Alphonse Moroi v Kila Haoda

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 05 December 2014
• Citation: (2014) N5834
• Court: National Court
• Year: 2014
• Judgement Number: N5834

Full : EP NO 67 OF 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Central Province Regional Seat; Alphonse Moroi v Kila Haoda and Electoral Commission of Papua New Guinea (2014) N5834

National Court: Makail, J

Judgment Delivered: 5 December 2014

N5834

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 67 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE CENTRAL PROVINCE REGIONAL SEAT

BETWEEN

ALPHONSE MOROI

Petitioner

AND

KILA HAODA

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2014: 01st, 04th & 05th December

ELECTION PETITION – Trial – Allegations of bribery – Bribery by successful candidate – Giving of cash of K500.00 to voters – Proof of – Organic Law on National and Local-level Government Elections – s. 215 – Criminal Code – s 103.

Cases cited:

Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295

Neville Bourne v. Veoto [1977] PNGLR 298

Paru Aihi v. Moi Avei & Electoral Commission (2004) N2523

Bryan Kramer v. Nixon Philip Duban & Electoral Commission (No. 2) (2013) N5213

Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921

Counsel:

Messrs R Diveni & P Wariniki, for Petitioner

Mr H Leahy, for First Respondent

Mr L Okil, for Second Respondent

JUDGMENT

05th December, 2014

1. MAKAIL, J: This petition began on 03rd September 2012. On 14th March 2013, the National Court upheld an objection to competency and dismissed the petition for being incompetent. On 27th March 2013, the petitioner Mr Alphonse Moroi sought leave to review that decision. Leave was not granted until 23rd April 2013 and the review was not heard until 27th March 2014, 11 months after leave was granted.

2. The decision was reserved until 09th September 2014 when the Supreme Court handed down its decision upholding the review, quashed the decision of the National Court, reinstated the proceeding and remitted it for re-trial on three specific allegations of bribery. The decision paved the way for the petitioner to prove at trial these three allegations. A re-trial was conducted on 01st December, final addresses were made on 04th December and decision was reserved until today. This is the decision.

Allegations of Bribery

3. The allegations are specific. They are bribery and although there are seven in total, as per the Supreme Court decision, Mr Moroi as the petitioner relied on three of them to void the return of the first respondent The Honourable Kila Haoda as Governor of Central Province. He alleged that Mr Haoda bribed three voters to vote for him by giving cash of K500.00 to each of them at March Girls Beach Resort, Gaire on 12th May 2012.

Law on Bribery

4. Under s. 215 of the Organic Law on National and Local-level Government Elections (“Organic Law”), an election of a successful candidate can be declared void if the Court finds that the successful candidate committed bribery. In full, this provision states:

“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.”

5. Bribery under s. 215 means one of the offences created by s. 103 of the Criminal Code. Section 103 states:

“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.”

6. In the recent Supreme Court case of Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295, the Court set out the elements of the offence under s, 103(a)(iii) of the Criminal Code as follows at para. 35:

“35. To prove an offence under Section 103(a)(iii) it must be proven that a person:

1 gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;

2 any property or benefit of any kind;

3 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.”

Standard of Proof

7. According to decided cases, there has been much debate in relation to the burden of proof in a bribery case, some holding that the burden of proving bribery is according to the criminal standard of proof of beyond reasonable doubt while others holding that it is not and is something between the civil standard of proof of balance of probabilities and beyond reasonable doubt.

8. In this case, there is no dispute that I should apply the standard in between the two, that is, on a higher standard of proof but not beyond reasonable doubt or “to the entire satisfaction of the Court”: Neville Bourne v. Veoto [1977] PNGLR 298; Paru Aihi V. Moi Avei & Electoral Commission (2004) N2523; Bryan Kramer v. Nixon Philip Duban & Electoral Commission (No. 2) (2013) N5213 and compare them with Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921. So Mr Moroi has that burden to discharge.

Proof of Bribery

9. Mr Moroi called the three persons who were allegedly bribed by Mr Haoda to give evidence to prove the allegations. They were Allan Kovei Kori, Amen Ambrose and Fabian Inne. They had sworn and filed affidavits which were tendered and marked as exhibits “P4”, “P5” and “P6” respectively.

10. Mr Haoda denied the allegations and called four witnesses who testify for him and he also gave evidence. Their evidence were in affidavits and tendered as exhibits “D1”, “D2”, “D4”, “D5” and “D6”. The Electoral Commission called one witness the Election Manager for Central Province, Mr Kila Egaba. His affidavit was tendered without any objection and marked exhibit “D7” and he was not cross-examined by Mr Moroi’s counsel.

11. There is no dispute that the second element of the offence of bribery being the property was cash of K500.00. Given this, Mr Moroi bears the onus to prove that Mr Haoda gave K500.00 each to Mr Kori, Mr Ambrose and Mr Inne and secondly that the money was to induce them to procure his return as Governor or vote for him.

12. The evidence of Mr Kori, Mr Ambrose and Mr Inne attempted to establish that Mr Haoda was the person who gave each of them cash of K500.00 at March Girls Beach Resort (“March Girls”) on 12th May...