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Baira v Genia and Electoral Commission [1998] PGSC 47; SC579 (26 October 1998)

Unreported Supreme Court Decisions

SC579

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR NO. 68 OF 1998
BETWEEN: DESMOND BAIRA
APPLICANT
AND: KILROY GENIA & ELECTORAL COMMISSION
RESPONDENTS

Waigani

Kapi DCJ Hinchliffe Jalina JJ
1 October 1998
26 October 1998

PARLIAMENT – Election Petition – Organic Law on the National Elections and the Local Level Government Elections, s 217 – Discretion of the National Court to stop a trial where there is no evidence.

Counsel

N. Kubak for the Applicant

P.R. Payne for the First Respondent

J. Nonggor for the Second Respondent

26 October 1998

KAPI DCJ: Mr Kilroy Genia (hereinafter referred to as the First Respondent) was declared the elected member for the Abau Open Electorate in the 1997 General Elections. Mr Desmond Baira (hereinafter referred to as the Applicant) challenged the result of the elections in an election petition (EP No. 4 of 1997) pursuant to the provisions of Organic Law on the National Elections and the Local Level Government Elections (hereinafter referred to as the Organic Law).

The petition was heard by Andrew J. and on the 28^th April 1998 he dismissed the petition. The applicant has filed a judicial review pursuant to s 155 (2) (b) of the Constitution.

The trial was conducted in respect of paragraphs 4.7, 4.8, 4.9 4.10, 4.11 and 4.12 of the Petition:

“4.7 That Mr Kilroy Genia gave a cheque worth K200.00 to Rigo Kanea on the 14^th May, 1997 at Velama Village in exchange for Mr Kanea’s vote;

4.8 Kalo Vanua, the head of the Committee for Mr Kilroy Genia’s campaign team, gave Mr Rigo Kanea, a sum of K20.00 in cash on the 14^th June 1997 at Wapagai Village, Paramana in exchange for Mr Rigo Kanea’s vote for Mr Kilroy Genia;

4.9 Again, Mr Karo Vanua, the Chairman of Mr Kilroy Genia’s Committee, gave Karo Geno, a sum of K20.00 in cash on the 16^th June, 1997, at Pelegai Village, in exchange for Mr Geno’s votes;

4.10 On the 18^th June, 1997, Vila Ilo, acting on behalf of Mr Geno, gave Vali Vagi of Maopa Kwalu Rage Rage Village, a sum of K20.00 in exchange for his votes for Mr Genia.

4.11 On the 16^th June 1997, Mr Vele Volu received from Mr Karo Vanua, Chairman of Kilroy Genia’s campaign team, a sum of K100.00 cash at Pelagai Village in exchange for Mr Vanua’s vote for Mr Genia.

4.12 On the 10^th June 1997, Mr Kilroy Genia gave Mr Aaron Baro a sum of K1,500 cash at Pelegai Village, in exchange for Mr Baro’s vote for Mr Genia.”

Paragraph 4.12 was amended and is in the following terms:

“On the 15^th of April 1997 Mr Kilroy Genia gave Mr Baro a sum of K1,500.00 in cash in exchange for Mr Baro’s vote for Mr Genia.”

In the National Court, counsel for the applicant sought to prove allegation of bribery in paragraph 4.12 of the petition first. In support of this ground, witness Mr Aaron Baro was called. He simply relied on his affidavit sworn 1^st September 1997. Counsel for the first respondent objected to paragraphs 4 to 14 of the affidavit on the basis that the facts set out in these paragraphs are not relevant to paragraph 4.12 of the Petition. Counsel for the second respondent supported the objection.

Counsel for the applicant really did not address the objection on its merits. He did indicate that if these paragraphs are not admitted, Mr Baro would give oral evidence of bribery in the trial.

The trial judge then made the ruling:

“Objection is taken to the tender in evidence of paragraph 4 to 14 of the affidavit of Mr Aaron Baro. The relevant ground of the petition in which the witness is giving evidence is ground 4.12, namely that on 10 June 1997, Mr Kilroy Genia gave Mr Baro a sum of K1,500.00 in cash in exchange for Mr Baro’s vote for Mr Genia. But paragraph 4 to 14 are concerned with the petitioner giving Mr Baro an amount of money to stand as a candidate. All those paragraphs are concerned with that issue. That is a different issue to the allegation contained in the petition. Accordingly, I do not think that paragraphs 4 to 14 are therefore relevant and accordingly paragraphs 4 to 14 are not admitted into evidence.”

