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Sia v Numu [2020] PGSC 68; SC1978 (22 July 2020)

SC1978

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 7 OF 2019

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

SIMON BINTANGOR SIA
Applicant

V

PETER NUMU
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Salika CJ, Cannings J, Shepherd J
2020: 9^th & 22^nd July

ELECTIONS – National Parliament – voiding election on ground of undue influence – Organic Law on National and Local-level Government Elections, s 215(1) – whether offence of undue influence under Criminal Code, s 102 has to be proven.

The third-placed candidate (the applicant) in an election for the National Parliament disputed, in a petition addressed to the National Court, the validity of the election of the successful candidate. The primary ground of the petition was that the successful candidate had committed or attempted to commit “undue influence” and that the election should be declared void under s 215(1) of the Organic Law on National and Local-level Government Elections. The National Court dismissed the petition, holding that “undue influence” had a special meaning in the context of s 215(1), and that its elements were not confined to those that constitute the offence of undue influence under s 102 of the Criminal Code, and that it was not proven according to the standard of proof required in an election petition – to the entire satisfaction of the court – that the successful candidate committed or attempted to commit undue influence. The applicant (the petitioner in the National Court) applied to the Supreme Court for review under s 155(2)(b) of the Constitution of the decision of the National Court. His principal contentions were that the primary Judge erred in law by misdescribing the elements of undue influence, and finding, contrary to the evidence presented at the trial, that the applicant had failed to prove that the first respondent had committed or attempted to commit undue influence on at least one occasion as alleged in the petition (in which four occasions were relied on). In the Supreme Court review, the successful candidate was the first respondent and the Electoral Commission was the second respondent. Both argued that the application should be refused.

Held:

(1) The term “undue influence” in s 215(1) of the Organic Law on National and Local-level Government Elections is a reference to the offence of undue influence in s 102 (undue influence) of the Criminal Code.

(2) For an election to be declared void under s 215(1) the petitioner must plead and prove the elements of an offence of undue influence or attempted undue influence under s 102 of the Criminal Code.

(3) The trial judge erred in law by misdescribing the elements of “undue influence” and insisting on proof of extraneous matters.

(4) However, the applicant failed to establish that if the trial judge had focused on the elements of the offence in s 102 of the Criminal Code, a different conclusion would have been reached, as the evidence presented was insufficient to justify the conclusion that the first respondent had committed or attempted to commit undue influence.

(5) The application was refused and the decision of the National Court was affirmed.

Cases Cited

The following cases are cited in the judgment:

Aita Ivarato v Peti Lafanama (1998) SC563
Benny Diau v Mathew Gubag (2004) SC775
In re Koroba-Lake Kopiago Open, Andrew Wabira v Payale Elo [1977] PNGLR 328
In re Menyamya Open, Neville Bourne v Manesseh Voeto [1977] PNGLR 298
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Robert Kopaol v Philemon Embel (2003) SC727
Simon Bintangor Sia v Peter Numu & Electoral Commission (2019) N7779
Sir Arnold Amet v Peter Charles Yama [2010] 2 PNGLR 87

APPLICATION

This was an application for review under s 155(2)(b) of the Constitution of a decision of the National Court on an election petition.

Counsel

I Molloy & P Othas, for the Applicant
H Nii & M Ninkama, for the First Respondent
W Kaum, for the Second Respondent

22^nd July, 2020

1. BY THE COURT: Peter Numu was the successful candidate in the 2017 general election for the Eastern Highlands Provincial seat. Simon Bintangor Sia was the third-placed candidate. Mr Sia disputed, in a petition addressed to the National Court, EP No 77 of 2017, the validity of the election of Mr Numu.

2. The primary ground of the petition was that Mr Numu had committed or attempted to commit “undue influence” under s 102 of the Criminal Code and that the election should be declared void under s 215(1) of the Organic Law on National and Local-level Government Elections, which states:

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.

3. The National Court, constituted by Justice Anis, dismissed the petition on 22 March 2019. His Honour held that “undue influence” had a special meaning in the context of s 215(1), and that its elements were not confined to those that constitute the offence of undue influence under s 102 (undue influence) of the Criminal Code. His Honour held that it was not proven according to the standard of proof required in an election petition – to the entire satisfaction of the court – that Mr Numu committed or attempted to commit undue influence (Simon Bintangor Sia v Peter Numu & Electoral Commission (2019) N7779).

