SC1448

PAPUA NEW GUINEA
[IN THE SUPREME C OURT OF JUSTICE]

SC REVIEW (EP) NO 05 OF 2015

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, 1997

BETWEEN

DAVID ARORE
Applicant
 
AND

JOHN WARISAN
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2015: 20th July & 03rd August

SUPREME COURT REVIEW – ELECTION PETITION – Application for leave to review – Review of National Court decision – National Court upheld petition – Election of successful candidate declared void on account of bribery – Two instances of bribery – Grounds of review – Alleged gross error in trial judge's findings of fact – Whether gross error established – Constitution – Section 155(2)(b) – Organic Law on National and Local-level Government Election – Section 215 – Criminal Code – Section 103.

Cases cited:

Erie Ovako Jurvie v. Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935
Application by Herman Joseph Leahy (2008) SC855
Application of Ludwig Patrick Schulze (1998) SC572
Kasap v.Yama [1998-1999] PNGLR 81
Philomena Kassman v. Kila Igaba & Electoral Commission (2012) SC1211 
Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1244
Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2014) SC1337 
Jim Nomane v. Wera Mori & Electoral Commission (2013) SC1242
Neville Bourne v. Veoto [1977] PNGLR 298
Alphonse Moroi v. Kila Haoda & Electoral Commission (2014) N5834

Counsel:

Mr John Napu, for Applicant
Mr Phillip Waraniki, for First Respondent
No appearance, for Second Respondent

RULING ON APPLICATION FOR LEAVE TO REVIEW

03rd August, 2015

1. MAKAIL, J: Following a re-trial on 25th and 26th May 2015, on 29th May 2015 the National Court at Popondetta constituted by Justice Sakora upheld an election petition and declared the election of the Applicant Mr David Arore as Member for Ijivitari Open electorate in the Northern Province void on account of two instances of bribery under Section 103 of the Criminal Code. As a consequence, a by-election was required.

Principles of Leave

2. On 11th June 2015, Mr Arore filed this application and sought leave to review the decision of the National Court pursuant to Section 155(2)(b) of the Constitution. The power to grant leave to review is discretionary. The principles relevant to the exercise of discretion are settled. Counsel for Mr Arore has correctly cited them in his written submission. The onus is on Mr Arore to show why the discretion should be exercised in his favour. He must establish that there is a meritorious point of law that is arguable and if he is challenging the trial judge's findings of fact, he must show that there is a gross error on the face of the evidence or that the finding of fact is so outrageous or absurd and such a finding will result in injustice: Erie Ovako Jurvie v. Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935; Application by Herman Joseph Leahy (2008) SC855; Application of Ludwig Patrick Schulze (1998) SC572 and Kasap v.Yama [1998-1999] PNGLR 81.

3. Unlike an application for leave to appeal under Section 14 of the Supreme Court Act where the discretion is readily exercised so long as the Applicant is able to, amongst other things, establish an arguable or prima facie case, in an application for leave to review a decision in an election petition case, the discretion is not to be exercised too readily or loosely but after a careful perusal of each proposed ground of review and any relevant material relied upon by the parties. It requires a higher standard of scrutiny of the materials supporting the application before the Court and from such scrutiny, it is established that there is a clear error which has a very high chance of success: Philomena Kassman v. Kila Igaba & Electoral Commission (2012) SC1211; Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1244 and Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2014) SC1337. 

National Court Proceedings

4. In the National Court, the First Respondent relied on two instances of bribery. The first case of bribery is that Mr Arore gave K2,000.00 to Tommy Pukari and told Mr Collin Amoko to go and get the money from Tommy Pukari and think of him. Mr Amoko went and collected the money from Mr Pukari and distributed the money to village people at Hetaga village. He retained K300.00 for himself and his family and voted for Mr Arore.

5. The second case of bribery is that Mr Arore gave K50.00 to Mr Mishael Okasi. The money was given to Mr Okasi's younger brother Allan Tindepa on 08th July 2012 at Barisari village in Popondetta. The next day 09th July 2012 Mr Arore arrived at Barisari village and campaigned.