In respect of this ruling, counsel for the applicant submits that the trial judge erred in law in applying strict rules of evidence instead of being guided by substantial merits and good conscience of the case as required under s 217 of the Organic Law.

Counsel for the respondents submit that the onus is on the applicant to show that there are cogent and convincing reasons or exceptional circumstances or clear errors in the trial judge’s reasoning.

It is not necessary to set out all the paragraphs of the affidavit in question. I set out paragraphs 10 to 14 only to give an indication of the nature of the subject matter the paragraphs deal with in the affidavit:

“10. The next day the 15^th April 1997 at about 10:00 am I arrived at Mr Genia’s residence as requested. Although he was present he was otherwise engaged with other people seeing him also that morning and did not see me until approximately 12.00 pm. He called me on to his verandah and gave me K1500.00 cash there and then.

11. On handing me the money he told me to go to Kupiano and nominate and then to come back the following Monday, which was the 21^st day of April 1997 to pick up the vehicle, the outboard motor and dinghy, food supply and more money. He wished me good luck and I left.

12. After leaving I went straight to Koki initially anticipating to go the next day, Wednesday the 16^th day of April 1997. However I decided that I would travel to Kupiano on the last day of nomination, Thursday 17^th April 1997 and effect my nomination.

13. Because word had immediately spread amongst relatives and potential electors for the Abau Electorate, I was confronted by my younger brother Steven Baro. He asked not to stand for the elections because Desmond and I were related and that I should not spoil the relationship. On hearing this I decided to avoid any animosity in the family and chose not to nominate at all.

14. Some unknown person has since confronted me and demanded the repayment of the K1500.00 which money of course I have since used up on other matters.”

These paragraphs deal with payment of money to enable Mr Baro to stand as a candidate for Abau Open Electorate and for related campaign expenses. I cannot find any error in the trial judge’s ruling on the relevance of these paragraphs to the allegation of bribery in paragraph 4.12.

In addition, the decision to exclude these paragraphs did not result in any injustice to the applicant. Mr Baro who was called as a witness and as indicated by counsel for the applicant during the arguments in respect of admissibility of paragraphs 4 to 14 of the affidavit, it was open to him to give evidence of whether or not the money received was in respect of his vote for the first respondent. The record shows that he gave evidence of receiving an amount of K1,500.00 from the first respondent and the purpose was to pay a deposit as a candidate and for related campaign purposes. I agree with the trial judge that this is a different matter from giving money to secure the witness’s vote for the first respondent. I would dismiss this of ground of review.

Counsel for the applicant sought to tender statutory declarations to support the balance of the grounds of petition at the trial. Counsel indicated to the Court that deponents to these declarations had since sworn affidavits which were now in the possession of the respondents, denying that they signed these statutory declarations. Counsel for the first respondent indicated to the Court that they would attack the authenticity of the declarations and that they would call evidence to rebut the statutory declarations. Counsel for the applicant realising his difficulty in relying on these declarations, applied to the Court to compel the attendance of these witnesses under s 212 (b) of the Organic Law. The difficulty with this application was that counsel did not have any address for contact with any of these witnesses and any order by the Court to compel these witnesses would take some indefinite time to actually attend Court.

The trial judge made his ruling (see page 80 of the review book):

“While during the course of the trial, counsel for the petitioner seeks the court to compel the attendance of four persons to give evidence. Those persons are said to be Vele Baro, Vali Vagi, Karo Geno and Rigo Kenea. Mr Kubak says that they previously signed statutory declarations some considerable time ago, I believe last year, said to be July last year. He also says that they have now prepared affidavits on behalf of the first respondent. These persons have not been summonsed by the petitioner despite the matter being fixed for hearing two months ago. I think it is too late now during the course of the trial to seek the court to compel their attendance and now adjourn the court. In these circumstances I do not think the court should run the petitioner’s case and at this stage the court in the midst of this hearing in my view should not interfere and compel the attendance of these witnesses. Application refused.”

