In the matter of the Organic Law on National and Local-Level Government Elections and in the Matter of a Disputed Return for the Kairuku-Hiri Open Electorate; Peter Isoaimo v Paru Aihi and Electoral Commission of Papua New Guinea (2012) N4921

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 03 December 2012
• Court: National Court
• Citation: (2012) N4921
• Docket Number: EP NO 72 of 2012
• Year: 2012
• Judgement Number: N4921

Full Title: EP NO 72 of 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 Kairuku-Hiri Open Electorate; Peter Isoaimo v Paru Aihi and Electoral Commission of Papua New Guinea (2012) N4921

National Court: Cannings J

Judgment Delivered: 3 December 2012

N4921

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 72 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 KAIRUKU-HIRI OPEN ELECTORATE

PETER ISOAIMO

Petitioner

V

PARU AIHI

First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Cannings J

2012: 26, 27, 28 November, 3 December

ELECTIONS – petitions – validity of return of a member of the National Parliament disputed by petition – ground of “bribery”: Organic Law on National and Local-level Government Elections, Section 215 – elements of criminal offence of bribery: Criminal Code, Section 103 – standard of proof: beyond reasonable doubt

The petitioner challenged the return of the first respondent as sitting member on the ground of bribery under Section 215 of the Organic Law on National and Local-level Government Elections, alleged to be constituted by payments of cash and/or cheques in connection with two series of events at different villages. The first event was a sport tournament. It was alleged that the first respondent initiated the tournament and provided K5,000.00 cash funding for it and attended it and made a political speech and gave K1,000.00 cash to an elector (one of the tournament organisers) in order to induce that person and other electors at that village to endeavour to procure the return of the first respondent at the forthcoming general election. The second event was a visit to a village as part of his election campaign during which he announced that he had brought money to the village and distributed cash and cheques totalling K10,500.00 to various electors in order to induce them and other electors at that village to endeavour to procure his return at the forthcoming general election. It was undisputed that the first respondent was present on the two occasions but as to the first occasion he denied handing out cash in the manner alleged and as to the second occasion he agreed that some cash and cheques was distributed but denied that he distributed it or that it was distributed in order to induce the recipients and other electors at that village to endeavour to procure his return at the forthcoming general election.

Held:

(1) An election will be declared void if the Court finds for the purposes of Section 215(1) of the Organic Law that a candidate has committed or has attempted to commit bribery.

(2) “Bribery” in Section 215 means one of the offences of bribery created by Section 103 of the Criminal Code, which means that the petitioner has the burden of proving beyond reasonable doubt that one of those offences was committed by the successful candidate.

(3) Here the petitioner alleged commission on two occasions of offences under Sections 103(a)(iii) and 103(d) of the Criminal Code.

(4) As to the first event (bribery allegedly constituted by providing K5,000.00 funding to a sport tournament and giving K1,000.00 cash to an elector) the petitioner failed to prove as to the funding (proven only to the extent of K2,500.00) that the first respondent acted with criminal intent and as to the K1,000.00 failed to prove that such, or any, cash was given out. The bribery allegation failed.

(5) As to the second event (bribery allegedly constituted by giving K10,500.00 in cash and cheques to various electors) the petitioner proved beyond reasonable doubt that the first respondent committed the offence of bribery contrary to Sections 103(a)(iii) and 103(d) of the Criminal Code in two distinct ways: conferring K6,500.00 cash in a planned distribution to various persons and conferring K1,000.00 cash on two individuals in an unplanned distribution of cash.

(6) The first respondent, being a candidate at the 2012 general election, committed bribery and because he was the successful candidate his election was declared void.

Cases cited

The following cases are cited in the judgment:

Benny Diau v Mathew Gubag (2004) SC775

Desmond Baira v Kilroy Genia (1998) SC579

Labi Amaiu v Andrew Mald (2008) N3335

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 the election of the sitting member at a general election.

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.

Counsel

G J Sheppard, for the petitioner

I R Shepherd & E Wamp, for the first respondent

T Dalid, for the second respondent

3 December, 2012

1. CANNINGS J: The petitioner Mr Peter Isoaimo has filed a petition disputing the election of the first respondent Mr Paru Aihi as the member for Kairuku-Hiri Open in the 2012 general election. This is a ruling on the petition. The petitioner challenges the return of the first respondent as sitting member on the ground of bribery under Section 215(1) (voiding election for illegal practices) of the Organic Law on National and Local-level Government Elections, which provides:

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. The alleged bribery is constituted by payments of cash and/or cheques on two occasions at different villages.

3. The first set of allegations relates to events at a volleyball tournament at Vanapa village on 2 June. It is alleged that the first respondent gave K1,000.00 cash to one of the tournament organisers and told him the money was for the registration fee for a forthcoming tournament in Alotau and that the intention of the first respondent was to induce the recipient and other electors at that village to endeavour to procure the return of the first respondent at the 2012 general election.

4. The second set of allegations relates to a visit by the first respondent and others to Veifa’a village on 26 May. It is alleged that the first respondent visited the village as part of his election campaign, announced that he had brought money to the village and then distributed cash and cheques totalling K10,500.00 to various people, his intention being to induce those people and other electors at that village to endeavour to procure his return at the 2012 general election.

5. The first respondent does not dispute that he was present at the two villages on the dates mentioned. However, as to the Vanapa allegations he denies handing out cash in the manner alleged; and as to the Veifa’a allegations though he agrees that some cash and cheques was distributed he denies distributing the money and denies that the money was distributed in order to induce the recipients and other electors at that village to endeavour to procure his return at the forthcoming general election.

6. This judgment begins by setting out the undisputed facts before detailed consideration is given to the two sets of allegations.

UNDISPUTED FACTS

7. A number of undisputed facts have emerged from the evidence:

· The first respondent was elected to the National Parliament as the member for Kairuku-Hiri Open in the 2007 general election. He contested the 2012 general election as the sitting member.

· Nominations for the 2012 general election closed on 24 May. Polling day for Kairuku-Hiri was in June. The events that are at the centre of the alleged acts of bribery occurred during the campaign period.

· Accompanying the first respondent to Veifa’a on 26 May was a group of political supporters including his first secretary Paul Aisa and the President of Mekeo-Kuni Local-level Government Mr Simon Ake. Local youths had erected a road block to prevent the first respondent and his group from entering the village. After a commotion the road block was removed and the first respondent and his group entered the village. He made a speech, saying that he had come to explain the whereabouts of money promised by the then Prime Minister Grand Chief Sir Michael Somare who had visited the village in December 2010 and informing the people of his achievements over the last five years. Cash and cheques were distributed at the gathering.

· Prior to the volleyball tournament at Vanapa, on 23 May, the first respondent met with some of the tournament organisers at the Ela Beach Hotel, Port Moresby. He sponsored the tournament by providing K5,000.00 to the tournament organisers. He attended the tournament on 2 or 3 June. He made a speech and informed those present of his achievements over the last five...