Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 23 October 1992
• Court: National Court
• Citation: [1992] PNGLR 463
• Docket Number: In the Matter of the Organic Law on National Elections and In the Matter of the Election for the Moresby South Electorate
• Year: 1992
• Judgement Number: N1115

Full Title: In the Matter of the Organic Law on National Elections and In the Matter of the Election for the Moresby South Electorate; Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463

National Court: Sheehan J

Judgment Delivered: 23 October 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS AND IN THE MATTER OF THE ELECTION FOR THE MORESBY SOUTH OPEN ELECTORATE;

RAYMOND AGONIA

V

ALBERT KARO AND ELECTORAL COMMISSION

Waigani

Sheehan J

15 October 1992

22-23 October 1992

ELECTIONS — Parliament — Petition disputing election — Allegation of bribery — Application to strike out — Failure to comply with s 208 (a) Organic Law on National Elections — Facts required to plead bribery must assert the base facts necessary to establish that crime — Element of intention must be pleaded — Standard of proof — Organic Law on National Elections ss 208 (a) and (d), Criminal Code ss 103,104.

Facts

The first respondent applied to have struck out an election petition which challenged his return as the duly elected member for the Moresby South Open Electorate. The grounds were, first, the attesting witnesses did not supply their proper addresses contrary to s 208 (d) of the Organic Law on National Elections; and second, the petition failed to set out sufficient relevant material facts to establish bribery on his part, contrary to s 208 (a) of the Organic Law.

Held

1. "... The whole purpose of requiring that an attesting witness supply name, occupation and address is so that the witness is readily identified and able to be located. Accordingly ... the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even section, lot number and suburb. In the case of a villager, simply his village." (The Court proceeded to rule that the attesting witnesses' addresses in the petition were sufficient for the purpose of s 208 (d) of the Organic Law.)

2. A charge of bribery is a serious allegation challenging the electoral process; therefore, the base facts constituting the crime of bribery must be pleaded with clarity and definition.

3. The standard of proof required in an election petition to establish a ground of bribery is the same as in a criminal court and must be proved as it is constituted in the Criminal Code. (Restating Bourne v Voeto [1977] PNGLR 298 at p 302).

4. Intention to induce a course of action of corrupt practice or interfere unlawfully in the free voting of elections by voters is an element of the offence of bribery under s 103 of the Criminal Code, and must be pleaded specifically in the petition along with the other elements of the offence.

5. The paragraphs in the petition alleging bribery should be struck out for failure on the part of the petitioner to plead specific elements of the offence in the petition, contrary to s 208 (a) of the Organic Law. The petitioner failed to plead the element of intention to interfere unlawfully in the free voting in elections by voters and/or failed to plead whether the persons named were voters or eligible to vote in the said electorate.

Cases Cited

Badui v Philemon [1992] PNGLR 451.

Biri v Ninkama [1982] PNGLR 342.

Bourne v Voeto [1977] PNGLR 298.

Holloway v Ivarato [1988] PNGLR 99.

Papol v Temu [1981] PNGLR 178.

Siaguru v Unagi [1987] PNGLR 372.

Counsel

M Lash, for the petitioner.

G Sheppard, for the first respondent.

J Bray, for the second respondent.

SHEEHAN J: In this petition, the petitioner alleges that the successful candidate in the Moresby South Open Electorate has not lawfully been elected because he has been guilty of "numerous" instances of bribery.

The petition asserts that those acts of bribery were carried out by the first respondent himself, and 11 instances of what the petitioner says are acts of bribery are, thereafter, set out.

The first respondent now challenges the validity of this petition on 2 grounds. The first ground is that, contrary to s 208 (a) of the Organic Law on National Elections, the petition fails to set out sufficient relevant material facts to establish the grounds of bribery. The second is that, contrary to s 208 (d), attesting witnesses to the petition have failed to supply proper addresses and, therefore, the petition must fail.

It is convenient to deal with this second submission first, and it is certainly true that the compliance with s 208 (d) is obligatory. The Supreme Court in Biri v Ninkama [1982] PNGLR 342 has made it clear that requirements of this subsection must be strictly complied with. This decision was recently followed by Hinchliffe J in Badui v Philemon [1992] PNGLR 451.

In this petition, the contention is that the address supplied by each of the attesting witnesses is insufficient, too vague or uncertain. It was submitted that the addresses supplied should be proper postal addresses. The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even section, lot number and suburb. In the case of a villager, simply his village.

In this case, an address has been supplied, and I accept Mr Lash's argument that a villager or person living in a settlement who attests a petition is fulfilling his obligation under s 208 (d) to supply his normal residential address when he nominates his village or settlement.

Turning to the submission that the grounds alleged fail to supply the relevant material facts necessary to establish bribery, again there is no doubt as to the law.

Kapi DCJ in the Supreme Court decision of Holloway v Ivarato [1988] PNGLR 99 stated that:

"Setting out grounds without more does not satisfy the requirement of s 208 (a) of the Organic Law .... What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."

It was Mr Sheppard's submission that, to establish the ground of bribery, the petitioner could not just simply allege bribery, he had to specifically plead facts going to the elements of that offence. In particular, it was his view that there should be an allegation that the offending first respondent had been a successful candidate in the Moresby South Electorate, that he gave money or some benefit to a named voter or voters, with the purpose of inducing that voter or those voters to vote in a particular way or refrain from voting in the election.

For the petitioner, Mr Lash submitted that the offence of bribery as set out in s 103 of the Criminal Code plainly showed that it was certainly not the case that only "voters" could be bribed. In fact, "any person" might be the offerer of, or the recipient of, a bribe so long as the purpose of the giving or the receipt of the benefit, money or otherwise was to procure the return or advantage of another at an election.

He submitted that the allegation of bribery coupled with the facts set out in paragraphs 7 (a) to (k) inclusive were sufficient and constituted grounds of bribery. There were named recipients of cheques in at least 5 of the alleged offences, but, in fact, there was need to recognise that in some situations where there had been breaches of electoral laws, the reality was that, while evidence could be available as to just which known group had been given money or benefits, the names of the actual recipients might not.

Again, while acknowledging that there were no allegations made in the grounds as to the intention or purpose of the first respondent in making donations of money or property, it was submitted that the Court would not simply accept that those "gifts" were given for no purpose at all.

Counsel for the petitioner said that it was not necessary to recite the whole of s 103 of the Criminal Code to establish a ground. While acknowledging that the element of intent to the offence certainly needed to be proved, intent or purpose was not a fact to be pleaded. It is simply a matter of evidence. The petition, as it was, defined the issues, he said, and, as was said in Siaguru v Unagi [1987] PNGLR 372, the other side cannot be said to be taken by surprise.

Any aggrieved person has the right to bring a petition challenging an election for breaches of the...