It is clear from the record that counsel for the applicant took a decision not to tender the statutory declarations in view of the difficulties raised by the opposition but instead applied to the Court to compel the witnesses. This is a decision he took upon himself and ultimately did not involve any ruling by the Court. The ruling made by the trial judge was in respect of compelling the witnesses to appear in Court. The applicant has not challenged this ruling in the review and is not open to review by this Court. Therefore, I find that the applicant has failed to prove that the decision not to tender the statutory declarations can be attributed to the trial judge. I would dismiss this ground of review.

In dealing with admissibility of the relevant paragraphs of Mr Aaron Baro and the use of the statutory declarations, counsel for the second respondent submits that we should determine the proper meaning and the scope of s 217 of the Organic Law and its application to the present case. However, in view of the conclusions I have reached, it is not necessary to deal with the application of s 217 of the Organic Law to those grounds of review.

Counsel for the applicant relies on another ground, namely, that the trial judge erred in allowing and accepting the submissions by counsel for the first respondent at the close of the petitioner’s case that there was no evidence of bribery (ground 11). In his submissions counsel for the applicant likened these submission to a “kind of a no case submission” as in a criminal case.

The record shows that counsel for the first respondent made submissions at the close of the petitioner’s case to dismiss the petition on the basis that the evidence did not make out a prima facie case of bribery. Counsel for the applicant made contrary submissions in response.

In considering this issue, counsel for the second respondent submits that this Court should give some guidance as to the practice of adopting the equivalent of a no case submission in an election petition. As far as I am aware, the Supreme Court has not addressed this issue before. In my opinion, it would be a mistake to readily adopt a procedure which is applicable to criminal proceedings. The intention of the legislature is clear that proceedings under the Organic Law are different and therefore it is fundamentally wrong to adopt procedures from any other type of proceedings. I adopt the same approach I took in the recent case of Iangalio & Electoral Commission v. Wani Wasi Ranyeta & Miki Kasol (Unreported judgment of the Supreme Court dated 5^th October 1998, SC568) in respect of adopting procedures of consolidation in other civil proceedings. What procedure is adopted for proceedings under the Organic Law is a matter for judges in their law making power to prescribe under s 212 (2) of the Organic Law. As I pointed out in the Iangalio case, Judges have not yet made such rules of procedure. In the circumstances, whether, or not, a judge should stop a case at the close of the petitioner’s case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election.

In the present case, there was no evidence whatsoever in relation to the bribery charges set out under paragraphs 4.7 - 4.11. In the circumstances, it would be futile to allow the trial to go on in respect of these grounds of the petition. There was no substantial merits in the grounds pleaded. I cannot find any error in this.

In relation to ground 4.12 of the petition, the trial judge concluded that there was no evidence of bribery. The difference between this ground and the other grounds is that there was some evidence in respect of some elements of bribery, namely that there was payment of K1,500.00 to Mr Baro but that there was absence of evidence of the essential element of intention to bribe. The elements of bribery are not defined in the Organic Law. The offence of bribery is defined under s 103 of the Criminal Code (Cap. 262). Frost CJ in In re Menyamya Open Parliamentary Election [1977] PNGLR 298 adopted the definition of undue influence in the Criminal Code for the purposes of the Organic Law. I would adopt the definition of bribery in s 215 of the Organic Law. Section 103 (d) defines bribery:

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

In the present case, there was absence of any evidence to show that the first respondent intended to bribe Mr Baro with the payment of K1,500.00. The evidence was that the money was paid to enable Mr Baro to nominate as a candidate and to help him in his campaign. Whether or not this is permissible and whether or not this is a valid ground for invalidating an election is not the ground pleaded in 4.12 of the petition. The allegation is that this money was paid in exchange for Mr Baro’s vote for the first respondent. There is no evidence of intention to bribe. In the circumstances, there was no substantial merits on the ground of bribery to proceed any further in the trial. In my opinion the trial judge was entitled to come to this conclusion within the terms of s 217 of the Organic Law.

I find that the applicant failed to satisfy the Court that there are cogent and convincing reasons or exceptional circumstances or that justice has miscarried in the present case. In the result I would dismiss the review with costs to the respondents.

HINCHLIFFE J: I agree with the decision and orders proposed by Kapi DCJ and I have nothing further to add.

JALINA J: I agree with the decision and orders proposed by Kapi DCJ and I have nothing further to add.

Lawyers for the Applicant: Kubak

Lawyers for the First Respondent: Blake Dawson & Waldron

Lawyers for the Second Respondent: Nonngorr & Associates