SC1277

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
 
SCR (EP) NO. 19 OF 2013
APPLICATION UNDER SECTION 155 (2) (b) OF THE CONSTITUTION

AND:

IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:

AIDE GANASI
Applicant

AND:

SALI SUBAM
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Davani, David, Kassman .JJ
2013: 29th August
26th September

REVIEW – Election Petition hearing – Election declared null and void – allegations of bribery – elements of the offence of bribery – evidence to be called - onus of proof – Petitioner bears that onus – same or nearly as close to criminal standard

REVIEW – affidavits filed – statements in affidavit – not sufficient to prove who an elector is – Rule in Browne v. Dunn – not to be interpreted in isolation of production of the common roll

Facts

The applicant seeks a review of the trial Judge's order in EP 59 of 2012 where the trial Judge declared void the election of the first respondent as the member for South Fly. In that decision the National court also ordered a by election for the South Fly Open seat. The applicant sought a review of that decision because the trial Judge had not called for the common roll to prove that the people who were allegedly bribed were electors with the meaning of s. 3(1) of the Organic Law on National and Local Level Governments. The applicant also seeks a review because the various elements of the offence of bribery under s. 103 of the Criminal Code had not been proven beyond reasonable doubt. Additionally, the applicant claims that the trial Judge erred when he relied only on s. 103 of the Criminal Code to make a finding when he should have referred also to s. 215 of the Organic Law on National and Local Level Government Elections which would have formed the basis of his findings to declare void the elections of the South Fly Electorate. Finally, the trial Judge also found that because the applicant's lawyer did not cross-examine the Respondents' witnesses on the statements they made in their affidavits that they were electors, that they had breached the rule in Browne v. Dunne, and so he found for the respondent, declaring the applicant's elections, null and void.

Held;

1.	An elector is defined by section 3 (1) of the Organic Law as "a person whose name appears on a roll as an elector". The Criminal Code Section 98, defines an elector as "includes any person entitled to vote at an election". Therefore, the person who is entitled to vote at an election is the person whose name appears on the common roll as an elector. He is the person, when bribed or induced, is deemed to be an elector if evidence is called to show that his name is on the common roll.

2.	Evidence of the common roll is necessary and is a material element that must be proved in an allegation of bribery in an election petition. The Common roll in respect of the persons allegedly bribed must be produced to prove that they were electors. 

3.	Even if the common roll is tendered, the person must still identify his name on the common roll. If his name is not on the roll or another name is used, then obviously, he is not an elector. And this is because only electors can be bribed to vote in a certain way.

4.	Any party seeking to rely on s. 103 of the Criminal Code, must set out the sub provision of s. 103 that they rely on because the elements in these sub provisions are not the same and must each be proven.

5.	A Petitioner must plead the sub provisions of s. 215 of the Organic Law on National and Local Level Government Elections or the facts relating thereto, more particularly the winning candidates "knowledge" and "authority" of what his supporters were doing.

6.	The trial Judge's interpretation of the rule in Browne v. Dunn is misconceived in that the trial Judge failed to take into account the fact that in an election petition matter, where bribery is raised, all the elements of the offence must be proven by credible evidence and proven beyond reasonable doubt, before it can be held to have been proven. 

7.	The trial Judge should not consider the issue of the lack of cross-examination in isolation to the related issue of who an "elector" is.

Cases cited
Papua New Guinea Cases

Neville Bourne v. Manasseh Voete [1977] PNGLR 298
State v. Minjipa [1977] PNGLR 283
State v. Stephen Isaac Awoda [1983] PNGLR 83
Raymond Agonia v. Albert Karo [1992] PNGLR 463
State v. Simon Ganga [1994] PNGLR 323
Charlies Luta Miru v. David Basua and Others (1997) N1628 
Application of Ludwig Shulze (1998) SC 572
Ben Micah v. Ian Ling Stuckey [1998] PNGLR 151
Dick Mune v. Anderson Agiru (1988) SC 590
Mathias Karani v. Yawa Silupa (2003) N2385
Koimanrea v. Sumunda and ors (2003) N2421
Paru Aihi v. Sir Moi Avei (2004) N2523
Application by Herman Leahy (2006) SC 855
Peter Wararu v. Gabriel Dusava (2009) SC 980
Sir Arnold Amet v. Peter Charles Yama (2010) SC 1064
Peter Isoaimo v. Paru Aihi and Ors (2012) N4921
Leonard Louma v. Tomuriesa (2012) N4920
Daniel Bali Tulapi v. Aiya James Yapa Lagea (unreported and unpublished decision of Chief Justice dated 3rd August, 2013)
Pila Niningi v. Electoral Commission & Ors (unreported and unpublished decision of Chief Justice Injia dated 9th August, 2013)

Overseas Cases

Browne v. Dunn (1893) 6R67 (HL)
Reid v. Kerr (1974) 9 SASR 367

Counsel: 

Mr A. Manase, for the Applicant
Mr A. Furigi, for the First Respondent
Mr M. Kuma, for the Second Respondent

DECISION
26th September, 2013

1.	BY THE COURT: Before the Court is Application for Review ('Review') filed by Twivey Lawyers on 26th April, 2013, for and on behalf of the applicant. The Review is supported by the Electoral Commission, second respondent.

2.	The Review seeks to review the decision of the National Court in EP No. 59 of 2012, decision delivered on 27th February, 2013 where the National Court ordered as follows:

"i. that grounds 16 and 17 of the Petition are upheld, the Court having found the first respondent ('the Applicant'), had committed bribery under Section 103 (a) (i) (ii) (iii) (d) of the Criminal Code Act, and that this was likely to affect the election results and thus the election of the first respondent as member for South Fly is declared void.

ii. That a by-election be held for the South Fly Electoral seat.

iii. That the Petitioner's security deposit of K5,000.00 be refunded.

iv. The question of costs is reserved and may be pursued by application by notice of motion."

3.	The relevant paragraphs of the Petition being challenged, pars. 16 and 17 read as follows;

"Paragraph 16.

On 23rd June, 2012 at Togo village along the Pahoturi River, in the presence of Ledo Buia, a Women's Fellowship Leader of Maze Memorial Church and other voters gathered, the Respondent and his campaign team gave K300 in cash to the community with the intention to induce the voters to vote for the Respondent. Dickson Wake and Gud Sub, both voters, received cash on behalf of the community. The Respondent told the community that the money was to buy rice, flour, sugar and other items to be cooked and had at Kulalae village on 29th June, 2012, the polling day. In his campaign speech the Respondent told the voters to lock in all number one preferences for him. Ledo Buia heard the Respondent say he had been all over South Fly District distributing cash and special reference was had to Suke tribe and their communities who had already received over K20,000.00 in cash.

Paragraph 17.

On 24th June, 2012 between 10:00am and 12:00pm at Banap village Ward 16, Oriomo Bituri Local Level Government Council area, the Respondent in the company of his campaign team gave K180 in cash to Anau Bazu Buia, Chairman of the Pahoturi Circuit of the United Church, a voter, and told him to buy sugar, tea leaf and other food items to be used at the polling on 29th June, 2012 at Kuala village with the intention to induce voters to vote for the Respondent."

4.	Although there were 6 grounds pleaded in the Review, the applicant only pursued grounds 1, 2, 3 and 5. They read as follows:

GROUND (1)

The Judge fell into error of law and fact at paragraphs 48 and 49 of the decision where in the analysis of the allegation of bribery against the Respondent (Applicant), the Judge relied on the case of Peter Isoaimo v. Paru Aihi & Ors. by not distinguishing that:-

(i) The Petitioner in the case of Peter Isoaimo v. Paru Aihi & Ors and the Court had the benefit of the Ward Roll and that the person had in that manner was proved to be registered in the Roll as an eligible elector.

(ii) In the Petition against the Respondent (Applicant), the Petitioner (Respondent) had not filed in Court evidence of the Ward Roll and the Writ and that the Court accepted that the witnesses or person allegedly bribed as an eligible voter on the mere statements in the witness affidavit.

GROUND (2)

The Judge fell into error of law and fact at paragraph 51 of the decision where His Honour stated that he was satisfied beyond reasonable doubt that the sum of K300.00 given by the Respondent (Applicant) to one Gudu Sum, a witness for the Petitioner (Respondent) amounted to bribery as defined by section 103 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections when-

(i) His Honour had stated the rule in Browne vs. Dunn too strictly to the extent that he failed to insist on the Petitioner (Respondent) to satisfy each and every element of section 103 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.

(ii) His Honor failed to satisfy himself in the first instance that there was evidence produced by the Petitioner (Respondent) did establish a prima face case against the Respondent (Applicant).

