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; Aide Ganasi v Sali Subam and Electoral Commission of Papua New Guinea (2013) SC1277

• Jurisdiction: Papua New Guinea
• Judge: Davani, David, Kassman JJ
• Judgment Date: 26 September 2013
• Court: Supreme Court
• Citation: (2013) SC1277
• Docket Number: SCR (EP) NO. 19 OF 2013
• Year: 2013
• Judgement Number: SC1277

Full Title: 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; Aide Ganasi v Sali Subam and Electoral Commission of Papua New Guinea (2013) SC1277

Supreme Court: Davani, David, Kassman JJ

Judgment Delivered: 26 September 2013

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...