Application under Section 155 (2)(B) of the Constitution and in the matter of Part XVII of the Organic Law on National and Local Level Government Elections; Paru Aihi v Peter Isoaimo and Electoral Commission of Papua New Guinea (2013) SC1276

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Hartshorn & Yagi, JJ
• Judgment Date: 01 October 2013
• Court: Supreme Court
• Citation: (2013) SC1276
• Docket Number: SCR 52 OF 2012
• Year: 2013
• Judgement Number: SC1276

Full Title: SCR 52 OF 2012; Application under Section 155 (2)(B) of the Constitution and in the matter of Part XVII of the Organic Law on National and Local Level Government Elections; Paru Aihi v Peter Isoaimo and Electoral Commission of Papua New Guinea (2013) SC1276

Supreme Court: Kandakasi, Hartshorn & Yagi, JJ

Judgment Delivered: 1st October 2013

SC1276

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 52 OF 2012

APPLICATION UNDER SECTION 155 (2)(b) OF THE CONSTITUTION

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

BETWEEN:

PARU AIHI

Applicant

AND:

PETER ISOAIMO

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi, Hartshorn &Yagi, JJ.

2013: 26th February

1st October

CRIMINAL LAW – Elections - Petition against election result grounded on bribery – Distribution of cash and cheques at election campaign – Eventual winner of election present at campaign speeches and witnessing distribution of cash and cheques by campaign manager – People attending were electors who had not previously elected the member – Where the funds came from not properly explained – No requirement for recipients to account for monies received – Bribery established – Custom of giving gifts and parties and festivities during election periods – Inappropriate custom that does not meet the requirements of Schedule 2.1 (2) of the Constitution – Custom outlawed by s. 103 of Criminal Code and s. 215 of the Organic Law on National and Local-level Government Elections.

CUSTOM - Custom of giving gifts and parties and festivities during election periods – Purpose and intent of these is to influence election outcome - Inappropriate custom that does not meet the requirements of Schedule 2.1 (2) of the Constitution – Custom outlawed by s. 103 of Criminal Code and s. 215 of the Organic Law on National and Local-level Government Elections.

ELECTIONS – Petition grounded on bribery – Distribution of cash and cheques at election campaign – Eventual winner of election present at campaign speeches and witnessing distribution of cash and cheques by campaign manager – People attending were electors who had not previously elected the member – Where the funds came from not properly explained – No requirement for recipients to account for monies received – Bribery established – Custom of giving gifts and parties and festivities during election periods – Inappropriate custom that does not meet the requirements of Schedule 2.1 (2) of the Constitution – Custom outlawed by s. 103 of Criminal Code and s. 215 of the Organic Law on National and Local-level Government Elections.

EVIDENCE – Election Petition – Pleadings and evidence – Court to consider all evidence before it, whether it is hearsay or otherwise inadmissible – Court to be guided by need to do real justice – That includes a consideration of all evidence before the Court.

PRACTICE & PROCEDURE – Election Petition grounded on bribery – Competency of – Issue raised for the first time on review – Issue not raised in the Court below - Conflicting authorities considered – Correct position - An issue not raised in the Court below cannot be raised on review – Principles on departure from previous decision of the Supreme Court considered and applied – Constitution Schedule 2.9 (1).

STATUTORY INTERPRETATON - Bribery - Section 103 of Criminal Code and s.215 of the Organic Law on National and Local-level Government Elections –The term “bribery” not defined - Provisions do provide guidance – Purpose of – Section designed to prohibit improper inducements to persons, to electors, or candidates in an election, by electors or to an elector or other persons and or corrupt practices, with the intention of interfering with the lawful process of an election – Seriousness of offence require wider purposive approach and interpretation - Culture of gifts, parties and festivities during election periods has the main purpose of influencing election outcomes which is prohibited.

Papua New Guinea Cases cited:

Kasap v. Yama [1988-89] PNGLR 197.

Application by Herman Joseph Leahy (2006) SC 855.

Application of Ludwig Patrick Shulze (1998) SC 572.

Malipu Balakau v. Paul Torato [1983] PNGLR 242.

Mune v. Agiru & Ors (1998) SC 590.

Kelly Kalit v John Pundari (1998) SC 569.

Application by Ben Semri (2003) SC 723.

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.

Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853.

Patterson Lowa, & Ors v. Wapula Akipe,& Ors [1991] PNGLR 265; [1992] PNGLR 399.

MVIT v. James Pupune [1993] PNGLR 370.

PNGBC v. Jeff Tole (2002) SC694.

Fly River Provincial Government v. Pioneer Health Services Limited (2003) SC705.

Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v. University of Papua New Guinea (2005) SC788.

Isaac Lupari v. Sir Michael Somare & Ors (2010) SC107.

The Papua Club Inc. v. Nasaum Holdings Limited & Ors (2005) SC812.

Van Der Kreek v. Van Der Kreek [1979] PNGLR 185.

Peter Peipul v. Justice Sheehan Tribunal & 2 Ors (2001) N2096.

Kepa Wanege v. The State (2004) SC702.

Masolyau Piakali v. The State (2004) SC771.

Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970.

Stettin Bay Lumber Company Ltd v S. K. Goh & Ors (2011) SC1096.

Jimmy Ono v. The State (2002) SC698.

Denden Tom & Anor v. The State (2008) SC96.

Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205.

Derbyshire v. Tongia [1984] PNGLR 148.

Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628.

The Independent State of Papua New Guinea v. Zachary Gelu (2002) N2322.

Sacred Heart Mission (New Britain) Property Trust v. Nambumutka Simbali on behalf of the Denangi Lineage and The Director of District Administration (Re Toriu) (1972) FC29.

Steven Isaac Awoda v. The State [1984] PNGLR 165.

Cosmas Kutau Kitawal & Chirstoper Kutau v. The State (2007) SC927.

Telikom PNG Ltd v ICCC (2008) SC906.

Ramu Nico Management (MCC) Ltd v. Farina Siga (2010) SC1056.

Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.

Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596.

Vehicles Insurance (PNG) Trust MVIT v. Salio Tabanto [1995] PNGLR 214.

National Executive Council v. Soiat Williams (2005) SC819.

Lavongai Equities Ltd v. Club 21 Ltd (2009) SC1001.

Maino v. Avei [1998] PNGLR 178.

The Application by Ben Semri (2003) SC723.

Application by Ben Semri [Sembri] and SCR No 23 of 2003: Review Pursuant to Constitution Section 155(2) (b) Application by The Electoral Commission of Papua New Guinea (2003) SC723.

Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.

Application by Ben Semri [Sembri] and SCR No 23 of 2003: Review Pursuant to Constitution Section 155(2)(b) Application by The Electoral Commission of Papua New Guinea (2003) SC723.

Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.

Application by The Electoral Commission of Papua New Guinea (2003) SC723;

Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.

Assik Tommy Tomscoll v Ben Semri (2003) N2349.

Pirika Kamma v. Itanu, Electoral Commission and Laimo (2008) N3246.

Steven Pirika Kamma v. John Itanu & Others (No 2) (2008) N3261.

Jimson Sauk v. Don Polye (2004) SC769.

Ginson Saonu v. Bob Dade (2004) SC 763.

Benias Peri v. Nane Petrus Thomas & Electoral Commission (Unreported and Unnumbered judgment of 20/4/04), per Hinchcliff J .

Francis Koimanrea & Or v. The Electoral Commission and Paul Tiensten (Unreported & un-numbered judgment of 13/3/03), per Sakora J.

Michael Tenaram Balbal v. The State (2007) SC860.

Telikom PNG Ltd v. Thomas Tulin (2004) SC748.

Alina Sarah Bean v. Ian Maxwell Bean [1980] PNGLR 307.

The State v. Danny Makao (2005) N2996.

The State v. Kiap Bonga [1988-89] PNGLR 360.

The State v. Pablito P. Miguel (2002) N2338.

Kilroy Genia v Dr. Puka Temu & Another [2003] (Unreported and unnumbered National Court decision delivered on 5 March 2003) per Los J.

Steven Pokawin v. Jacob Jumokot [2003],(Unreported and unnumbered decision of the National Court) delivered on 3rd January 2003.

Roger Tongai Palme v. Michael Mel, & Ors (1989) N808.

Thompson v Pokasui (Unreported and unnumbered National Court a decision) delivered in August 1989.

Kaiabe v Makiba (1989) N723.

Powes Parkop v. Wari Vele (No 3) (2007) N3322.

Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463.

Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980.

Overseas Cases Cited:

Dianne McGrath Fingleton v. The Queen (2005) HCA 34.

University of Wollongong v. Metwally (No 2) (1985) 59 ALJR 481.

Counsel:

A. Manase, for the Applicant

F. Griffin, for the First Respondent

C. Lari, for the Second Respondent

1st October, 2013

1. KANDAKASI J: The National Court sitting as the Court of Disputed Returns upheld a petition against the First Respondent, Mr. Paru Aihi, resulting in Mr. Aihi’s dismissal as a Member...