N10964
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 61 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
NORTHERN PROVINCIAL ELECTORATE

JEAN EPARO PARKOP
Petitioner

V

GARY JUFFA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Popondetta: Cannings J
2024: 15th & 16th August

ELECTION PETITIONS – trial of one ground of challenge – alleged bribery of voters committed with the knowledge and authority of the successful candidate – Organic Law on National and Local-level Government Elections, s 215 – whether petitioner proved that the offence of bribery under s 103 of the Criminal Code was committed – whether bribery was committed with the knowledge or authority of the successful candidate.

The petitioner brought an election petition against the successful candidate relying on ten grounds. Seven were dismissed at an objection to competency hearing, leaving three for trial. At the start of the trial, two were abandoned due to non-availability of witnesses, leaving a single ground. It was alleged that the provincial administrator, who was known to be a supporter of the successful candidate (the first respondent) gave a considerable amount of cash to another supporter of the first respondent who then used it to purchase alcohol and drugs and went to a village where he used the cash, alcohol and drugs to bribe voters to get them to cast their votes for the first respondent. The petitioner provided six witnesses, three of whom gave evidence directly relevant to the bribery allegation. The first respondent provided two witnesses: the person who allegedly committed bribery and the provincial administrator, who confirmed that he did give K500.00 cash on the day of polling to the person who is alleged to have committed bribery but that person was a relative and the cash was given in response to a request for financial assistance and that he handed the cash to his relative in a public place and for reasons unconnected with the election.  

Held:

(1)	If bribery committed by a person with the knowledge or authority of the successful candidate is a ground of an election petition under s 215 of the Organic Law, there are two critical questions to pose. First, has the offence of bribery under s 103 of the Criminal Code been proven to have been committed? Secondly, has it been committed with the knowledge or authority of the successful candidate?

(2)	Here it was not proven that bribery was committed. Nor was it proven, if bribery were presumed to have been committed, that it was committed with the knowledge or authority of the successful candidate.

(3)	The petition was entirely dismissed.

Cases Cited

The following cases are cited in the judgment:

Amuli v Gore (2023) SC2496
Parkop v Juffa & Electoral Commission (2023) N10153
Parkop v Juffa & Electoral Commission (2023) N10281

Counsel

D L Dotaona, for the Petitioner
A W Jerewai, for the First Respondent
L Dos, for the Second Respondent

16th August 2024

1.      CANNINGS J: This has been the trial of the sole remaining ground of an election petition brought by the petitioner, Jean Eparo Parkop, who has challenged the election of the first respondent, Gary Juffa, as member for Northern Provincial in the 2022 general election. 

2.     The petition contained ten grounds of challenge, seven of which were dismissed after an objection to competency hearing in Waigani, which concluded on 9 March 2023 (Parkop v Juffa & Electoral Commission (2023) N10153). A further objection to competency was on 31 May 2023 unsuccessful (Parkop v Juffa & Electoral Commission (2023) N10281). That meant that three grounds remained for trial.

3.     The proceedings were then put on hold due to proceedings in the Supreme Court brought by the second respondent, the Electoral Commission, which took about a year to be concluded by an order refusing an application for leave for review of my ruling on the further objection to competency.

4.     Directions were then given, with the agreement of all parties, for the trial of the three remaining grounds in Popondetta. At the start of the trial, the petitioner abandoned two of the grounds due to unavailability of witnesses, leaving one only remaining.

5.     The allegation of the petitioner is that the offence of bribery under s 103 of the Criminal Code was committed by an agent of the first respondent and that this was done with the knowledge or authority of the first respondent. 

6.     The details of that allegation are stated in the petition as follows:

Bribery committed on 8 July 2022 by the agents and servants of the First Respondent with the knowledge and authority of the First Respondent with the intention to cause or induce electors to vote for the First Respondent contrary to section 103(d) of the Criminal Code.

3.	Bribery by Councillor Allie Pukari an agent of the First Respondent or person other than the First Respondent acting with the knowledge and authority of the First Respondent.

(1)	On Friday, 8 July 2022 at 11 am the Oro Provincial Administrator Trevor Magei who is the Chairman of the Oro Provincial Elections Steering Committee gave a brown envelope of cash to Councillor Allie Pukari a Councillor of a Popondetta Urban Local-level Government ward who gave the cash to a number of boys in a vehicle to buy beer and drugs.  Oro Province Administrator Trevor Magei and Councillor Allie Pukari were agents of the First Respondent, and acted with the knowledge and authority of the First Respondent.
	
(2)	On Friday, 8 July 2022 at 2 pm at Sanananda village, located in the Oro Bay Local-level Government in the Northern Provincial seat Councillor Allie Pukari being an agent of the First Respondent and acting with the First Respondent’s knowledge and authority gave K50 cash to John Kenon an elector in the Northern Provincial seat and Councillor Pukari specifically instructed John Kenon to vote Box No. 14- Gary Juffa in the election for the Northern Provincial seat.
	
(3)	When Councillor Allie Pukari gave the K50 cash to John Kenon an elector to induce him to vote for the First Respondent he also gave beer, drugs (marijuana) and K50 cash each to other youths and community members who were there for the polling with the intention of inducing them to vote for the First Respondent.
	