(iii) There was no evidence from the Petitioner (Respondent) to prove beyond reasonable doubt that Gudu Sub, a witness for the Petitioner (Respondent) was an elector within the meaning stated in section 3(1) of the Organic Law on National and Local Level Government Elections thereby rendering a finding of bribery under section 215 of the Organic Law and Local Level Elections inconclusive and or unreachable."

 GROUND (3)

"The Judge fell into error of law and fact at paragraph 52 of the decision where he found the Respondent (Applicant) had committed the offence of bribery under section 103 (a) (i) (ii) (iii) and (d) of the Criminal Code Act and upheld ground 16 of the Petition in that-

(i)	Section 103 of the Criminal Code Act cannot be used to uphold a ground of a Petition, as a Petition is a challenge against a Constitutional process such that it is only the provision(s) of a Constitutional law that could be applied to uphold ground 16 of the Petition and to challenge a constitutional process.

(ii)	In so finding that bribery under section 103 (a) (i) (ii) (iii) and (d) of the Criminal Code Act had been made out, His Honour failed to find that it contravened section 215 (1) of the Organic Law on National and Local Level Government Elections in order to uphold ground 16 of the Petition and to void the election for the South Fly Open Electorate.

(iii)	The offence of bribery under Section 103 of the Criminal Code Act amounts to a misdemeanor and is not an offence under the Organic Law on National and Local Level Government Elections to enable His Honour to uphold ground 16 of the Petition.

(iv)	Section 103 of the Criminal Code Act and the Act itself is a subordinate legislation being an Act of Parliament and must be read subject to the Organic Law on National and Local Level Government Elections particularly sections 3(1) and 215(1). It cannot be applied to uphold a ground of a Petition or to vitiate or void an election.

(v) There is no legal basis to uphold ground 16 of the Petition except section 215(1) Organic Law on National and Local Level Government Elections however, which was not applied by the Court.

GROUND (5)

The Judge fell into error of law and fact at paragraph 59 of the decision where His Honour concluded that it has been proven beyond reasonable doubt that the Respondent (Applicant) committed the offence of bribery under section 103 (a) (i) (ii) (iii) and section 103 (d) of the Organic Law on National and Local Level Government Elections by conferring K300.00 to Gudu Sub for himself and Togo villagers when-

(i) Section 103 of the Criminal Code Act cannot be used to uphold a ground of a Petition, as a Petition is a challenge against a Constitutional process such that it is only the provisions(s) of a Constitutional law that could be applied to uphold ground 16 of the Petition and to challenge a constitutional process.

(ii) The breach of Section 103 of the Criminal Code Act amounts to a misdemeanor and is not an offence under the Organic Law on National and Local Level Government Elections to enable His Honour to uphold ground 16 of the Petition.

(iii) Section 103 of the Criminal Code Act and the Act itself is a subordinate legislation being an Act of Parliament and must be read subject to the Organic Law on National and Local Level Government Elections particularly sections 3(1) and 215(1). It cannot be applied to vitiate or void an election.

(iv) There is no legal basis to uphold ground 16 of the Petition except section 215 (1) Organic Law on National and Local Level Government Elections however, which was not applied by the Court, and

(v) Section 103 is not a provision of the Organic Law on National and Local Level Government Elections hence; there is no legal basis to uphold ground 16 of the Petition by the provision of this Law.

5.	The orders sought in the Review are:

(a) the decision of the National Court the subject of this Review, dated 27th February, 2013 be brought up and quashed in its entirety;

(b) the Election Petition EP No. 59 of 2012 be dismissed;

(c) the first and second respondents pay the applicant's costs of this Review and its cost of all proceedings in both the Supreme Court and the National Court associated with and incidental to Petition EP No. 59 of 2012.

Grounds of Review

6.	 The jurisdiction to hear and determine election petitions filed pursuant to the Organic Law on National and Local Level Government Elections ('Organic Law') is a special one conferred on the National Court. Section 220 of the Organic Law specifically prohibits appeals to the Supreme Court on a decision of the National Court. Hence, the discretion under Constitution, s. 155(2) (b) is a judicial discretion which must be exercised on proper grounds.

7.	Judicial Review by the Supreme Court is only allowed upon satisfaction of the following criteria:

(i) if there are important points of law for determination by the Supreme Court which are not without merit.

(ii) There is gross and glaring error apparent on the face of the evidence before the National Court which is outrageous or absurd to occasion injustice such that the National Court should not have arrived at the decision on the facts as it has done. (Application by Herman Leahy (2006) SC 855; Application of Ludwig Shulze (1998) SC 572)

8.	The 4 grounds of review raise 2 principle issues. These are, firstly, as to when and how a person can be an eligible elector. Secondly, whether the offence of bribery and illegal practices defined by section 103 of the Criminal Code Act and s. 215 of the Organic Law respectively, were proven and if not, how that can be done. The related issue of cross-examination and the rule in Browne v. Dunn is also discussed. We address all the grounds and issues together as they are similar but under separate issues.

(i)	First issue - who is an elector?

9.	This issue arises because of allegations made by the respondent in his Petition before the National Court, that the villagers, who received cash as a bribe, were electors and therefore, were induced to vote. Paragraphs 16 and 17 of the Petition relate to incidents at Togo village along the Pahoturi River on 23rd June, 2012 and at the Banap village, ward 16 on 24th June, 2012. In relation to the incident at Togo village, the Petitioner ('Sali Subam') alleges that the respondent and his campaign team gave K300.00 in cash to the community with the intention of inducing certain voters to vote for the Applicant ('Aide Ganasi'). The Petition states further that Dickson Wake and Gudu Sub, both voters, received the K300.00 on behalf of the community.

10.	In ground 1 of the Review, the applicant Aide Ganasi pleads that the trial Judge erred in both law and fact at paragraphs 48 and 49 of his decision in his analysis of the allegations of bribery where he relied on the case Peter Isoaimo v. Paru Aihi & Ors (2012) N4921 and where he failed to distinguish that in Peter Isoaimo, the Court had the benefit of the ward roll and that the person bribed in that matter was registered on the roll, therefore an eligible elector. 

11.	Ground 1 alleges further that the respondent in this case, did not file any evidence of the ward roll and that the Court relied merely on witnesses statements made in their affidavits that they were eligible to vote. I discuss the implications of these statements, further below.

12.	In his reasoning, the trial Judge said at pars. 35 and 36 of his reasons that there was evidence before the Court, for the Respondent in the Court below that those who received the cash of K300.00 were electors. These are the affidavits of Anu Bazu Buia sworn on 10th October, 2012 which is tab 8 of the Review Book; Affidavit of Gudu Sub sworn on 10th October, 2012, tab 7 of the Review Book and Affidavit of Ian Dabu sworn on 10th October, 2012, tab 6 of the Review Book, which all state "1. I am an eligible voter who voted in the 2012 National Elections for the South Fly River Open Electoral and the Western Provincial Seat…". The trial Judge found that this statement had not been disputed in any way by the applicant in the court below and that therefore, the affidavits and statement therein is good evidence and is sufficient to prove that they were eligible voters.

13.	In relying on Peter Isoaiomo v. Paru Aihi & Ors (supra), the trial Judge neglected or failed to ascertain by evidence, that the recipient of the supposed bribe must be an elector and that strict proof of an elector is required. That is the requirement at law. The law on this issue is settled. One such case is Ben Micah v. Ian Ling Stuckey [1998] PNGLR 151 (N1791). In that case, it was alleged that an elector John Ngumaravis was given K100 as a bribe. He gave evidence that his name was on the common roll. However it was later found by the Court that the name John Ngumaravis was not on the common role. He then said he voted under the name Vatlogo Melewai which name was on the roll and that was his name. However, the real Vatlogo Melewai appeared in Court and confirmed that Vatlogo Melawai was his name. The Court called for the common roll for Kavieng Open Electorate to be brought in and noted that no one by that name was registered under Narimlavas as an elector for the Electorate in the 1997 National Elections.

14.	An elector is also defined by section 3 (1) of the Organic Law as "a person whose name appears on a roll as an elector". The Criminal Code Section 98, defines an elector as "includes any person entitled to vote at an election". Therefore, the person who is entitled to vote at an election is the person whose names appears on the common roll as an elector. He is the person, when bribed or induced, is deemed to be an elector if evidence is called to show that his name is on the common roll.