6. The trial in the National Court was based on affidavit evidence. The First Respondent called two witnesses. They were Mr Amoko and Mr Okasi and they were cross-examined by counsel for Mr Arore. Mr Arore did not call any evidence in rebuttal. The trial judge found that the evidence of these two witnesses was not discredited to such an extent where it rendered their evidence lacking in credibility and reliability and should be rejected. To borrow the words of the trial judge, defence counsel went on a "fishing expedition", and as a result, was unable to put a dent in the evidence of the petitioner's case. 

7. In addition, as Mr Arore did not call evidence to refute the evidence of these witnesses, his Honour found that their evidence was unchallenged. For these reasons, his Honour was satisfied that the First Respondent had proven to the entire satisfaction of the Court that the act of giving money to Mr Amoko and Mr Okasi constituted bribery under Section 103 of the Criminal Code.

Proposed Grounds of Review

8. Mr Arore relied on eight grounds but in submissions and after the Court sought further clarification from his counsel in relation to the specific issues raised in these grounds, it became clear that they raised two main issues for consideration. They are:

8.1. Whether the evidence was sufficient and credible to establish the allegations of bribery; and

8.2. Whether the trial judge should have applied the standard of proof of beyond reasonable doubt? 

Applicant's Submissions

9. It was difficult trying to follow the submission of Mr Arore's counsel because it lacked clarity and was convoluted. As a Court in the adversarial system of justice, it is not its function to conduct an inquiry as to the kind of submissions parties will make in support of their respective cases, save to seek clarification on a point or issue. That function belongs to the parties, whether appearing in person or represented by counsel. On this basis and doing the best as I can to work out the arguments put forward by counsel, the submission can be summarised as follows; Mr Arore attacks the trial judge's finding that the evidence of Mr Amoko and Mr Okasi was not discredited and remained unchallenged on the following grounds: 

9.1. There were inconsistencies in Mr Amoko's evidence. For example, he received K2,000.00 and yet he voted for Mr Arore. When asked during cross-examination if he was a supporter of Mr Arore, he denied. But when pressed further, he admitted that he was. He went further by saying that he ran Mr Arore's campaign in 2007 election and also in the 2012 election.

9.2. Another example is where when asked by counsel as to how much he distributed out of K2,000.00, Mr Amoko said he distributed K20.00 to K40.00 amongst individuals and K200.00 to K500.00 amongst several groups. If that were so, K2,000.00 would not be sufficient to distribute to the people and groups.

9.3. The evidence of Mr Amoko was illogical and did not make sense because even though he claimed that he was bribed by Mr Arore, he did vote for him. 

9.4. Finally, Mr Amoko received the money from a third party, namely Mr Tommy Pukari. Conversely, he did not give evidence that Mr Tommy Pukari gave K2,000.00 to him with the authority or knowledge of Mr Arore. 

9.5. As to Mr Okasi's evidence, he said that he received K50.00 from Mr Allan Tindepa on 08th July 2012 at Basrisari village. He did not say that Mr Arore gave K50.00 to him. On 09th July 2012 Mr Arore arrived at Barisari village. On this evidence alone, and given that it was not alleged that Mr Tindepa gave the money with the authority or knowledge of Mr Arore as required by Section 215(3) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"), the evidence fell short of establishing bribery by Mr Arore.

10. Mr Arore ran his defence on the premise that firstly, Mr Amoko was his supporter and campaigned for him. Based on this acknowledgment, he voted on his free will for him and that is not bribery. Secondly, Mr Amoko's change of position was actuated by malice because he was disappointed that Mr Arore failed to fund his Non-Governmental Organization ("NGO"). 

11. The gist of counsel's submission is that the inconsistencies in the evidence of these witnesses show that their evidence is unreliable and should not have been relied upon by the trial judge to find against Mr. Arore. When the inconsistencies are considered together with logical and common sense, it becomes more doubtful whether the evidence is credible and reliable in order for the trial judge to accept and find against Mr Arore.

12. When the evidence is weighed up on the required standard of proof in bribery cases, which Mr Arore contends, is beyond reasonable doubt as was held by the Supreme Court in Jim Nomane v. Wera Mori & Electoral Commission (2013) SC1242, the evidence fell short of establishing that Mr Arore bribed Mr Amoko and Mr Okasi. 

Lack of Authority or Knowledge

13. I deal first with Mr Arore's submission on lack of authority or knowledge. It can be settled by reference to the pleading in the petition. The petition is in evidence before me. The issue of lack of authority or knowledge must either be pleaded or not pleaded. The question is answered at paragraphs 1 and 7. The allegation was on 14th June 2012 Mr Arore was at the premises of PNG Water Board Manager Ross Sau and Mr Amoko arrived. At paragraph 7, it was alleged that Mr Arore upon seeing Mr Amoko walking into Ross Sau's yard called out in the Pidgin language which can be easily translated into the English language as this: "Collin, your money is with Tommy. Go and see him and collect it and remember its big money. You must not get it and hide it. You take it away and distribute it to the community and think of me."

14. It was further alleged at paragraph 8 that "Collin Amoko walked over to Tommy Pukari who by this time walked towards the 5 door Toyota Landcruiser and opened the rear door of the vehicle. Tommy Pukari pulled out his waist bag and took out K2,000.00 cash, all in K20.00 note denomination/bundles and gave it to him. Collin Amoko took out K60.00 and gave it to the boys who drove him there for their fuel and had the balance of K1,940.00 in cash in his possession."

15. What we have here is a situation where Mr Arore was the person who gave the authority or instruction to Mr Pukari to give the money to Mr Amoko. I am satisfied that there was pleading clearly establishing that the money was given by Mr Pukari with the authority or knowledge of Mr Arore. Further and in any event, paragraph 1 pleads that "The allegations or ground of the Petition is bribery committed by the Respondent (Mr Arore) and by the Respondent's (Mr Arore) agents and/ or servant with the Respondent's (Mr Arore) knowledge or authority" sufficiently connects Mr Arore to the act of bribery. Then evidence was led to prove the allegation and that evidence came from Mr Amoko.

16. The same reasons apply to Mr Okasi's case. Mr Allan Tindepa was the middleman and facilitated the payment on behalf of Mr Arore. This is nothing in this proposed ground to show that a gross error was made by the trial judge in his finding that Mr Pukari and Mr Tindepa acted with the knowledge or authority of Mr Arore when they gave money to these gentlemen to warrant further consideration at the hearing proper.

Inconsistencies, Lack of Logic and Commonsense

17. At the fourth paragraph at page 165 of the transcript of the judgment, the trial judge summarised the evidence of Mr Amoko based on his affidavit. The evidence was that he met Mr Arore, Mr Tommy Pukari, and others at the residence of PNG Water Board Manager, Ross Sau. Mr Arore was there and when he saw Mr Amoko he toled him to go and see Mr Tommy Pukari and get K2,000.00 from him. Mr Arore also told Mr Amoko that it was a big amount of money and that he must share with others and remember him.

18. Evidence of a witness may be regarded as lacking in credibility and reliability if the evidence in chief is contradictory. Another instance is where it is inconsistent with other evidence, for example, evidence of other witnesses. Contradictory evidence may be found in the evidence in chief of a witness or elicited from cross-examination of the witness. Cross-examination of a witness is an effective way of eliciting contradictory evidence and if a party is represented by counsel, it is the duty of counsel to ask questions that will elicit the contradictory evidence so as to impeach the witness's credibility. The contradictory evidence or inconsistencies must relate to the facts constituting the elements of the cause of action in a civil proceeding or elements of an offence in a case of a criminal proceeding because not all inconsistencies render a witness's evidence unreliable.
 
19. In the case of Daniel Bali Tulapi, the Court refused leave sought by Mr Tulapi. That was a case where both sides called evidence and the evidence matched. Mr Tulapi's counsel had the opportunity during cross-examination to discredit the evidence of the winning candidate and Electoral Commission's witnesses in relation to their denial of bribery of polling officials by the winning candidate. In pointing out the significance of the purpose of cross-examination, this is what the Court said:

"36. ..........................rules of evidence and techniques of trial are essential in achieving a successful outcome for a party's case, whether it is the prosecution or defence. One of them is the success in destroying a party's case in cross-examination. No matter how strong and impeccable a witness can be in his or her evidence in chief, the credibility and reliability of the evidence can be destroyed or diminished if cross-examination of the witness reveals inconsistencies, conflicting accounts and admissions. It is also a tool used by counsel to test the temperament of the witness. A lack of credibility may not be easily attributed to a cool and calm witness as opposed to an aggressive and hot headed witness in cross-examination.