(4)	The First Respondent appointed Trevor Magei as the Oro Provincial Administrator and Mr Magei has played a key role in the election campaign of the First Respondent in the 2022 National General Election.  Provincial Administrator Trevor Magei and Councillor Allie Pukari are close supporters and associates of the First Respondent.	

TWO CRITICAL ELEMENTS

7.   There are two critical elements of the case that must be proven by the petitioner. First, that the offence of bribery under s 103 of the Criminal Code was committed. Secondly, that bribery was committed with the knowledge or authority of the successful candidate.

8.    The required standard of proof is high, due to the need to prove commission of a criminal offence. As recently stated by the Supreme Court in Amuli v Gore (2023) SC2496, the prevailing standard is ‘to the entire satisfaction of the Court’. This is a slightly different standard to that which has historically applied, the criminal standard of ‘beyond reasonable doubt’. Frankly, I do not think there is any material difference between the two.

9.    Mr Jerewai, for the first respondent, submitted that the first thing the petitioner must establish is that there is a nexus between the act of bribery, allegedly committed by a person other than the first respondent, and the first respondent. However, I prefer to deal with the issues in the order outlined above, which can be restated as posing two questions.

10.    First, has it been established to the entire satisfaction of the Court that Allie Pukari committed bribery under s 103 of the Criminal Code at Sanananda village on 8 July 2022? Secondly, has it been proven to the entire satisfaction of the Court that the offence of bribery was committed with the knowledge or authority of the first respondent? 

11.     These requirements arise from s 215 (voiding election for illegal practices) of the Organic Law on National and Local-level Government Elections, which 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	HAS IT BEEN ESTABLISHED TO THE ENTIRE SATISFACTION OF THE COURT THAT ALLIE PUKARI COMMITTED BRIBERY UNDER SECTION 103 OF THE CRIMINAL CODE AT SANANANDA VILLAGE ON 8 JULY 2022?

12.     The Court has been presented with two conflicting bodies of evidence. The petitioner called six witnesses, three of whom gave evidence directly relevant to the alleged act of bribery: Charlie Pukari (Allie Pukari’s brother), John Kenon and Rodney Koigita.

13.    The petitioner’s case is that on 8 July 2022 cash was provided by the Provincial Administrator Trevor Magei to Allie Pukari in the car park of a supermarket in Popondetta, that the cash was used to bribe voters at Sanananda village and that the voters were instructed upon receiving cash of K50.00 from Allie Pukari to put their votes in box #14, which was the first respondent’s box.

14.     For the first respondent, two witnesses gave evidence rebutting the evidence of the petitioner’s witnesses: Allie Pukari and the Provincial Administrator, Trevor Magei. Both agreed that cash was given by Trevor Magei to Allie Pukari but disagreed as to the amount of cash involved and the circumstances and purpose of the exchange of cash.

15.    I cannot immediately assess Charlie Pukari, John Kenon or Rodney Koigita as dishonest witnesses. The demeanour of each of them was reasonable. Their version of events was not so far-fetched as to be unbelievable.

16.     On the other hand I make similar observations of the evidence of Trevor Magei and Allie Pukari. I must note, however, in regard to the evidence of Trevor Magei, that despite the attempt to undermine his credibility by the allegation that he was unqualified and question the speed of his elevation in the ranks of the provincial public service (thus putting to him in the position where he owed something to the first respondent, the governor of the province), I thought he was an impressive witness. I tend to regard Trevor Magei as an honest witness. I assess his evidence that he did not give Allie Pukari a huge amount of cash in the car park in town, but only gave him K500.00, as truthful evidence.
 
17.    That it was truthful is borne out by evidence of the close family relationship between Trevor Magei and the Pukari brothers.

18.    It is significant that in Charlie Pukari’s cross-examination he did not immediately acknowledge that there was any connection at all between them, let alone that they are reasonably closely related.

19.     There was further evidence that Trevor Magei is accustomed to providing financial support from time to time to Allie and Charlie Pukari and other family members. There was evidence that such support has continued over a long period and still continues as demonstrated by evidence that only recently Trevor Magei sponsored return flights from Popondetta to Port Moresby for both Allie and Charlie Pukari to attend a funeral gathering for a relative. 

20.    The evidence of the relationship between Trevor Magei and the Pukari brothers is therefore quite clear and is no longer in dispute. It is significant that the concession as to the family relationship between Trevor Magei and himself came very late in Charlie Pukari’s cross-examination. 

21.     I reiterate my assessment of the three witnesses for the petitioner who gave direct evidence of Allie Pukari committing bribery. I do not reject any of their evidence outright. It is not so far-fetched as to be unbelievable. Their demeanour was not such that any of them can be regarded necessarily as dishonest witnesses. 

22.     As for the three other witnesses for the petitioner, their evidence was interesting but eventually irrelevant and of little probative value. The petitioner herself gave evidence but offered nothing relating to the allegations at the centre of the case. The evidence of Simon Eroro and Alen Mesa of a planned meeting with Trevor Magei in Port Moresby and the message that Trevor Magei was prepared to swear an affidavit that would support the petitioner’s case, was refuted by Mr Magei and, with no corroboration of it, remains difficult to believe. In any event, their evidence in my view actually supported the first respondent’s case as it suggested that Trevor Magei has not always supported the first respondent. 

23.     The task of the judge presented in an election petition with two bodies of conflicting evidence is, just as it is in other cases, to address the question of who is telling the truth.

24.    Who is telling the truth about, for example:

•	The circumstances in which Trevor Magei gave cash to Allie Pukari?
•	How much cash was given?
•	Whether the cash was provided in an envelope that was slipped through a partially wound-down vehicle window or whether Trevor Magei came out of the vehicle and in a public place and in full view of everybody handed cash to his relative?
•	What happened at Sanananda?
•	Whether Allie Pukari gave any cash at all to John Kenon or Rodney Koigita?
•	Whether some of the cash given by Trevor Magei to Allie Pukari was given to Allie Pukari’s wife, leaving him with only K200.00 which he used to purchase just two bottles of alcohol?
•	How much alcohol Allie Pukari purchased and where did it purchase it, at a bottle shop or at a black market outlet?
•	Whether Allie Pukari gave instructions to those he gave things to at Sanananda that they cast their votes in box #14?

25.    Ultimately, however, I need not make a finding as to who is telling the truth, and I refrain from doing so. The more important and critical question I must ask is whether the petitioner has proven the allegation that the offence of bribery under the Criminal Code was committed in the circumstances alleged in the petition to the entire satisfaction of the Court. 

26.    I answer that question no, she has not proven to my entire satisfaction that the offence of bribery was committed. She has presented a good body of evidence to support the allegation, and I refrain from finding that what she alleges happened, did not happen. However, she bears the onus of proving the allegation, which is very serious, and she has not proven it to the entire satisfaction of the Court.  For that reason alone, this petition must be dismissed. 

27.     I now move to consider the second critical element of the case.

2	HAS IT BEEN ESTABLISHED TO THE ENTIRE SATISFACTION OF THE COURT THAT THE OFFENCE OF BRIBERY WAS COMMITTED WITH THE KNOWLEDGE OR AUTHORITY OF THE FIRST RESPONDENT?

28.    If I had found the bribery allegation proven, I would have then had to address the question of whether bribery was committed with the knowledge or authority of the first respondent. I would answer that question in the same way I answered the first question: no, it has not been proven.

29.    I adopt Mr Jerewai’s submission that there is a missing link in the evidence between the (assumed) commission of bribery and knowledge or authorisation of it by the first respondent. The link provided by the petitioner is weak and tenuous. 

30.     I understand the argument that Trevor Magei provided cash to Allie Pukari because Trevor Magei owed something to the first respondent for the high position he had acquired in the provincial administration. He was the CEO and a top adviser to the first respondent as the provincial governor.

31.     But even if it were accepted that Trevor Magei felt obliged to do something to support the re-election of the first respondent, there is still no evidence, and no reasonable inference can be drawn, that what happened at Sanananda happened with the knowledge or authority of the first respondent.

32.     Though it is possible to draw an inference, it has to be a reasonable and necessary inference. Indeed, it has to be the only reasonable inference to be drawn that the first respondent knew about or authorised Trevor Magei giving cash to Allie Pukari so it could be used to bribe voters to vote for the first respondent. 

33.     That is not the only inference to be drawn. The possibility cannot be excluded that Trevor Magei did what he did on his own initiative.

CONCLUSION

34.    It has not been proven that bribery was committed as alleged in the petition and if bribery were proven, it has not been proven that it occurred with the knowledge or authority of the first respondent. For those reasons the sole remaining ground of the petition is refused and the petition must be wholly dismissed. 

COSTS

35.      Costs usually follow the event. Here, ‘the event’ is the dismissal of the petition. There are two respondents but, once the petition was reduced from ten grounds to three after the first objection to competency hearing, only the first respondent was really required to respond to the petition. The participation of the second respondent, the Electoral Commission, in the trial was largely unnecessary. I acknowledge Mr Dos’s point that one of the two grounds of the petition that were abandoned at the commencement of the trial required the attendance of one Electoral Commission officer. However, I will exercise my discretion to order that the Electoral Commission bear its own costs. The costs orders made in the two objection to competency hearings in Waigani will remain in force.

ORDER

(1)	The petition is wholly dismissed.

(2)	The petitioner shall, subject to any specific costs orders made during the proceedings, pay the first respondent’s costs of the petition.

(3)	The second respondent shall, subject to any specific costs orders made during the proceedings, bear its own costs.

(4)	The Registrar shall forthwith transfer to the first respondent the whole amount of the security for costs deposited by the petitioner under s 209 of the Organic Law on National and Local-level Government Elections, which shall be offset against any amount of costs payable by the petitioner to the first respondent.

(5)	The Registrar shall under s 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.  
_____________________________________________________________
Dotaona Lawyers: Lawyers for the Petitioner
Jerewai Lawyers: Lawyers for the First Respondent 
Nicholas Tame Lawyers: Lawyers for the Second Respondent