15.	As was held in Ben Micah v. Ian Ling Stuckey (supra) and later, in Leonard Louma v. Tomuriesa (2012) N4920, the Court held that evidence of the common roll is necessary and is a material element that must be proved in an allegation of bribery in an election petition. The Court in those cases held further that the Common roll in respect of the persons allegedly bribed must be produced to prove that they were electors. In Leonard Louma because the common roll was not produced, the trial Judge dismissed several grounds in the Petition and eventually, the Petition itself.

16.	The law is that even if the common roll is tendered, the person must identify his name on the common roll as was done in Ben Micah. If his name is not on the roll or another name is used, then obviously, he is not an elector. And this is because only electors can be bribed to vote in a certain way.

17.	In this matter before us, the trial Judge in the Court below did not make any findings as demonstrated above, rather, said that "…the petitioner's witnesses' affidavits tendered as evidence they (Ian Dabu, Gudu Sub and Anna Bazu Buia) stated that they are eligible voters and voted in the 2012 National Elections. The first respondent and the second respondent took no issue with that aspect of evidence. It was not a disputed fact…" (pg. 99 of Review Book and pg. 22 of trial Judges' reasons for decision). The trial Judge effectively accepted at face value, the statements made by the above-named witnesses without verifying against the common roll, that their statements under oath, were correct, which was what occurred in Ben Micah v. Ian Ling Stuckey (supra).

18.	Because the electoral roll of the Electorate or the roll of the Council Ward in which the petitioners/ witnesses were enrolled, was not tendered into evidence and verified by the Court, we find this was a fatal error not only by the Petitioner's lawyers, but by the trial Judge as well because the important element of an 'elector', was not proven.

19.	The National and Supreme Courts have always held that this is a critical element that must be proven if allegations of bribery by a successful candidate and his supporters are raised, by a petitioner. One such case is Mathias Karani v. Yawa Silupa (2003) N2385, where Sawong, J said;

"The law in respect of an allegation of undue influence in an election petition for the purpose of s. 208(a) is basically that the facts set out should support the elements of the offence of bribery, as it is constituted by s. 103 of the Criminal Code. Anything short of that will offend against s. 208(a) and therefore will be fatal. See Bourne v. Voete [1977] PNGLR, 298, Agonia v. Karo [1992] PNGLR 463, Charlies Luta Miru v. David Basua and Others [1997] N1628, Ludger Mond v. Jeffery Nape (14th January, 2003), Miria Ikupu v. Sir Mekere Morauta (19th December, 2002) EP 05/02, Moses Murray v. Sir Michael Somare & Others EP 36/2002, Francis Ali v. Frank Oru & Others (EP 37/02).

In Ikupu v. Morauta and Murray v. Somare (supra), the allegations in the petitions were grounded on bribery. But in either case the petitioner failed to plead one essential element of the offence of bribery – that an elector was bribed. The petition referred to "eligible voter" or named a person without saying whether he was an "elector". In either case the Court struck down all the allegations for that reason."

20.	The evidence in the Court below confirms that the trial Judge did not consider this evidence. We find that the trial Judge erred on this important procedural ground in that he did not find that the recipient of the bribe was an elector. In view of that finding, we will uphold ground 1 of the Review.

(ii) Second issue – Did the trial Judge err in his interpretation of the rule in Browne v. Dunn?

21.	This issue is related to issue no. 1 in the sense that grounds 2, 3 and 5 of the Review, plead that the trial Judge erred because he did not have the evidence before him that would have enabled him to find that the allegations of bribery under s. 103 of the Criminal Code and illegal practices under s. 215 of the Organic Law were proven, that would justify the findings and orders he made.

22.	Mr Manase submits that the trial Judge erred (page 51 of his decision) when he attempted to shift the burden of proof to the applicant for failing to comply with the rule in Browne v. Dunn (1893) 6R67 (HL). The trial Judge held and found that because the both respondents in the court below did not put their cases in cross-examination, to the petitioner's witnesses, that it was a clear breach of this rule, which rule is that the party intending to rely on a particular version of facts must put to the witness(es) in cross-examination, those facts, so the witness(es) are given the opportunity to explain their version of facts. The trial Judge found that because counsel for the first respondent in the Court below, did not do this, that he cannot ask the Court to believe what he has failed to put to the Petitioner's witnesses in cross-examination. In making that finding, the trial Judge relied on State v. Minjipa [1977] PNGLR 283; State v. Simon Ganga [1994] PNGLR 323, (paragraphs 35 and 36 of the trial Judge's reasons and tab 12, pages 99 and 98 of the Review Book). The trial Judge held that it would be unfair to the petitioner if he were to accept the first respondent's (applicant in the Supreme Court) submissions that it is a requirement at law to establish the elements in the offence of bribery under Section 103 of the Criminal Code, beyond reasonable doubt. However, s. 103 is a Criminal offence. All Criminal offences must be proven beyond reasonable doubt. All the elements in s. 103 must be established before that ground is deemed proven. And that must be supported by the pleadings and evidence.

23.	Section 103 of the Criminal Code reads:

"103. BRIBERY.

A person who–

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

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

(ii) on account of any person acting or joining in a procession during an election; or

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

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

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

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."

24.	A petitioner alleging bribery must plead the relevant and material facts, constituting the requisite elements of the offence of bribery under any of the sub-provisions of Section 103, being (a) to (g) of the Criminal Code. EP 55 of 2012 – Pila Ninigi v. Electoral Commission & Ors (Unreported and unpublished per of Chief Justice Injia dated 9th August, 2013).

25.	Further, the facts so pleaded, must be proven by credible evidence to then establish the essential elements of the offence of bribery. 

26.	The Petitioner bears the onus of proof to the entire satisfaction of the Court, which is the same or nearly as close to the criminal standard, (see Agonia v. Karo (1992) PNGLR 463, Bourne v. Voeto (1977) PNGLR 298, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980 (Kandakasi, Lay and Gabi .JJ) and EP 20 of 2012; Daniel Bali Tulapi v. Aiya James Yapa Lagea (unreported and unpublished decision of Chief Justice Injia dated 3rd August, 2013)). One of the essential elements that must be proven by evidence is that the recipient of the bribe must be an elector. A strict proof of an elector is required, as discussed above.

27.	In Reid v. Kerr (1974) 9 SASR 367, Wells. J referred to Browne v. Dunn (supra), and said;

"Speaking generally, it is essential to the fair conduct of a trial that a party should be part to each of its opponents witnesses in turn so much of his own case as concerns that particular witness or in which that witness took some part. As a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so that he may have an opportunity of explanation … in the final analysis, it is manifestly unfair to leave unchallenged part of a witnesses' evidence, and then, through another witness, called by the side represented by the cross-examining counsel, to suggest something that is contrary to the first mentioned witnesses testimony or which has never been covered by him there has been a tendency to avoid the implications of Browne v. Dunn (supra) … I regard it as an essential characteristic of the fair trial that the principle embodied in the decision should be strictly adhered to."

28.	As expounded above, in a criminal trial, the accused's case must be put to the State in cross-examination, so the State is aware of the Defence raised by the accused. That is to avoid a situation where, during cross-examination, the accused raises it for the first time e.g as demonstrated in the State v. Stephen Isaac Awoda [1983] PNGLR 83, Kaputin .J said after a trial when assessing the evidence, said;

"… it is in the interests of a fair trial that the Defence must disclose its case at the commencement of the trial.

In this case, Defence said it was raising a general denial. That in itself is not a Defence. He is in fact saying that he did not do it, but what he relies on saying he did not do it, is not made known. It was not until cross-examination that the accused then said he had been drinking at a friend's house and was on his way home when he was apprehended by the Police. Counsel must not conduct their cases in like manner. That is gross and sheer negligence by the lawyer."

29.	In Election Petition hearings where an allegation of bribery is made, the Petitioner must firstly plead the relevant sub paragraph(s) of s. 103 that he relies on. Depending on the sub-paragraph that he relies on, the various elements pleaded therein must be proved by credible evidence to establish the essential elements of the offence of bribery. And the Petitioner bears the onus of proof to the entire satisfaction of the Court which is nearly as close to the criminal standard. As Injia DCJ (as he then was) said in Paru Aihi v. Sir Moi Avei (2004) N2523 dated 26th March, 2004, after a hearing on the substantive EP;

"I should first start by setting out what the law requires in terms of the standard and burden of proof of a bribery allegation in an election petition and the requirement of a bribery allegation which needs proof. The Petitioner…. Carries the burden of proof of the allegation set out in the Petition. In an allegation of a criminal nature such as bribery, the burden is heavier than if the allegations are of a non-criminal nature. Bribery is a serious criminal offence and indeed a very serious allegation to make in an election petition… The standard proof is as the same or should I say close to the criminal standard first set out in re Menyamya Open Parliamentary Elections: Neville Bourne v. Manasseh Voeto [1977] PNGLR 298 at 302 and later adopted in Raymond Agonia v. Albert Karo [1992] PNGLR 463 at 468…".

30.	In Peter Wararu Waranaka, (supra) the Supreme Court reasserted that principle and held that in an election petition alleging bribery, the standard of proof is similar to the criminal standard which is proof beyond reasonable doubt and that the Petitioner has the burden of proof throughout to establish each and every element of the offence of bribery to succeed and that failure would result in the dismissal of the Petition.

31.	Therefore, in answering the issue posed above, we find that the trial Judge's interpretation of the rule in Browne v. Dunn (supra) is misconceived in that the trial Judge failed to take into account the fact that in an EP matter, where bribery is raised, all the elements of the offence must be proven by credible evidence and proven beyond reasonable doubt, before it can be held to have been proven. Although the Applicant's counsel in the Court below did not cross-examine on the contents of the affidavits, more particularly the statement made by the deponents, the trial Judge erred when he considered that issue in isolation and not together with the related issue of who an "elector" is, which would have meant the production of the common roll.

32.	We find that the trial judge erred in that respect because it is not for the Applicant to inform or assist the First Respondent prosecute his case by putting his case to the First Respondent's witnesses.

Issue No. 3: Did the trial Judge err when he made a finding under s. 103 of the Criminal Code and dismissed the Petition without reference to or reliance on s. 215 of the Organic Law?

33.	Grounds 1 and 3 of the Petition, when read together, raise the above issue. Should the trial Judge have referred to or relied on s. 215 of the Organic Law?

34.	In Sir Arnold Amet v. Peter Charles Yama (2010) SC 1064, there is extensive discussion on the elements of s. 215 that must be pleaded and proven. At par. 115, Davani, J quoted Sakora .J in Koimanrea v. Sumunda and ors (2003) N2421 dated 13th March, 2003 which reads;

"In relation to the allegations of illegal practices, there are 3 types of these covered by s. 215. Firstly, s. 215 (1) covers the situation of bribery and undue influence committed by the successful candidate. Second is that alleged to be committed by a person other than the winning candidate with his knowledge or authority (S.215(2)). The third situation concerns any other type of illegal practice, including those defined under the OLNGLE e.g s. 178, committed by anyone including the successful candidate himself (s.178(3)). To prove the s. 215 (3) allegations, the Petitioner needs to plead as required and satisfy the Court according to the required standard, the following;

•	the illegal practice the subject of the complaint; and

•	the illegal practice other than bribery or undue influence committed by the successful candidate, or the illegal practice (including bribery and undue influence) committed by another person but with knowledge and authority of the winning candidate; and

•	the results of the elections is likely to be affected by the illegal practice; and

•	It would be just that the winning candidate be declared not to be duly elected or the election be declared void."

35.	Amet v. Yama (supra), state the elements that must be proven. Did the trial judge consider those elements? At pages 24 to 28 of his reasons, the trial Judge discusses s. 215 of the Organic Law and eventually, found that the allegations of bribery under grounds 11 and 12 were not made out and so dismissed the grounds. It is in fact the affidavits of the 3 witnesses referred to above (Grounds 16 and 17 of Petition) which he relies on in upholding the Petition, reasoning the way he did, as demonstrated above.

36.	Additionally, the trial Judge's reasoning in relation to the proving of all the elements in s. 103 of the Criminal Code and s. 215 of the Organic Law is scanty or non-existent, more particularly for Grounds 16 of the Petition, which is at pars. 51 and 52 of the trial Judge's reasons (pgs 107 and 108 of Review Book). In relation to Ground 17 of the Petition, the brief reasoning of sorts is at par. 56, 57 and 58 of the trial Judge's reasons. (pg 32 of reasons, pg 107 of Review Book). We discuss these further below.

37.	Apart from that, the trial Judge also made incorrect references to the Organic Law and Criminal Code e.g at pg 33 of his decision where, he said "S. 103 (a) (i) (ii) (iii) and section 103(d) of Organic Law on National and Local Level Government Elections". He made that same mistake again at par. 59 of his reasons (pg 32 of Reasons and pg 109 of Review Book).

