Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ
• Judgment Date: 23 September 1977
• Citation: [1977] PNGLR 298
• Court: National Court
• Year: 1977
• Judgement Number: N108

Full Title: Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298

National Court: Frost CJ

Judgment Delivered: 23 September 1977

1 Elections—Parliament—disputed election petitions—illegal practice—undue influence—definition of—degree of proof required—admissibility of hearsay evidence

2 PARLIAMENT—Elections—Disputed election petition—Election of Member of Parliament—Illegal practices—"Undue Influence"—Definition of—Standard of proof required—Admissibility of hearsay evidence—Admissibility of evidence as to how elector voted—Organic Law on National Elections s215, s217—Criminal Code s102

3 EVIDENCE—Admissibility—Hearsay—Hearsay evidence admissible under s217 of Organic Law on National Elections—Weight to be attached thereto.

S217 of the Organic Law on National Elections provides: REAL JUSTICE TO BE OBSERVED. The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

S217 of the Organic Law on National Elections provides: REAL JUSTICE TO BE OBSERVED. The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

S215(1) of the Organic Law on National Elections provides that if the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void. In proceedings by way of petition before the Court contesting the validity of an open parliamentary election on the ground of undue influence;

Held:

(1) The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference.

Salford Election Petition (1869) 20 LT NS 120; Northallerton Election Petition (1869) 21 LT NS 113 at 116 and Re Welland Election (1875) HEC 187 applied.

In re the Wairau Election Petition (1912) 31 NZLR 321 distinguished.

(2) Where the ground relied upon in such proceedings is undue influence it will be necessary to prove undue influence as constituted by s102 of the Criminal Code.

(3) To constitute undue influence under s102 of the Criminal Code it will be sufficient to prove that a person by fraud prevented or obstructed the free exercise of franchise by an elector, fraud for the purposes thereof including a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false with the intention that the elector should act upon it; any such instance of fraud preventing or making more difficult the elector's exercise of his right to vote falling within the section. It is not necessary to prove that the elector was actually induced to vote for the candidate.

Semble

an intention to influence the elector to vote in favour of a candidate or to refrain from voting against him would fall within the section.

Woodward v Maltby [1959] VR 794 at 798–799 referred to.

(4) Under s217 of the Organic Law on National Elections, hearsay evidence may be admitted in such proceedings although the weight to be attached thereto may not be the same as with direct evidence.

(5) Where the substantial merits of the case require it, as in the case of undue influence, evidence as to how an elector voted may be admitted, notwithstanding the special provisions in s218(2) of the Organic Law on National Elections.

(6) On the evidence, it had been proved to the entire satisfaction of the court that the respondent had (by telling a large gathering of electors that they would be fined if they did not vote for him and that if they did vote for him they would not be fined or pay any money) prevented or obstructed the free exercise of the franchise by an elector which amounted to undue influence, and accordingly the election should be declared void in accordance with s215(1) of the Organic Law on National Elections.

Petition.

This was a petition to the National Court, sitting as a court of disputed returns, brought pursuant to s206 of the Organic Law on National Elections contesting the validity of an open parliamentary election on the ground of undue influence.

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Frost CJ: This is a petition by Mr Neville Bourne who was a candidate at the 1977 general elections for the electorate of Menyamya Open. The candidate elected was Mr Manesseh Voeto. There were seven candidates, Mr Manesseh Voeto scored approximately 5,000 votes, the next candidate obtained approximately 2,350 and the petitioner Mr Bourne 1650, making a total poll of 12,500 votes approximately.

Mr Bourne lives in the village of Umba about 25 miles from Menyamya by foot–track. He is the only European in the area, that is, within a radius of about 25 miles; he is a missionary and a linguist and apparently is engaged in work advancing the development of the area in making airstrips and roads. In the eight years that he has been there he has learnt the local language.

Mr Manesseh Voeto, the respondent, also lives in the Menyamya sub–province. He was educated to standard 7 in 1964—he took great advantage of his education and it is to his credit—an educational level which in 1964 few other Menyamya men had obtained. He became a livestock supervisor for the Department of Agriculture, then trained to become a pastor and was for a time a Lutheran pastor in Menyamya. He became the president of the Lutheran Church, founded the Kukukuku Co–operative Society, and in due course was elected the Member for Parliament for the electorate in the 1972 elections.

Now, let me say something about the electorate. The Menyamya Open electorate is part of the Morobe Province and is situated in the Central Ranges west of Lae. The country is mountainous and difficult. Menyamya is the only town, with its government buildings, court house and post office, schools and nearby missions. Some development has occurred. There are cash crops and some schools, but the sub–province remains accessible to Lae only by air and development has not progressed to the extent that there is a road from Lae to Menyamya. It has a population of about 37,000 and, according to Mr Sabadi, there are about 19,000 on the Rolls, but it appears that the figure may be a little less. There are two sub–divisions, Menyamya and Aseki. According again to Mr Sabadi, the people are generally illiterate, and therefore an easy mark for a candidate out to intimidate them by threatening government action.

The ground of the petition is that Mr Manesseh, during the conduct of the said elections "unduly influenced persons to vote for him by threats of court action and fine". The Organic Law on National Elections under which this petition is brought provides that if the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election if he is the successful candidate shall be declared void (s215(1)). The Organic Law on National Elections thus gives full recognition to the common law principle that the Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void. Crouch v Ozanne (1910) 12 CLR 539.

It will be noted that in s215(1) of the Organic Law on National Elections there is no requirement, as in the case of other illegal practices, that the Court should be 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. The mandatory consequence that the election is to be avoided lessens the burden on the Judge. His duty, onerous as it is, is only to be satisfied...