4. Mr Sia was granted leave to apply to the Supreme Court for review under s155(2)(b) of the Constitution of the decision of the National Court. He argues that the primary Judge erred in law by:

• misdescribing the elements of undue influence, and
  
• finding, contrary to the evidence presented at the trial, that he (Mr Sia) had failed to prove, to the entire satisfaction of the court, that Mr Numu had committed or attempted to commit undue influence on at least one occasion as alleged in the petition (in which four occasions were relied on).
  

5. Mr Sia is the applicant in this Supreme Court review. Mr Numu is the first respondent and the Electoral Commission is the second respondent. Both respondents oppose the application.

6. The application can be determined by addressing two issues:

1. Did the trial judge err by misdescribing the elements of undue influence?
   
2. Did the trial judge err by finding that undue influence was not proven?
   
1. DID THE TRIAL JUDGE ERR BY MISDESCRIBING THE ELEMENTS OF UNDUE INFLUENCE?
   

Trial judge’s approach

7. His Honour rejected the proposition that the meaning of undue influence in s 215 of the Organic Law is derived from s 102 of the Criminal Code. His Honour stated:

[13] I refer to the two grounds namely, undue influence and attempted undue influence. The specific provisions that were pleaded together with as particulars in the petition under Part C, were s 215 of the OLNLLGE and s 102 of the Criminal Code. Section 102, in my view, cannot be the source for the allegations of undue influence and attempted undue influence, but rather, it should be s 215(1) of the OLNLLGE. That said, references can be made to s 102 of the Criminal Code for assistance either by the Court or by the parties. I think this is where a lot of confusions arise where Courts try to treat or regard themselves as criminal Courts with criminal jurisdictions. A National Court that is convened under Part XVIII of the OLNLLGE is a special civil Court with civil jurisdiction. See cases: Bryan Kramer v Nixon Phillip Duban and Ors (2013) N5688, John Warisan v David Arore (supra), Mathias Ijape v Electoral Commission of Papua New Guinea (2002) N2437, and in Simon Sia Bintangor v Peter Numu and 1 Or (2018) N7106.

[14] I will also take refuge from s 205 of the OLNLLGE. It reads, and I quote in part:‘Nothing in this Law shall derogate or be deemed to derogate the provisions of the Criminal Code, but a person is not liable to be prosecuted or punished both under this Law and under the Criminal Code for the same offence’. The provision, in my view, expressly distinguishes offences that are specified under the OLNLLGE which a petitioner may prosecute by way of a petition under a National Court that is constituted under Part XVIII of the OLNLLGE, from those offences that are prescribed under the Criminal Code which can be prosecuted by a National Court that is sitting as a Criminal Court. The provision also simply states or implies that if a person is prosecuted for an election related offence under the Criminal Code by a Criminal Court, the provisions of the Criminal Code shall apply irrespective of the provisions for such similar offences that are specified under the OLNLLGE. But s 205 makes a qualification, that is, it states that a person shall only be charged and trialled once for an offence that may be prosecuted under either the OLNLLGE or the Criminal Code. The qualification obviously emphasises s 37(8) of the Constitution, or the defence of ‘double jeopardy’ as it is commonly known under the Fifth Amendment of the Constitution of the United States.

8. His Honour drew on various sources to ascertain the true meaning of undue influence in s 215 of the Organic Law, including the electoral offence of undue influence under United Kingdom Law, the definition of undue influence in Black’s Law Dictionary and in Words and Phrases Legally Defined and the dictionary definition of the word “undue” in Webster’s Dictionary. His Honour also sought guidance from the definition of the offence of undue influence in s102 of the Criminal Code and the way it had been defined in various National Court decisions:

[18] In regard to the case law, I refer to the case of Terry Kajona Okeva v Robert Atiafa (2013) N4993. Justice Kariko held and I quote in part, ‘The offence of undue influence involves an element of force, threat or fraud to influence an elector from exercising his free will in relation to voting at elections’. Justice Kandakasi in the case Ludger Mond v Jeffery Nape (2003) N2318, defines undue influence and I quote in part, It is obvious to me that in order for there to be a case of undue influence, there must be some force, threat or fraud involved for the purposes of securing votes, an election victory by a candidate or otherwise interfere with the proper conduct of elections.

