In The Matter of The Organic Law on National and Local–level Government Elections; And In The Matter of The Disputed Return In The Election for the Kiruku Hiri Open Electorate; In The Central Province In The 2002 National General Elections; Paru Aihi v Sir Moi Avei and The Electoral Commission of Papua New Guinea (2004) N2523

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 26 March 2004
• Court: National Court
• Citation: (2004) N2523
• Docket Number: EP No 17 of 2002 (NCD)
• Year: 2004
• Judgement Number: N2523

Full Title: EP No 17 of 2002 (NCD); In The Matter of The Organic Law on National and Local–level Government Elections; And In The Matter of The Disputed Return In The Election for the Kiruku Hiri Open Electorate; In The Central Province In The 2002 National General Elections; Paru Aihi v Sir Moi Avei and The Electoral Commission of Papua New Guinea (2004) N2523

National Court: Injia DCJ

Judgment Delivered: 26 March 2004

1 Courts and Judges—Election Petition trial—Fair hearing—Trial judges involvement in three (3) previous Supreme Court cases in different election petition reviews involving same electorate in which he ruled against the Petitioner—Whether proper basis for disqualification.

2 National Court—Election Petitions—Pleading of relevant facts—Standard of and adequacy of pleading relevant facts by ordinary person—Organic Law on National Government and Local–Level Government Elections, s208(a).

3 National Court—Election Petition trial—Standard and Onus of proof of bribery allegation—Necessity for corroboration evidence of primary witnesses' evidence.

4 Raymond Agonia v Albert Karo [1992] PNGLR 463, Allan Ebu v Roy Evara [1983] PNGLR 201, Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Albert Karo v Lady Carol Kidu [1997] PNGLR 28, Dick Mune v Anderson Agiru (1998) SC590, Roger Tongai Palme v Michael Mel, Ruben Teratere and The Electoral Commission (1989) N808, Kilroy Genia v Dr Puka Temu (2003) EP No 33 of 2002 (Unnumbered and Unreported judgments of Los J dated 5 March 2003) referred to

Ruling on Application for Disqualification

___________________________

N2523

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

EP NO. 17 OF 2002 (NCD)

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL

AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF THE DISPUTED RETURN IN THE

ELECTION FOR THE KIRUKU HIRI OPEN ELECTORATE IN

THE CENTRAL PROVINCE IN THE 2002

NATIONAL GENERAL ELECTIONS

Between:

PARU AIHI

-Petitioner-

And:

SIR MOI AVEI

-First Respondent-

And:

THE ELECTORAL COMMISSION OF PNG

-Second Respondent-

Waigani : Injia Dep. CJ

2004 : March 16 – 19, 26

Courts & Judges – Election Petition trial – Fair hearing – Trial judges involvement in three

(3) previous Supreme Court cases in different election petition reviews involving same
electorate in which he ruled against the Petitioner – Whether proper basis for disqualification.

National Court – Election Petitions – Pleading of relevant facts – Standard of and

adequacy of pleading relevant facts by ordinary person – Organic Law on National
Government and Local-Level Government Elections, S.208(a).

National Court – Election Petition trial – Standard and Onus of proof of bribery

allegation – Necessity for corroboration evidence of primary witnesses’ evidence.

Cases cited in the judgement:

Agonia v Karo [1992] PNGLR 463

Allan Ebu v Roy Evara [1983] PNGLR 201

Bourne v Voeto [1977] PNGLR 298

Karo v Kidu [1997] PNGLR 28

Mune v Agiru SC 590 (1998)

Palme v Mel & other N808

Dr. Poka Temu v Kilroy Genia

I. Shepherd for Petitioner

G. Sheppard with H. Leahy for the First Respondent

D. Kombagle for Second Respondent

RULING ON APPLICATION FOR DISQUALIFICATION

INJIA, DCJ: The First Respondent applies for my disqualification from presiding in the election Petition trial which is schedule to commence today. The application is supported by the affidavit of the First Respondent. The only basis of the application is that because I was a member of the bench of three previous Supreme Court election review cases in which I ruled against the applicant, a reasonable and fair minded person sitting in Court would apprehend bias on my part – that I would also rule against the First Respondent in this matter.

The Petitioner contests the application and says there that is no proper basis for disqualifying myself.

The Second Respondent does not take any position on the application.

In my view, whilst it is true that I first raised the matter of possible disqualification, it is open for the First Respondent to raise such matters in the interest of fair justice. When the applicant does raise the issue by way of a formal application, the onus is on the applicant to satisfy or imputed or apprehended bias. On the information and submissions before me, I am not satisfied that the applicant has met that test. These three (3) Supreme Court decisions in which I participated are review cases where there were straight-forward points of law and/or facts already determined by the trial judge. No issues of credibility of the parties in particular the First Respondent, were determined. Each case was heard and disposed of on their own strength and merits.

I do appreciate the special role of judges in PNG where we perform dual roles – as judges of the National Court, which is principally a trial Court, and also judges of the Supreme Court, which is principally an appellate Court. This situation is perhaps not common practice in many common law countries. There are those situations, and increasingly so with limited number of judges in this country, where we preside in trial cases and review or appeal cases or vice versa, involving the same parties but in different cases raising the same or different issues. Judges need to be cautious and careful. They may wish to bring their previous involvement in cases to the attention of the parties for their views. Once a party does raise the issue of disqualification, it is a matter entirely for the judge to decide but it should be done with care. In the present case, having given due consideration to the submissions raised on the issue before me, as I have already said, I am not satisfied that a fair-minded Papua New Guinean sitting in Court would, in the circumstances, reasonably apprehend bias. And I can say that the issues of evidence, facts and law raised in this case will be dealt with on their own strength and merits. For these reasons, I dismiss the application. Costs of the motion shall be costs in the trial of the Petition.

Ruling on Objection to Competency

The First Respondent applies to strike out the remaining eight (8) grounds of the Petition set out in clause 6A, (h), (j), (k), (l), (M), (o), (q), and (u) on the grounds that they

fail to plead or sufficiently plead some of the relevant facts required to be pleaded under S.208(a) of the Organic Law on National and Local-Level government Elections

(“Organic Law”). All these eight (8) grounds plead “bribery” as defined under S.103 of the Criminal Code as a ground for voiding the election. The remaining grounds:-

A. Bribery and Undue influence

It is alleged that the First Respondent committed acts of bribery and undue influence during the elections for the Kairuku Hiri Open Electorate and accordingly his declaration and return as the duly elected Member be declared null and void on the basis of the following:-

(h) In March 2002 at Vulupindi Haus, Waigani, National Capital District, the First Secretary namely Naimo Doko gave a cheque in the sum of K1,000.00 to the following electors in the Kairuku Open Electorate in the 2002 National General Elections:

(i) Anthony Aoka of Bebeo village in Mekeo, Kairuku in the central Province.

(i) Peter Ipauki and Peter Sanai of Imounga village in Mekeo, Kairuku the Central Province.

(ii) Alan Keaeke of Inawaoni village.

At the time of handing the cheque to the said electors, the said Naime Doko, told the said electors to vote for the First Respondent.

It is alleged that the facts set out herein in paragraph 6(h) constitute bribery, an illegal practice under the law.

It is further alleged that the said acts of bribery was carried out with the authority and/or knowledge of the First Respondent.

(j) On 5th of April 2002 at Vulupindi Haus Waigani national Capital District, the Second Secretary to the First Respondent namely Igo Pautani gave K1,800.00 cheque to Charlie Kalo, Santonio Aisas, Aloysius Fagu’u, Henry Abau, Anthony Paru and Andrew Fagau, all of Inauaia Village, Mekeo, Kairuku in the Central Province who are electors for the Kairuku Hiri Open Electorate in the 2002 National General Elections.

It is alleged that the facts set out herein in paragraph 6(j) constitute bribery, an illegal practice under the law.

It is further alleged that the said act of bribery was carried out with the authority and/or knowledge of the First Respondent.

(k) On 6th of April 2002 at Vulupindi Haus Waigani, National Capital District, the First Respondent gave K100.00 cash to Charlie Kalo, Santonio Aisa, Aloysius Fagu’u, Henry Abau, Anthony Paru and Andrew Fagau, all of Inauaia Village, Mekeo, Kairuku in the Central Province who are electors for the Kairuku Hiri Open Electorate in the 2002 National General...