Re Disputed Returns for the North Bougainville Open Electorate [1994] PNGLR 396

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 01 July 1994
• Citation: [1994] PNGLR 396
• Docket Number: James Togel v Michael Ogio and Electoral Commission
• Court: National Court
• Year: 1994
• Judgement Number: N1241

Full Title: James Togel v Michael Ogio and Electoral Commission; Re Disputed Returns for the North Bougainville Open Electorate [1994] PNGLR 396

National Court: Doherty J

Judgment Delivered: 1 July 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND IN THE MATTER OF THE DISPUTED RETURNS FOR THE NORTH BOUGAINVILLE OPEN ELECTORATE; JAMES TOGEL

V

MICHAEL OGIO

AND ELECTORAL COMMISSION

Buka

Doherty J

16-17 June 1994

20-23 June 1994

1 July 1994

PARLIAMENT — Elections — Disputed return — Bribery.

EVIDENCE — Failure to cross-examine — Rule in Browne v Dunn.

Facts

On a petition disputing an election return, seeking a declaration that the election was void on the basis of bribery, the first respondent and sitting member for the electorate had allocated grants from discretionary funds to two groups in the electorate. The funds were drawn from the National Development Fund, available to all members of the Parliament, and were allocated on the basis of recommendations made by a committee established by the first respondent. The first respondent did not know the members of the recipient groups, several of whom were requested by the persons delivering the funds to "remember" the first respondent, and who therefore felt obliged to vote for him. Evidence of a witness for the petitioner about receipt of the funds, which was not the subject of cross-examination was contradicted by a witness for the respondent.

Held

1. An election will be declared void due to bribery, under s 215 of the Organic Law on National Elections, if a bribe is offered to a person:

(a) with the authority or authorization of the candidate; and

(b) with the intention of persuading him to vote for a particular candidate.

2. Payments made from discretionary funds available to members of Parliament to groups or individuals could amount to bribery, depending on the circumstances.

3. Payments from the discretionary fund had made members of the recipient groups feel obliged to vote for the first respondent, and, accordingly, could constitute bribery if made with his authority or authorization.

4. There being no evidence that the first respondent either knew the identity of members of the groups receiving the funds or authorised what was said when the funds were delivered, there was no evidence of authority or authorization by him.

5. A Court is entitled to disbelieve a witness who gives evidence of facts which have not been put to the relevant witness of the opposing party during cross-examination.

Cases Cited

Re Goilala Open Parliamentary Election; Keno v Mona (1982) unnumbered, unreported NC.

Re Koroba-Lake Kopiago Open Parliamentary Election [1977] PNGLR 328.

Re Menyamya Open Parliamentary Election; Bourne v Voeto [1977] PNGLR 298.

Yap v Tan [1987] PNGLR 227.

Browne v Dunn (1893) 6 R 67.

Counsel

J Yagi, for petitioner.

P Niningi, for first respondent.

D Kombagle, for second respondent.

1 July 1994

DOHERTY J: The petitioner filed a petition in the National Court, sitting as a Court of Disputed Returns, seeking a declaration that the election held for the North Bougainville Electorate in the 1992 General Elections was void. The original petition contained five grounds. At a preliminary hearing before Salika J on 18 September 1992, four of these grounds were struck out. No grounds related to the second respondent remain before this Court.

The remaining ground alleges illegal practices by the first respondent. It states 21 incidents of bribery by him at dates in May and June 1992, prior to the election. Before this Court, evidence was adduced of two only of the incidents alleged. There being no evidence adduced relating to the others. I say nothing further concerning them.

Before dealing with the evidence and the law relating to that evidence. I will deal first with an application Mr Niningi tried unsuccessfully to raise, and subsequently raised again in his submission. This was seeking an Order to strike out the remaining one ground in its entirety on the basis that it does not comply with s 208 of the Organic Law on National Elections. A ruling was given by Salika J in response to the same application by the first respondent to strike out the entire petition in September 1992. In asking this Court to strike out, counsel is effectively asking that it review or change the decision and order of a Court of equal competent jursidiction. The law is clear. A person is bound by the decision of a Court, whether they think it is incorrect or not, until that order is changed by a Court of competent jurisdiction, by way of appeal or review or amendments; Yap v Tan [1987] PNGLR 227. Section 220 of the Organic Law on National Elections provides that a decision of the National Court is fina and conclusive and without appeal. That, of course, does not override the Supreme Court's inherent jurisdiction to review under s 155 of Constitution, but the fact remains that an order was made by Salika J on application by the first respondent, he cannot come back and ask me to review that decision.

The evidence adduced related to two incidents which the petitioner says were bribery. The Organic Law on National Elections provides at s 215 (1):

"Voiding election for illegal practices

(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."

Section 215 (3) (a) provides that:

" (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;"

"Bribery" is not defined by the Organic Law, but as Mr Yagi points out, the National Court has held that the phrase "undue influence" and the word "bribery" each have the same meaning when used in the Criminal Code (Re Menyamya Open Parliamentary Election; Bourne v Voeto [1977] PNGLR 298 and Re Koroba-Lake Kopiago Open Parliamentary Election [1977] PNGLR 328).

EVIDENCE

The dates of the election were as follows: the writ was issued on 20 April 1992 and nominations opened on 3 and closed on 9 April 1992. Polling commenced on 2 June 1992 and closed on 30 June 1992. The polling on the Island of Buka was for one day, on 24 June 1992. The incidents alleged occurred on Buka Island. It is not disputed that the relevant witnesses were listed in the electoral roll or supplementary roll for the electorate as eligible voters.

The petitioner did not personally witness any of the alleged incidents but gave evidence of his standing in the community and of meeting with chiefs and communities in Buka Island prior to the election. He said, "I was nominated by chiefs in Halia area. Also nominated by chiefs in Tsilataeo. I was also endorsed by my party the Melanesian Alliance Party". He added, "In traditional society our chiefs play a very important role in welfare of the people and in law and order, and once they make that decision it is binding on the community. In other words people in the area had to follow that decision by the chiefs" (meaning the decision to endorse his candidature). He conceded that the right to vote was enshrined as a private personal right of the individual by s 50 of the Constitution. Despite this, I formed a very strong impression that he anticipated the 100% support of these communities in their entirety and was aggrieved when that support did not materialise.

The petitioner called witnesses relating to monies paid to Koheno Rebuilding Group on 21 May 1992 and to Halia Football Club in May 1992, which he said came from the first respondent and were given with a statement that the recipients should remember the first respondent when voting. He does not seem to go as far as saying the payments were conditional on votes being cast, but he seeks to adduce evidence that statements and payments operated on the minds of the witness in this way.

The first respondent does not deny that payments were made but says they were part of his National Development Fund (variously referred to as slush fund, slash fund, and sliced fund in evidence), and were made following requests by the recipient groups. The payments were not conditional on, nor accompanied by remarks about voting.

The petitioner called two witnesses to give direct evidence about the payments to Koheno Rebuilding Group. Benedict Tukan gave evidence that he came from Kohenou and was in his village prior to the election. There was election campaigning in his area and he knew various people who were campaigning. On 21 May 1992, a Thursday, he was given a cheque by Father Lawrence Samei. It was payable to Koheno Rebuilding Fund. It became apparent in re-examination that no group or corporate body called Koheno Rebuilding Fund (or any similar name) had been in existence before 21 May 1992. The cheque was for K2,000. Mr Tukan said that when...