38.	S. 215 of the Organic Law the provision on Voiding Elections for Illegal Practices, reads:

"215. VOIDING ELECTION FOR ILLEGAL PRACTICES.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(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.

39.	As with any allegation or claim, the claim must be properly pleaded. Although the trial Judge discussed the requirement to plead the elements of s. 215 (pgs 25, 26, 27 and 28 of trial Judge's reasons) he neglects or does not say that the Petition itself, as we have said above, is very scantily pleaded or is devoid of any references to these elements which can be a ground of review in itself but which is not specifically raised or pleaded in the Review. However, what is pleaded in the Review at grounds 3 and 5 is as addressed in the issue – whether the trial Judge should have referred to or relied on s. 215, to then dismiss the Petition. In our view, this comes with the pleading. The Petition did not plead the elements of s. 215 of the Organic Law set out in Amet v. Yama (supra). Coincidentally, the trial Judge did state these elements in his reasons at the pages set out above and which we set out below. 

•	" Under s. 215 (3) (a) of OLNLGE the "knowledge" or "authority" of the candidate as to any illegal act or undue influence is an essential element of the ground.

•	 It must be pleaded that the act relied upon was likely to affect the election result.

•	 It is helpful to plead the number of votes received by the winner and the runner-up to determine whether or not the result was likely to be affected.

•	 It is a requirement that the petition plead that it is just that the results of the election should be declared void.

•	 Where the presence of a winning candidate is relied upon to prove "knowledge" or "authority" it must be alleged that the candidate was present with knowledge or approval or what his supporters would say.

•	 The term "knowledge" or "authority" must denote a pre-existing state of a candidate knowing or authorizing an illegal act or undue influence on his behalf. It must be proven that the candidate willfully encouraged the statement by his supporters.

•	 The presence of a candidate where a statement was made is not by itself evidence that the candidate authorized or had knowledge of what the speaker was going to say."

(See pgs. 25 and 26 of the trial Judge's decision and pgs 102 and 103 of Review Book)

40.	Despite setting out these elements, the trial Judge did not analyze the evidence establishing each of the elements, which we find is a significant error on his part. 

41.	Grounds 3 and 5 of the Review, although not specifically pleading that, plead that s. 103 of the Criminal Code must be read together with s. 215 of the Organic Law which we assume means that a Petitioner seeking to challenge election results on the ground of bribery under s. 103 of the Criminal Code, must also plead s. 215 of the Organic Law, which would then properly form the basis for finding that the election be declared null and void. It is settled law that pleading the law is not necessary. A Supreme Court decision on point is that of Dick Mune v Anderson Agiru (1998) SC590 where it held that: 

"The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers."

42.	We consider that it would suffice only for the facts supporting the elements of s.215 of the Organic Law to be pleaded and proved, however, that it is good pleading practise, to plead the legislation and the relevant section, especially where legal counsel is involved. 

43.	Finally, in relation to s. 103 of the Criminal Code, any party seeking to rely on this provision must set out the sub-provision they rely on because the elements in those sub provisions are not the same and must be proven. E.g the elements to be proven in s. 103 (a) and s. 103 (c) are very diverse and will require credible evidence to prove each one. The Petition must plead that. However, the Petition filed by Furigi Lawyers on 31st August, 2012 which is in the Review Book as tab no. 5 (pgs 14 to 21), does not mention s. 103 of the Criminal Code throughout. Therefore, we find there was no basis on which to make a finding of bribery. The trial Judge clearly erred when he made findings on bribery when the allegations in the Petition were unsupported by a pleading of elements under the relevant sub-provision of s. 103 of the Criminal Code and of course, s. 215 of the Organic Law.

44.	We find that grounds 2, 3 and 5 of the Review must be upheld based on the above reasons.

Orders 

45.	We will uphold all the grounds of the Review and make the following orders;

1. The decision of the National Court the subject of this Review, dated 27th February, 2013 be brought up and quashed in its entirety;

2. The Election Petition EP No. 59 of 2012 is dismissed;

3. The first respondent pay the applicant's costs of this Review and the costs incurred in the National Court, associated with and incidental to Petition EP No. 59 of 2012;

4. The first respondent will pay the second respondent's costs of this Review only, in the Supreme Court.

_____________________________---______________
Twivey Lawyers: Lawyer for the Applicant
Furigi Lawyers: Lawyer for the First Respondent
Parua Lawyers: Lawyer for the Second Respondent