9. His Honour was clearly of the view that the term undue influence in s 215 of the Organic Law had a special meaning, to be derived from its context in the Organic Law, which is not restricted to the elements of the offence of undue influence in s 102 of the Criminal Code. His Honour stated:

[22] With all these, I would summarise the elements or considerations of undue influence or attempted undue influence under section 215(1) as follows:

• the candidate must be identified;
  
• the elector(s) must be identified if the allegation of undue influence relates to or concerns him or her;
  
• and the nature of the allegation(s) the elector(s) alleges was committed to him or her must be established and proven;
  
• if the allegation(s) made is in regard to events where the candidate is alleged to have been involved in, then the event or incident must be identified and proven;
  
• the petitioner may have to prove that the candidate was in a position of authority, control or power over the elector(s) or over the incident(s) alleged at the material time;
  
• the petitioner may have to prove that the elector(s) was at a vulnerable state at the material time or that the incident(s) alleged was susceptible to the control of the candidate at the material time;
  
• the petitioner may have to prove that the elector(s) was affected to exercise his or her free will to vote as a direct or indirect action(s) of the candidate;
  
• the petitioner may have to prove that the incident(s) which had occurred which was alleged to have been caused by the candidate had prevented or had affected the elector(s) or a certain population or group of people, from casting their votes on the scheduled polling date(s);
  
• instances of illegal practices or incidents alleged against a candidate include publications by the candidate or his agents of such (i.e., illegal practice) through printed articles or information by printed press or news, or by electronic devices including CDs, videos, podcasts or publications in the social media;
  
• the incident(s) or allegation(s) alleged should only be those that were alleged to have occurred during the election or polling period.
  

Does undue influence in s 215 of Organic Law mean the same thing as in s102 of Criminal Code?

10. The answer to this question is yes. We uphold the submissions of Mr Molloy, for the applicant, that in rejecting the proposition that undue influence in s 215 of the Organic Law is the same thing as undue influence in s 102 of the Criminal Code, his Honour erred in law.

11. The principle that undue influence in s 215(1) of the Organic Law equates to undue influence in s 102 of the Criminal Code has been part of the electoral law of Papua New Guinea since Independence. Two National Court decisions on petitions from the 1977 general election developed the principle: In re Menyamya Open, Neville Bourne v Manesseh Voeto [1977] PNGLR 298 and In re Koroba-Lake Kopiago Open, Andrew Wabira v Payale Elo [1977] PNGLR 328.

12. Those early decisions, by Frost CJ and Pritchard J respectively, have been adopted and applied in numerous subsequent National Court decisions. Their correctness has been affirmed in two significant Supreme Court decisions: Aita Ivarato v Peti Lafanama (1998) SC563 and Sir Arnold Amet v Peter Charles Yama [2010] 2 PNGLR 87.

13. The same principle applies in relation to the other grounds in s 215(1) of the Organic Law on which an election can be declared void: “bribery” by the successful candidate is the same thing as the offence of bribery in s 103 of the Criminal Code.That principle has been adopted and applied in numerous National Court decisions. Its correctness has been affirmed by the Supreme Court in Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775 and Peter Wararu Waranaka v Gabriel Dusava (2009) SC980.

Elements of undue influence

14. If undue influence is a ground of an election petition, it is incumbent on the petitioner to plead and prove facts that constitute an offence under s 102 (undue influence) of the Criminal Code, which states:

A person who—

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(i) in order to induce him to vote or refrain from voting at an election; or

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

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

15. Section 102 of the Criminal Code actually creates three separate types of offences, under s 102(a)(i), s 102(a)(ii) and s 102(b), each of which contains discrete elements, as follows.

Offence under s 102(a)(i)

It is an offence for a person to:

• use or threaten to use any force or restraint, or
• do or threaten to do any temporal or spiritual injury, or
• cause or threaten to cause any detriment of any kind to an elector; and
  
• in order to induce the elector to vote or refrain from voting at an election.
  

