Gordon Wesley v Isi Henry Leonard & the Electoral Commission of PNG (2016) SC1477

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ; Sakora & Hartshorn JJ
• Judgment Date: 29 January 2016
• Court: Supreme Court
• Citation: (2016) SC1477
• Docket Number: SC Rev (EP) No. 13 of 2014
• Year: 2016
• Judgement Number: SC1477

Full Title: SC Rev (EP) No. 13 of 2014; Gordon Wesley v Isi Henry Leonard & the Electoral Commission of PNG (2016) SC1477

Supreme Court: Salika, DCJ; Sakora & Hartshorn JJ

Judgment Delivered: 29 January 2016

SC1477

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

SC Rev (EP) No. 13 of 2014

BETWEEN:

GORDON WESLEY

AND:

ISI HENRY LEONARD & THE ELECTORAL COMMISSION OF PNG

Waigani: Salika, DCJ; Sakora & Hartshorn JJ

2015: 15th June

2016: 29th January

Application for Judicial Review – Practice and Procedure – handing of vehicle keys on day of nomination to voters – intention to induce voters to vote in a certain way – findings open to the Court

Cases Cited:

Agiru v Mune (1998) SC 590

Biri v Ninkama (1982) PNGLR 34

Jim Nomane v Wera Mori (2013) SC1252

Jerry Singirok v Ken Fairweather (2014) N5577,

Counsel:

Mr G J Sheppard, for the Applicant

Mr P Mawa, for the First Respondent

Mr B Koke, for the Second Respondent

29th January, 2016

1. BY THE COURT: Introduction: This is a review application by Gordon Wesley asking this Court to review two decisions of Justice Kariko in the National Court sitting as a Court of Disputed Returns in an Election Petition No. 65 of 2012 – Isi Henry Leonard v Gordon Wesley and Andrew Trawen, the Electoral Commissioner of Papua New Guinea.

2. The two decisions sought to be reviewed were made on 20th August 2014 and 29th November 2014 respectively. The application for leave to review these decisions was granted on 4 February 2015 and the application for review was filed on 17 February 2015.

GROUNDS FOR REVIEW

3. The following are the grounds for review:

(a) To review that part of the decision of 20 August 2014, (ruling on competency) where His Honour refused to dismiss the petition as His Honour held that s.208 (a), of the Organic Law on National and Local Level Government Elections (hereafter “Organic Law”) does not require a Petitioner to plead the relevant provision of s.103 of the Criminal Code when alleging bribery as a ground in the petition; and

(b) To review the final decision of 29 November, 2014 which upheld ground 10 of the petition and voided the election of the Applicant and thereby ordering a by-election? This was on the basis that the presentation of the PMV truck keys to the Councillor Steven Stanley at West Liak village on 23 May 2012 was planned and orchestrated by the Applicant to induce votes.

ISSUES

4. The following issues were argued before us to determine:

“7. Whether the Learned Trial Judge erred in law when he held that pleading the specific provisions of section 103 Criminal Code upon which an allegation of bribery is not a requirement of s.208(a) of the Organic Law taking into consideration the Supreme Court’s views in Jim Nomane v Wera Mori (2013) SC1242.

8. Whether the Learned Trial Judge erred in law and in fact when he found that the Applicant had committed bribery by presenting the PMV truck keys to the Ward Councillor of Bagilina village.

9. Whether the Learned Trial Judge erred in fact and in law when he held that the applicant had committed bribery and had induced the voters of Bagilina Village to vote for him by making a finding that the presentation of the truck was planned by the Applicant to coincide with his campaign launching at West Liak Village.

10. Whether the Learned Trial Judge erred in law and in fact when he held that the Applicant had committed bribery by finding that the circumstances of the presentation of the PMV truck keys to the voters at Bagilina Village at the request of the voters themselves was dissimilar to the factual circumstances in the election petition case of Jerry Singirok v Ken Fairweather (2014) N5577, when in fact there were similarities between these two cases.