37. An effective and successful cross-examination of an opponent's witness that destroys or discredits the credibility and reliability of the witness' evidence is essential to the party's case if both side's evidence are on equal footing, strong and impeccable."

20. This case is different to that case, in that, Mr. Arore called no rebuttal evidence but the same principle applies. The onus is on counsel to elicit inconsistencies in the evidence of the petitioner's witnesses during cross-examination. Counsel for the First Respondent submits that Mr Arore did not point to a gross error in the trial judge's finding of facts. Mr Arore's submission that the evidence of Mr Amoko contained inconsistencies elicited from cross-examination is minor because it is not relevant to the issue. This is because Mr Amoko's denial and subsequent admission of being a supporter and further, a campaigner for Mr Arore did not diminish the credibility if Mr Amoko's evidence that he received K2,000.00 from Mr Arore and voted for him. 

21. If we were to get to the specifics of the allegation and its proof, the allegation is that Mr Arore bribed Mr Amoko with K2,000.00 and Mr Amoko voted for him. The further allegation that Mr Amoko subsequently distributed it to others persons and groups is irrelevant because the allegation of bribery is not made against the other persons or groups but Mr Amoko. He was the person who received the money. Further and in any case, evidence at trial came from Mr Amoko only. None of the other persons or groups who received money from Mr Amoko gave evidence. 

22. The law based on Section 215(3) of the Organic Law on Elections is that proof of one instance of bribery is sufficient to void an election or return of a successful candidate. It is for this reason that the inconsistency in relation to the amount distributed to persons and groups is minor and if at all, irrelevant. This also explains why the trial judge said that defence counsel went on a "fishing expedition" an as a result was unable to put a dent in the evidence of the petitioner's witnesses.

23. If defence counsel intended to discredit Mr Amoko as a witness of truth, cross-examination should have focussed on the meeting at Ross Sau's residence where Mr Arore was said to have told Mr Amoko to go and see Mr Pukari who was in a motor vehicle and get his money and distribute to the people and think of him. Counsel did not ask questions about that meeting and about what Mr Arore had told Mr Amoko so as to contradict his evidence. 

24. For instance, from my reading of the trial judge's judgment, there is no record of Mr Arore's counsel suggesting to Mr Amoko that he lied when he said that Mr Arore told him to go and see Mr Puakri and get his money. Similarly, there is no record of an admission by Mr Amoko that he lied when he said that. The failure by counsel supports the trial judge's conclusion that the defence counsel did not do enough at cross-examination to impeach the evidence of the petitioner's witnesses. 

25. At paragraph 5 on page 166 of the transcript of the judgment, the trial judge summarised the evidence of Mr Okasi. It was on the events of the night of 02nd July 2012 at Barisari village. Then on 08th July 2012 cash and other food items and also T- Shirts depicting the photograph of Mr Arore were distributed. Mr Okasi received K50.00 from Mr Tindepa. On 09th July 2012, Mr Arore attended Barisari village which was the day of polling. 

26. On the evidence, the submission that given that Mr Arore arrived at Barisari village after Mr Okasi received the money does not diminish the credibility of Mr Okasi's evidence. This is because there was further evidence of food items and most importantly T-Shirts depicting the photograph of Mr Arore distributed at the material time and this evidence was not discredited in any sharp or form. For example, it was not put to Mr Okasi during cross-examination that he lied when he said that food items and T-Shirts depicting the photograph of Mr Arore were distributed and he admitted it. If that were so, it would certainly cast doubt as to the credibility of his evidence.

27. For these reasons, I am not satisfied that Mr Arore's counsel had done enough to discredit Mr Amoko and Mr Okasi during cross-examination and I agree with the First Respondent's submission that Mr Arore has failed to demonstrate a gross error in the trial judge's findings of fact.

Unchallenged Evidence

28. A further reason is this. I accept counsel for the First Respondent's submission that the trial judge was satisfied that the evidence given by Mr Amoko and Mr Okasi was unchallenged. This is because there was no evidence from Mr Arore to contradict or rebut these witnesses' evidence. Mr Arore had the opportunity to call rebuttal evidence but for reasons only known to himself, he did not, although according to the transcript of the trial judge's judgment, it was suggested that he was drunk on the date of trial. 

29. The failure by Mr Arore to call rebuttal evidence needs to be explained. In any legal proceedings, the defence has a right to call rebuttal evidence. The defence has two options: exercise it or waive it. If it waives it, it may be that the evidence against it is so bad and insufficient that it may result in the prosecution failing to prove the allegation on the required standard of proof.

30. In this case, counsel for Mr Arore did not submit that the reason for the defence electing not to call rebuttal evidence was because the petitioner's evidence was so bad and insufficient to sustain the bribery allegations. That being that case, the evidence before me in the form of the transcript of the trial judge's judgment suggests that it was more to do with Mr Arore's mental state of mind at the material time; he had voluntarily intoxicated himself. But what is more difficult to accept is, if that was the state of affairs at the material time, Mr Amoko and Mr Okasi in their respective evidence did mentioned names of persons who were present when they received the money. 

31. At paragraph 4 of page 174 of the transcript of the trial judge's judgment, after noting that the evidence of Mr Amoko and Mr Okasi stood unchallenged, the trial judge said that these witnesses gave names of persons, description of motor vehicles and places and despite the information, none of the named persons was called to give evidence for the defence. The notable ones and should be the first to turn up are Mr Tommy Pukari and Mr Allan Tindepa. These were the persons who gave the money to Mr Amoko and Mr Okasi respectively. They did not. 

32. The consequence is that, the evidence of these two witnesses was unchallenged. This Court in the exercise of its review jurisdiction under Section 155(2)(b) of the Constitution is not going to conduct a trial as if it were a Court of first instance. The opportunity was given to Mr Arore to exercise his right to call rebuttal evidence and he let it slip away. He cannot now complain about the trial judge's assessment of the evidence and acceptance of the petitioner's witnesses' evidence. What he is attempting to do is asking the review Court to conduct a re-trial. This is not a function of this Court.

33. I am not satisfied Mr Arore has shown that a gross error is apparent in the trial judge's assessment of the evidence nor is the trial judge's finding that the giving of money to Mr Amoko and Mr Okasi constituted an act of bribery sufficient to raise an arguable point that it is so outrageous or absurd that leave ought to be granted to review the finding.

Burden of Proof

34. Finally, turning to Mr Arore's contention that the burden of proof in a bribery case is beyond reasonable doubt, the Supreme Court in Jim Nomane v. Wera Mori (supra) did not hold that the burden of proof is as what Mr Arore contends. Counsel's submission on that point is incorrect and I hope counsel is not deliberately misleading the Court. That case pointed out the different cases of bribery and the constituent elements of the offence that firstly, must be pleaded and secondly, proven under Section 103 of the Criminal Code. For this reason, it does not support Mr Arore's proposition that an error is apparent when the trial judge did not apply the standard of proof of beyond reasonable doubt in this case.

35. The standard of proof applied in an election petition where bribery is alleged is not as high as the proof of beyond reasonable doubt and not as low as on the balance of probabilities but to the entire satisfaction of the Court. Counsel for the First Respondent submits that this was the standard of proof applied by the trial judge and this is consistent with Neville Bourne v. Veoto [1977] PNGLR 298. I accept this submission. This has been the standard of proof applied in many election petition cases where bribery is alleged, including Alphonse Moroi v. Kila Haoda & Electoral Commission (2014) N5834. Apart from the Supreme Court decision in Jim Nomane v. Wera Mori (supra), counsel for Mr Arore did not further refer to a Supreme Court decision which overruled the prevailing standard of proof. There is no merit in this proposed ground.

Conclusion

36. In conclusion, having carefully examined the proposed grounds of review and the relevant material relied upon by Mr Arore, I am not satisfied he has discharged the burden bestowed on him for the discretion to be exercised in his favour. 

Order

37. The orders of the Court are:

1. The application for leave to review is refused.

2. The Applicant shall pay the First Respondent's costs of the proceedings, to be taxed, if not agreed.

3. The security deposit of K5,000.00 held by the Registrar shall be released and paid to the First Respondent as part payment of his costs.

________________________________________________________________
Napu & Company Lawyers: Lawyers for the Applicant
Wariniki Lawyers & Consultants: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent