leave such a valuable asset at another village, especially for such an extended period of time.  

136.	The value of the boat is demonstrated by the fact that about 100 people gathered at 830 pm on a Monday night to receive him and the boat to the village in celebration.

137.	Not only did Marcel leave the boat at his sister’s village for two months but he waited until 13 June 2022 before bringing it back to Delena Village. 

138.	Not only was this well into the campaign period but it was about a week before the First Respondent’s rally at Delena, a rally the timing of which he would, as the First Respondent’s campaign coordinator, have been well aware.

139.	In addition, Marcel waited until about a week before he brought the boat to Delena to call his clansmen together to tell them that the First Respondent had given a dinghy to the clan and that he was going to Port Moresby to meet him and collect it. 

140.	Marcel was also unable to satisfactorily explain why he waited until 13 June to bring the boat back. Whilst I appreciate that he may have lacked money for fuel, he always lacked that money, so it does not explain why he waited until he says he did, that is the middle of the campaign period and a week before the planned rally, before asking the First Respondent for assistance to buy fuel.  

141.	Furthermore, Delena has a relatively small population of about 500. I have no doubt that Marcel was well known in the village as the First Respondent’s longstanding campaign manager, and that Marcel appreciated that.  By bringing the boat to Delena in the middle of the campaign period he intentionally sent a message that the boat was a gift from the First Respondent to his clansmen, their families and the people of Delena.  

142.	Marcel told his clansman a week before that he was going to get the boat given by the First Respondent, and it is reasonable to infer that he caused word of his impending arrival that particular night to be known with the intention that a number of his clansmen, their families and other villagers would greet his arrival. 100 people, including adults and children, would not have turned up on the shorefront at 8 pm on a Monday night, with ant nests ready in celebration otherwise.

143.	It does not matter whether his clansmen, their families, or the other villagers present already supported the First Respondent, or whether they were staunch supporters of the Petitioner as it appears many Delena villagers were.  Marcel’s intention was to induce the electors amongst them to endeavour to procure the return of the First Respondent at the 2022 NGE, or to induce them to vote for the First Respondent, whether by giving him their first, second or third preference, in either case. 

144.	I am also completely satisfied that there were, and that Marcel was aware that there were, electors amongst his clansmen, their families and the other villagers who were present that night. It matters not whether he knew that one of his clansman, Kila Ume, or another villager, Ali Midian, both of whom were electors, in particular, were there.  

145.	In making this finding I have taken into account that Marcel later claimed the boat for himself and that this may have prompted the complaints by other members of his clan.  That makes no difference to my finding as to his intention at the relevant time and for the reasons outlined above it does not affect my findings that the Petitioner’s witnesses were honest and credible. 

146.	Similarly, I have taken into account that about a week later on 22 June 2022, Marcel’s wife thanked the First Respondent at his rally in Delena Village for giving “her husband and herself” the boat.  That statement must be seen in the context of her following words, however, in particular, that she thanked him on behalf of the people of Delena who would vote for him. Whilst not necessary to my finding, that statement demonstrated that the boat benefited Marcel’s clan, their families and the broader Delena community, and was consistent with an intention to induce the electors among them to vote for the First Respondent.  But it is the intention of Marcel that is critical and for the reasons outlined above I am entirely satisfied that Marcel intended to induce the electors among his clansmen, their families and other villagers present on 13 June 2022 to vote for the First Respondent.  

147.	The evidence therefore establishes to my entire satisfaction that on 13 June 2022, a person, namely Marcel Makuri, offered to give or confer, to any person, namely his clansmen, their families, and other villagers of Delena Village present, any property or benefit of any kind, namely the use and benefit of the boat, in order to induce any person, namely those amongst them who were electors, including Kila Ume and Ali Midian, to endeavour to procure the return of the First Respondent, or in order to procure their vote for the First Respondent, at the upcoming election, for the purposes of s 103(a)(iii) of the Criminal Code.

148.	Furthermore, I am entirely satisfied that this was done with both the knowledge and authority of the First Respondent for the purposes of s 215(1) and (3)(a) of the Organic Law.  The evidence excludes any other rational inference.

149.	The First Respondent may not have known the exact day that Marcel was going to take the boat to the village. The First Respondent may not have known that Marcel would make statements directly to his clansman to the effect that the First Respondent had given the clan a boat.  The First Respondent may not have intended that the boat be delivered to the village during the campaign period when he initially arranged for it to be given to Marcel and his fishing group. But the evidence establishes to my entire satisfaction that the First Respondent became aware that Marcel intended to take the boat back to Delena Village during the campaign period, and that he gave him fuel money for this purpose.  

150.	The First Respondent made a public statement on 8 May 2022, just a few days before the issuance of the writs, that he would deliver a dinghy to the Marehau Fishing Group. Marcel told his clansmen on or about 6 June 2022 that he was going back to meet the First Respondent. The First Respondent admitted that he gave Marcel money for fuel for the purposes of taking the boat back to Delena. I am entirely satisfied in all the circumstances that this was done after the meeting on or about 6 June 2022 and prior to Marcel’s return to the village on 13 June.  

151.	I am also entirely satisfied that the First Respondent knew that Marcel’s clansmen, their families and the ordinary villager of Delena knew that Marcel was his longstanding campaign manager and would see the boat as a gift from him (the First Respondent), regardless of whether it was purchased by the NFA. 

152.	The First Respondent might not have known that the boat would be delivered with such fanfare or to a group of almost 100 people but I am entirely satisfied that the First Respondent knew that the boat constituted a very strong inducement to those amongst Marcel’s clan, their families and any other villagers who witnessed its arrival, when considering whether to give him their first, second or third preferences in the upcoming election.  

153.	As above, the statements addressed to him by Margaret Wani at his rally on 22 June only reinforced the message that the boat was a gift from him to the Delena community.  Critically, there was no evidence from the First Respondent that he sought to distance himself from her statements or to clarify them in any way.  He did not address the evidence about the statements made by Margaret Wani at all, in either his affidavit or oral evidence.

154.	In conclusion, I am entirely satisfied that the offence committed by Marcel Makuri contrary to s 103(a)(iii) was committed with both the knowledge and authority of the First Respondent pursuant to ss 215(1) and (3)(a) of the Organic Law.  The First Respondent knew that Marcel intended to take the boat to Delena in the middle of the election campaign, with the intention of offering to give or confer to his clansmen, their families and any other villagers who witnessed his arrival, the use and benefit of the boat, in order to induce any person, namely those amongst them who were electors, to endeavour to procure his (the First Respondent’s) return at the election, or in order to procure their vote for him, at the upcoming election. Furthermore, the First Respondent authorised the conduct by giving Marcel money to purchase fuel for that purpose.  

155.	In my view, s 215(3)(a) extends the circumstances in which an election will be automatically voided from those where the candidate might strictly be found to “commit” an offence of bribery pursuant to the strict requirements of s 7 of the Criminal Code to those where the offence is committed with the candidate’s “knowledge or authority”: Simeon Kibeto v Saki Hacky Soloma (2023) N10173 at [30].

156.	The evidence in this case, however, also establishes that the First Respondent committed bribery contrary to s 103(a)(iii) applying s 7 of the Criminal Code, in particular s 7(b) and (c).  

157.	The principles governing these provisions have been considered in detail by the Supreme Court in the context of criminal proceedings.  I see no reason why s 7 should not apply in petition proceedings like any other relevant provisions, including definitions and so forth, when considering whether offences under s 103 of the Code have been established. 

158.	Pursuant to s 7 of the Criminal Code responsibility applies to every person who is a party to an offence. It deems to be guilty of an offence every person who actually does the act or makes the omission that constitutes the offence, who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence, who aids another person in committing the offence, or who counsels or procures another to commit it: Banaso v The State (2022) SC2302 at [62].  

159.	Adopting the principles for use in the petition context, it is not necessary that the candidate knew that the particular offence would be committed on a particular day at a particular place.  The petitioner must show that the candidate knew that an offence of the kind that was committed was intended, and with that knowledge did something to aid, counsel or procure the principal commit it: Banaso at [90] to [91]; Wamela (supra); Karani and Aimondi v The State [1997] SC540.  

160.	It is not necessary for the petitioner to establish that the candidate himself or herself held the same intention as the person who committed the offence. It is sufficient for the petitioner to prove that the candidate knew that the principal offender held the specific intention, and that knowing this, aided, counselled or procured the offence:  see the discussion in Banaso at [87] to [89].

161.	To establish liability pursuant to s 7(1)(c) of the Criminal Code the petitioner must establish to the entire satisfaction of the court that: a) the offence was committed; b) the candidate knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the candidate intentionally aided (assisted or encouraged) that person to commit the offence: Banaso at [97].

162.	To establish liability pursuant to s. 7(1)(b) of the Criminal Code the petitioner must establish beyond reasonable doubt that: (a) the offence was committed; (b) the candidate knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and (c) the candidate did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist:  Banaso at [109].

163.	As above, the evidence establishes that Marcel committed the offence of bribery contrary to s 103(a)(iii) of the Criminal Code. I am entirely satisfied that the First Respondent knew the essential facts constituting the offence, including Marcel’s intention, and that he intentionally aided Marcel to commit the offence, by giving him the money to bring the boat to Delena on or about 13 June 2022, for the purpose of s 7(1)(b) of the Criminal Code.  For similar reasons the giving of the money was an act done with the intention of enabling or aiding Marcel to commit the offence for the purpose of s 7(1)(c) of the Criminal Code.

164.	For the same reasons I am entirely satisfied that when the First Respondent gave money to Marcel for the purpose of buying fuel to take the boat to Delena he did so with the intention that the money would be applied for the purpose of s 103(a)(iii), contrary to s 103(d) of the Criminal Code.

165.	As to the submission that the dinghy was not purchased by the First Respondent, there is nothing in s 103(a) of the Criminal Code that requires that the property or benefit belongs to the person giving, conferring, promising or offering to give, procure or attempt to procure it.  The fact that the property or benefit belongs to or is controlled by the person said to have offered it may support the inference to be drawn as a matter of fact. But the section makes clear on its face that the person may not even possess the property or benefit at the time it is offered such that the person may simply promise or offer to give, procure or attempt to procure any property or benefit. Indeed, a person could offer or promise property or a benefit with no real intention of ever providing it.  

166.	Furthermore, the property or benefit for the purposes of s 103(a) may be “of any kind”. Those words should be given their ordinary meaning.  There is no reason to restrict the benefit to the proprietorial kind, or to one requiring ownership: see by analogy the discussion in State v Gamato & Hetinu (2021) N9250 at [82]. 

167.	It is not necessary that the person to whom the property or benefit is given or offered must in fact be successfully induced to vote for the candidate.  S 103(a) is in very clear terms. On its face, the offence lies in the giving, conferring, procuring, or promising or offering to give or confer, or procure or attempt to procure any property or benefit of any kind on account of anything done or omitted to be done, or to be done or omitted to be done, by any elector at an election in the capacity of an elector pursuant to s 103(a)(i), not in the thing done or omitted to be done, or to be done or omitted to be done. 

168.	Similarly, the offence lies in the giving, conferring, procuring, or promising or offering to give or confer, or procure or attempt to procure any property or benefit of any kind 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 for the purpose of s 103(a)(iii), not in any successful inducement.  See the discussion in State v Gamato & Hetinu, supra at [128] and [129]; and State v Runny Dau (2021) N9253 at [89].

169.	Nor is it necessary that a person must actually receive the property or benefit before an offence of bribery is established.  As explained above, the offences are complete upon the giving, conferring, procuring, promising, or offering to give or confer etc.  Or in other words a person will still be liable under s 103 even if the person they attempt to bribe rejects the offer:  Aihi v Isoaimo, Objection to Competency (2023) N10158 at [49]. 

170.	Finally, it is not necessary for the petitioner to plead or establish that the result would likely be affected unless the bribery is conducted without the candidate’s knowledge or authority:  Fairweather v Singirok (2013) SC1293 at [21]; Aihi v Isoaimo, Objection to Competency (2023) N10158 at [49].  

171.	The petition did not expressly state that the bribery was done with the First Respondent’s knowledge or authority but that was sufficiently clear from the face of the allegations and for the reasons outlined above I am entirely satisfied that it was.  To dismiss the petition in those circumstances because of the deficiency would fail to give effect to s 217 of the Organic Law which requires the Court to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.  Moreover, the petition did expressly allege that the First Respondent contravened s 103(d) and that has been established, and furthermore, the petition alleged an offence under s 103(a)(iii) and by virtue of s 7 of the Criminal Code that has been established.

CONCLUSION

172.	I find one of three grounds of bribery tried in the election petition proven to my entire satisfaction. The First Respondent was a candidate in the 2022 National General Election at the time. It follows that his election for the Kairuku Open Electorate must be declared void.

173.	The Registrar is obliged to report the act of bribery to the authorities referred to in s 216 of the Organic Law and forward a copy of the Court’s order to the Clerk of Parliament under s 221 of the Organic Law.  Pursuant to s 226(c) of the Organic Law there shall be a new election.

COSTS

174.	Whilst only one ground has been established, it is nevertheless appropriate that costs follow the event.

175.	I originally intended to order that costs be borne equally by the First and Second Respondents.  The reason I considered ordering costs against the Second Respondent is that its counsel effectively became an advocate for the First Respondent during the proceedings.  That is inappropriate.  

176.	I appreciate that the Electoral Commission will want to avoid the unnecessary cost and inconvenience of conducting a bi-election. The Electoral Commission and those who appear for it are reminded, however, that the Commission has the constitutional duty to uphold and defend the integrity of the elections and election processes: Talita v Ipatas (2016) SC1603 at [11].  This extends not only to the conduct of the election but also in the determination of any petition challenging that process. 

177.	The petition in this case contained allegations of bribery. It was not alleged that the Commission or its servants or agents were involved in or aware of the allegations, and the Commission called no witnesses. In such circumstances, the Electoral Commission should assist the Court arrive at the truth, in accordance with its mandate. It should not act as an advocate for either party. 

178.	It follows that the duty of counsel for the Electoral Commission in such circumstances is to assist the Court avoid falling into error, by referring it to relevant provisions under the Organic Law or other legislation, and binding or relevant authorities. It is also appropriate for counsel for the Commission to cross-examine witnesses for both the Petitioner and the candidate with a view to testing their veracity and ascertaining the truth, albeit that such cross-examination is likely to be quite limited.  But counsel must be careful when cross-examining either party or their witnesses not to put words into their mouths through leading questions with a view to supporting a particular party.  

179.	Whilst I have seriously considered ordering costs against the Commission in this case, ultimately that would result in an order against the State, and in respect of its scarce public funds.  I do not intend to do that on this occasion given that the Commission did not bring the proceedings, is joined in all election petition proceedings, and given that the State’s resources will now be required to conduct a by-election.  

 	ORDERS

180.	I make the following orders:

(1)	The petition is upheld.
(2)	The election of the First Respondent is declared void.
(3)	The Second Respondent shall conduct a by-election for the Kairuku Open Electorate pursuant to s 212(3) of the Organic Law.
(4)	The First Respondent shall pay the Petitioner’s costs on a party-party basis to be taxed if not agreed.
(5)	The Petitioner’s security deposit shall be refunded. 

_____________________________________________________________
Wang Dee Lawyers: Lawyers for the Petitioner
Kamutas Legal Services: Lawyers for the First Respondent 
Harvey Nii Lawyers: Lawyers for the Second Respondent