11. Whether the Learned Trial Judge erred in law and in fact when he held that the Applicant had committed bribery by making a finding in respect of Ground 10 of the Petition that the Applicant exhibited the element of “intention´ pursuant to section 103 of the Criminal Code Act when he presented the PMV truck keys to the Village Councillor.

12. Whether the Learned Trial Judge erred in law and in fact in finding that the Applicant had induced the voters of Bagilina Village by presenting the PMV truck keys and making a speech; saying words to the effect that he expected the villagers of Bagilina to vote for him because he had provided the PMV truck, in the absence of any evidence by the First Respondent.

13. Whether the Learned Trial Judge erred in fact and in law in finding that the Applicant had committed bribery by considering and placing weight on matters pleaded in Ground 11 of which allegations had been struck off as being incompetent”.

5. Counsel argued all the grounds of review before us and we reserved our decision. This is now the decision.

DEALING WITH THE ISSUES

A. Did the learned trial judge err in law in holding that pleading the specific provisions of Section 103 of the Criminal Code is not a requirement under Section 208(a) of the Organic Laws where bribery is ALLEGED?

6. The requirement under Section 208(a) is that a petition shall set out the facts relied on to invalidate the election or return. In our view Agiru v Mune (1998) SC 590, sets out the correct law on this point which is that there is no requirement under Section 208(a) that a petition should plead the law that defines a ground for review. Biri v Ninkama (1982) PNGLR 342 stands for the proposition that in a petition relevant fact must be pleaded which constitute the grounds upon which an election is sought to be invalidated. In this case the learned trial judge comprehensively considered the law and case authorities and in our view applied them correctly to the circumstances of this case. In our view, a petition should not plead the law breached. It should be left to the Court to conclude what law has been breached. All that Section 208(a) requires is for the petition to plead material and relevant facts to support the grounds that the petition alleges. This ground has no merit and is dismissed.

B. Did the learned trial judge err in law and in fact when he found that the applicant committed bribery by presenting the pmv truck keys to ward councillor of bagilina VILLAGE?

7. The Oxford Advanced Learners Dictionary 8th Edition defines “bribe” as: - to give somebody money or something valuable in order to persuade that person to help you, especially by doing something dishonest”. The Criminal Code Section 103 defines bribery as “a person who gives, confers or procures or offers a person any property or benefit of any kind 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”. While the handing of the vehicle key was not dishonest in itself, the learned trial judge found that it was dishonest to give it at the launch of his election campaign. Again that finding was open to him at the trial. His Honour explained why and how he came to that finding. With respect the finding was open to the learned trial judge as he heard the evidence before him and he was in a much better position than this court to decide that issue after listening to the witnesses. For that reason this ground has no merit and is dismissed.

C. Did the learned trial judge err in law and in fact when he held that the applicant committed bribery and induced voters of Bagilina to vote for him when presenting the truck and that the presentation was planned by the applicant to coincide with his campaign launch at west liak village.

8. The applicants’ argument is that the petition did not plead that the applicant planned and orchestrated the presentation of the vehicle keys to induce electors from Bagilina to vote for him. The statements by the learned trial judge that the presentation of the PMV truck keys was a “properly planned and elaborate campaign launch” is a finding of the Court on the evidence presented to it. What is the error in coming to that finding? There may not have been any evidence that the applicant planned the show but there is evidence and it is not disputed that the vehicle keys were handed over by the applicant during his election campaign launch. In our opinion that is evidence enough for the learned trial judge to come to the finding. It was open to him to make the finding that he did as to the vehicle and the key being given at the same time as the election campaign was launched. That was the dishonesty part of the event. The learned trial judge said the giving of the key was done to induce voters to vote for the applicant. The Courts must spell it out in no uncertain terms that, that conduct could amount to bribery. This ground therefore has no merit and is dismissed.

D. Did the learned trial judge err in law and in fact in finding that factual circumstances in singirok v fairweather (2014) N5577 and this case were dissimilar.

9. With respect the finding was open on the evidence before him. The learned trial judge was aware of the decision in Singirok v Fairweather (Supra). In this case the applicant was launching his election campaign and he was about to nominate. In the Singirok case,...