In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a Disputed Return for the Sumkar Open Electorate; Jerry Singirok v Ken Fairweather and Emily Siamoli, the Returning Officer and Electoral Commission of Papua New Guinea (2014) N5577

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 April 2014
• Court: National Court
• Citation: (2014) N5577
• Docket Number: EP NO 8 0F 2012
• Year: 2014
• Judgement Number: N5577

Full Title: EP NO 8 0F 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a Disputed Return for the Sumkar Open Electorate; Jerry Singirok v Ken Fairweather and Emily Siamoli, the Returning Officer and Electoral Commission of Papua New Guinea (2014) N5577

National Court: Cannings J

Judgment Delivered: 24 April 2014

N5577

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 8 0F 2012

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN FOR THE

SUMKAR OPEN ELECTORATE

JERRY SINGIROK

Petitioner

V

KEN FAIRWEATHER

First Respondent

EMILY SIAMOLI, THE RETURNING OFFICER

Second Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Third Respondent

Madang: 4, 5, 6, 7 March 2014

Waigani: 25 March 2014

Madang: 24 April 2014

ELECTIONS – petitions – grounds of “undue influence” and “bribery”: Organic Law on National and Local-level Government Elections, Section 215 – elements of offences of undue influence (Criminal Code, Section 102) and bribery (Criminal Code, Section 103) – meaning of “candidate” in Section 215 – whether necessary for a person to have nominated as a candidate at the time of commission of the offence.

The petitioner challenged the return of the first respondent as sitting member on the grounds of undue influence and bribery under Section 215 of the Organic Law on National and Local-level Government Elections. It was alleged that the first respondent or other persons with his knowledge and authority committed undue influence and bribery on five different occasions. The petitioner alleged commission of undue influence offences under Section 102(b) of the Criminal Code and bribery offences under Sections 103(a)(iii) and 103(d) of the Criminal Code.

Held:

(1) The election of a candidate will be declared void under Section 215(1) of the Organic Law if the Court finds that he has committed or has attempted to commit undue influence or bribery, and his election will be declared void under Section 215(3) of the Organic Law if another person commits undue influence or bribery with the candidate’s knowledge or authority.

(2) “Undue influence” and “bribery” in Section 215 mean one of the offences of undue influence or bribery in Sections 102 or 103 of the Criminal Code. The petitioner must prove beyond reasonable doubt that one of those offences was committed by the successful candidate or by another person with the candidate’s knowledge or authority.

(3) “Candidate” in Section 215 means a person who has nominated as a candidate, thus the petitioner must prove that the successful candidate had nominated at the time that the offence of undue influence or bribery was committed or attempted. If the offence was committed or attempted to be committed prior to the time of nomination, the election of the successful candidate cannot be declared void under Section 215 (Allan Ebu v Roy Evara [1983] PNGLR 201 applied).

(4) The first two grounds of the petition failed as on the dates on which the alleged offences underlying those grounds were committed, the first respondent had, though announcing himself as a candidate, not nominated.

(5) The final three grounds of the petition failed as the petitioner was unable to prove beyond reasonable doubt that the first respondent or any of the persons acting allegedly with his knowledge or authority acted by force or fraud (that being one of the elements of the offence of undue influence) or gave the property or benefits with criminal intent in order to procure the return of the first respondent or the vote of any elector at an election (that being one of the elements of the offence of bribery).

(6) The petition was wholly dismissed and the petitioner was ordered to pay the first respondent’s costs.

Cases cited

The following cases are cited in the judgment:

Allan Ebu v Roy Aua Evara [1983] PNGLR 201

Benny Diau v Mathew Gubag (2004) SC775

Bryan Kramer v Nixon Philip Duban (2013) N5213

Jim Nomane v Wera Mori (2013) SC1242

Ken Fairweather v Jerry Singirok (2013) SC1293

Peter Isoaimo v Paru Aihi (2012) N4921

Peter Wararu Waranaka v Gabriel Dusava (2009) SC980

Robert Kopaol v Philemon Embel (2003) SC727

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

TRIAL

This was the trial of an election petition disputing the validity of an election.

Counsel

B W Meten, for the petitioner

G J Sheppard, for the first respondent

A Kongri, for the second and third respondents

Terminology and dates

In this judgment:

· ‘the Organic Law’ refers to the Organic Law on National and Local-level Government Elections;

· dates refer to the year 2012 unless otherwise indicated.

24th April, 2014

1. CANNINGS J: The petitioner Jerry Singirok disputes the election of the first respondent Ken Fairweather as member for Sumkar Open in the 2012 general election. Mr Fairweather won the election with 9,624 votes. The petitioner was runner-up with 7,004 votes.

2. The petitioner relies on five grounds of undue influence and bribery under Section 215 of the Organic Law on National and Local-level Government Elections. There were originally seven grounds in the petition but one was struck out at an earlier hearing and another withdrawn. This is the trial of the remaining five grounds, the original numbering of which has been preserved. No errors or omissions are alleged to have been committed by the Electoral Commission.

GROUNDS

3. Ground 1 consists of two sub-grounds relating to the same incident, while the other four are stand-alone grounds:

· ground 1(a): undue influence and bribery committed by another person with Mr Fairweather’s knowledge and authority: K15,000.00 at Matugar on 21 May;

· ground 1(b): undue influence and bribery committed by Mr Fairweather: K15,000.00 at Matugar on 21 May;

· ground 2: undue influence and bribery committed by another person with Mr Fairweather’s knowledge and authority: 5,000-litre water tank and four bags of cement at Did on 24 May;

· ground 3: struck out;

· ground 4: undue influence and bribery committed by Mr Fairweather: rice, sugar and other goods and K110.00 cash at Basken on 13 June;

· ground 5: undue influence and bribery committed by Mr Fairweather: New Holland tractor at Dangsai on 20 June;

· ground 6: withdrawn;

· ground 7: undue influence and bribery committed by another person with Mr Fairweather’s knowledge and authority: hardware and stockfeed at Garum on 29 June.

4. It is useful to categorise the grounds according to whether the alleged act of undue influence and bribery at the centre of each ground was committed by the successful candidate, Mr Fairweather, or by some other person with his knowledge or authority. Thus:

· grounds that allege undue influence and bribery by Mr Fairweather are Nos 1(b), 4 and 5;

· grounds that allege undue influence and bribery by some other person with Mr Fairweather’s knowledge and authority are grounds 1(a), 2 and 7.

SECTION 215

5. Under Section 215 of the Organic Law “undue influence” and “bribery” are grounds on which a successful candidate’s election can be declared void. Section 215 (voiding election for illegal practices) states:

(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.

6. The Supreme Court in Ken Fairweather v Jerry Singirok (2013) SC1293 explained that Section 215 provides for six scenarios in which the election of a successful candidate can be declared void:

A. bribery or undue influence committed or attempted by a candidate: if he is the successful candidate, Section 215(1) applies: his election shall be declared void;

B. bribery or undue influence committed or attempted by someone other than the candidate with the knowledge or authority of the candidate: his election may be declared void without the necessity of pleading or proving the two matters set out at the end of Section 215(3);

C. bribery or undue influence committed or attempted by someone other than the candidate without the knowledge or authority of the candidate: this is the scenario expressly provided...