Offence under s 102(a)(ii)

It is an offence for a person to:

• use or threaten to use any force or restraint, or
• do or threaten to do any temporal or spiritual injury, or
• cause or threaten to cause any detriment of any kind to an elector; and
• on account of the elector having voted or refrained from voting at an election.
  

Offence under s 102(b)

It is an offence for a person to:

• by force or fraud; and
• prevent or obstruct the free exercise of the franchise by an elector, or
• [by any such means, ie by force or fraud] compel or induce an elector to vote or refrain from voting at an election.
  

This case

16. The petition was framed, the evidence was presented and submissions were made before the trial judge, to prosecute a case of undue influence under s102(b). It was the applicant’s case in the National Court that Mr Numu was on four separate occasions, making or responsible for use of fraudulent statements to induce electors to vote for him.

17. We uphold the submissions of Mr Molloy that, given that the applicant’s case was based on undue influence by fraud under s 102(b) of the Criminal Code, his Honour should have focused on the elements of that particular undue influence offence and determined whether the applicant had proven them.

18. His Honour should have interpreted and applied “fraud” in the same way Frost CJ described it in In re Menyamya Open, Neville Bourne v Manesseh Voeto [1977] PNGLR 298, which has been universally accepted since then as the correct approach:

Turning to s 102(b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.

Fraud thus means:

• a false statement,
• made to an elector,
• known to be false or without belief in its truth or carelessly, whether it be true or false.
  

19. We agree with the applicant that instead of focussing on whether the contentious statements, most of which were recorded in a video, allegedly made or referred to by Mr Numu on four separate occasions in the course of the election campaign, amounted to “fraud”,as defined by Frost CJ in Menyamya Open, the trial judge diverted his attention to extraneous matters, such as:

• who produced the video?
• when was it produced?
• who distributed the video?
• were the electors to whom the statements were made vulnerable persons?
• did they have special vulnerabilities?
• was Mr Numu in a dominant or controlling position, by virtue of being in the company of armed personnel, over the crowd at his campaign rallies?
• did the statements force any elector to vote for him?
• did the statements amount to a threat, such that an elector would feel compelled to vote for him?
  

Conclusion as to alleged error

20. The learned trial judge erred in law by developing a unique test for undue influence as a ground of a petition under s 215(1) of the Organic Law, and thereby misdescribing its elements. His Honour’s approach, with respect, departed substantially and without justification from precedent, including Supreme Court decisions that were binding on the National Court.

2. DID THE TRIAL JUDGE ERR BY FINDING THAT UNDUE INFLUENCEWAS NOT PROVEN?
   

Applicant’s case

21. Mr Molloy submitted that if the trial judge had applied the correct test of undue influence, by reference to s 102(b) of the Criminal Code, to the evidence and findings of fact his Honour made, the conclusion would have been reached that Mr Numu was guilty of committing undue influence or at least attempting to do so, for the purpose of s 215(1) of the Organic Law. The result would and should have been to declare the election void.

22. We note from the terms of the petition and the evidence before the National Court, that there were on each of four separate occasions, six contentious statements attributed to Mr Numu, alleged to be false statements, giving rise to the allegation of “fraud” in the elements of the offence under s102(b) of the Criminal Code.

Four occasions

23. The four alleged occasions on which Mr Numu made the false statements or connected his statements to a video that contained such false statements or other people had access to the video (which came to be known as the “Peter Numu CD”) were:

• case 1: at 5 pm on 15 June 2017 at Nonambaro village, when amongst others, an elector, Donald Tom Kalimin, attended Mr Numu’s campaign speech and heard the statements and watched the video and was influenced in his choice of voting;
  
• case 2: between 10.00 and 11.30 am on 13 June 2017 at National Park, Goroka, electors, Abraham Rolu and Jerry Kokore, attended Mr Numu’s campaign rally and heard the statements and watched the video and were influenced in their choice of voting;
  
• case 3: on 3 May 2017 at Lopi Market, Goroka, an elector, Joseph Aginime, obtained a copy of the video footage, the Peter Numu CD, and viewed it several times on his mobile phone, and was induced by the fear it created, in his voting;
  
• case 4: between 10.00 and 11.30 am on 15 June 2017 at National Park, Goroka, an elector, Benzie Filele Hupa, attended Mr Numu’s campaign rally and heard the statements and watched the video and was influenced in his choice of voting.
  

Six false statements

24. The statements alleged to be false were that:

(1) he (Mr Numu) organised the UPNG students protest march and led the march to Parliament House;

(2) he burnt the Australia and PNG Government Asylum Seekers Agreement paper;

(3) his friends had told him that he was banned by the Australian Government from travelling to Australia after he burned their flag;

(4) he is a lawyer and a political scientist and represented the rights of the ordinary people and fought at the national and international level;

(5) the asylum seekers who are coming from Australia are not good people, they are dangerous people who build bombs and are likely to commit terrorist acts against Papua New Guinea;

(6) the National Government has introduced the death penalty to kill ordinary Papua New Guineans.

Were any of the statements false?

25. We uphold the submission of Mr Nii, for the first respondent, that the question that must be asked in relation to the six contentious statements, quite apart from assessing whether the statements induced any elector in their voting at the election, and whether it was Mr Numu’s intention for electors to act on the statements, is whether any of them was false.

26. Having considered the transcript of the evidence before the National Court and the findings of fact of the trial judge (and in that regard, we note that the applicant has not challenged the findings of fact), we find that it cannot be objectively concluded that any of the six contentious statements was false.

27. Statements (1) to (4) are statements of Mr Numu’s credentials, which, we consider, he was entitled to proclaim as a way of selling himself to the voters, much like a job applicant tries to sell their credentials in their CV or in the job interview. They are the sort of statements that candidates routinely and legitimately make in the course of an election campaign. We see nothing necessarily noxious or fraudulent in them. Moreover, there was no evidence to suggest that any of them were false, let alone prove that it was not true that Mr Numu had organised the student protest, burned the Asylum Seekers Agreement, been banned from travelling to Australia or was a lawyer and a political scientist.

28. Statements (5) and (6), about the asylum seekers and the risk of terrorism and the government’s motive for introducing the death penalty, can at their highest (or lowest, as the case may be) be regarded as inflammatory, emotional, shrill or irresponsible scaremongering. We are not satisfied that it can reasonably be concluded that either of them is an objectively false statement, on the basis of which the element of fraud in s 102(b) of the Criminal Code could be established. They are statements on matters of controversial public policy, which are legitimately the subject of vigorous discourse during an election campaign. There was no evidence presented at the trial to prove that either of them was false.

Consequence of finding no statements false

29. We agree with Mr Nii that without proof and a discrete finding of fact that any of the six statements was false, Mr Numu cannot be found to have committed undue influence. The consequence is that the trial judge did not err by finding that undue influence was not proven.

30. If the trial judge had applied the correct test of undue influence, by reference to s 102(b) of the Criminal Code, the conclusion would still have been reached that Mr Numu was not guilty of committing undue influence or attempting to do so. The result of the petition would have been the same.

CONCLUSION

31. Though we have found that the learned trial judge erred in his description of the elements of undue influence, we have found that the error had no effect on the outcome of the petition.

32. It would be a pointless exercise and an unfair outcome to remit the petition for a retrial. Even a retrial on the same evidence, giving another judge the task of hearing submissions on whether undue influence was proven would be a cumbersome, time-consuming and unnecessary process. There is no good reason to disturb the order of the National Court. Mr Sia’s application will be dismissed.

33. As to costs, normally they would follow the event and the losing party, Mr Sia, would be ordered to pay all of the costs of the successful parties, the respondents, Mr Numu and the Electoral Commission. However, the respondents did not succeed on all issues and therefore we will order that Mr Sia is liable for paying half of their costs.

ORDER

1. The application for review is refused.
   
2. The order of the National Court of 22 March 2019 in EP No 77 of 2017 is affirmed.
   
3. The applicant shall, subject to any particular costs orders made in the course of these proceedings, pay half of the respondents’ costs of the entire proceedings, on a party-party basis, which shall, if not agreed, be taxed.

________________________________________________________________
Paul Othas Lawyers: Lawyers for the Applicant
Harvey Nii Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent