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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 23 October 1992
• 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

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

1 Elections—Parliament—petition disputing election—alleged bribery—application to strike out—failure to comply with Organic Law on National Elections s208(a)—facts required to plead bribery must assert facts necessary to establish crime—element of intention must be pleaded—standard of proof—Organic Law on National Elections s208(a) and Organic Law on National Elections s208(d)

2 Criminal law—bribery—s103 Criminal Code—corrupt practices—s104 Criminal Code

3 SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Badui v Philemon and Others (Unreported) 22 September 1992, Holloway v Ivarato [1988] PNGLR 99, Siaguru v Unagi [1987] PNGLR 372 and Mapun Papol v Antony Temo and The Electoral Commission [1981] PNGLR 178 referred to

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

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

The first respondent now challenges the validity of this petition on two grounds. The first ground is that contrary to s208(a) the petition fails to set out sufficient relevant material facts that are relied on to establish the grounds of bribery. The second is that contrary to s208(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 s208(d) is obligatory. The Supreme Court in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342 has made it clear that requirements of this subsection must be strictly complied with and this decision was recently followed by Hinchliffe J in Badui v Philemon (1992) N1114.

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 supply 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 witness's 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 s208(d) to supply his normal residential address when he nominate 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 the grounds without more does not satisfy the requirement of s208(a) of the Organic Law . . . What are sufficient facts depends on facts alleged and the grounds those facts seek to establish. Any thing 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 s103 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 five 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 s103 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 because for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed...