Application under s155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections, 1997; David Arore v John Warisan and the Electoral Commission of Papua New Guinea (2015) SC1448

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 03 August 2015
• Court: Supreme Court
• Citation: (2015) SC1448
• Docket Number: SC REVIEW (EP) NO 05 OF 2015
• Year: 2015
• Judgement Number: SC1448

Full Title: SC REVIEW (EP) NO 05 OF 2015; Application under s155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections, 1997; David Arore v John Warisan and the Electoral Commission of Papua New Guinea (2015) SC1448

Supreme Court: Makail, J

Judgment Delivered: 3 August 2015

SC1448

PAPUA NEW GUINEA

[IN THE SUPREME C OURT OF JUSTICE]

SC REVIEW (EP) NO 05 OF 2015

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS, 1997

BETWEEN

DAVID ARORE

Applicant

AND

JOHN WARISAN

First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2015: 20th July & 03rd August

SUPREME COURT REVIEW – ELECTION PETITION – Application for leave to review – Review of National Court decision – National Court upheld petition – Election of successful candidate declared void on account of bribery – Two instances of bribery – Grounds of review – Alleged gross error in trial judge’s findings of fact – Whether gross error established – Constitution – Section 155(2)(b) – Organic Law on National and Local-level Government Election – Section 215 – Criminal Code – Section 103.

Cases cited:

Erie Ovako Jurvie v. Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935

Application by Herman Joseph Leahy (2008) SC855

Application of Ludwig Patrick Schulze (1998) SC572

Kasap v.Yama [1998-1999] PNGLR 81

Philomena Kassman v. Kila Igaba & Electoral Commission (2012) SC1211

Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1244

Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2014) SC1337

Jim Nomane v. Wera Mori & Electoral Commission (2013) SC1242

Neville Bourne v. Veoto [1977] PNGLR 298

Alphonse Moroi v. Kila Haoda & Electoral Commission (2014) N5834

Counsel:

Mr John Napu, for Applicant

Mr Phillip Waraniki, for First Respondent

No appearance, for Second Respondent

RULING ON APPLICATION FOR LEAVE TO REVIEW

03rd August, 2015

1. MAKAIL, J: Following a re-trial on 25th and 26th May 2015, on 29th May 2015 the National Court at Popondetta constituted by Justice Sakora upheld an election petition and declared the election of the Applicant Mr David Arore as Member for Ijivitari Open electorate in the Northern Province void on account of two instances of bribery under Section 103 of the Criminal Code. As a consequence, a by-election was required.

Principles of Leave

2. On 11th June 2015, Mr Arore filed this application and sought leave to review the decision of the National Court pursuant to Section 155(2)(b) of the Constitution. The power to grant leave to review is discretionary. The principles relevant to the exercise of discretion are settled. Counsel for Mr Arore has correctly cited them in his written submission. The onus is on Mr Arore to show why the discretion should be exercised in his favour. He must establish that there is a meritorious point of law that is arguable and if he is challenging the trial judge’s findings of fact, he must show that there is a gross error on the face of the evidence or that the finding of fact is so outrageous or absurd and such a finding will result in injustice: Erie Ovako Jurvie v. Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935; Application by Herman Joseph Leahy (2008) SC855; Application of Ludwig Patrick Schulze (1998) SC572 and Kasap v.Yama [1998-1999] PNGLR 81.

3. Unlike an application for leave to appeal under Section 14 of the Supreme Court Act where the discretion is readily exercised so long as the Applicant is able to, amongst other things, establish an arguable or prima facie case, in an application for leave to review a decision in an election petition case, the discretion is not to be exercised too readily or loosely but after a careful perusal of each proposed ground of review and any relevant material relied upon by the parties. It requires a higher standard of scrutiny of the materials supporting the application before the Court and from such scrutiny, it is established that there is a clear error which has a very high chance of success: Philomena Kassman v. Kila Igaba & Electoral Commission (2012) SC1211; Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1244 and Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2014) SC1337.

National Court Proceedings

4. In the National Court, the First Respondent relied on two instances of bribery. The first case of bribery is that Mr Arore gave K2,000.00 to Tommy Pukari and told Mr Collin Amoko to go and get the money from Tommy Pukari and think of him. Mr Amoko went and collected the money from Mr Pukari and distributed the money to village people at Hetaga village. He retained K300.00 for himself and his family and voted for Mr Arore.

5. The second case of bribery is that Mr Arore gave K50.00 to Mr Mishael Okasi. The money was given to Mr Okasi’s younger brother Allan Tindepa on 08th July 2012 at Barisari village in Popondetta. The next day 09th July 2012 Mr Arore arrived at Barisari village and campaigned.

6. The trial in the National Court was based on affidavit evidence. The First Respondent called two witnesses. They were Mr Amoko and Mr Okasi and they were cross-examined by counsel for Mr Arore. Mr Arore did not call any evidence in rebuttal. The trial judge found that the evidence of these two witnesses was not discredited to such an extent where it rendered their evidence lacking in credibility and reliability and should be rejected. To borrow the words of the trial judge, defence counsel went on a “fishing expedition”, and as a result, was unable to put a dent in the evidence of the petitioner’s case.

7. In addition, as Mr Arore did not call evidence to refute the evidence of these witnesses, his Honour found that their evidence was unchallenged. For these reasons, his Honour was satisfied that the First Respondent had proven to the entire satisfaction of the Court that the act of giving money to Mr Amoko and Mr Okasi constituted bribery under Section 103 of the Criminal Code.

Proposed Grounds of Review

8. Mr Arore relied on eight grounds but in submissions and after the Court sought further clarification from his counsel in relation to the specific issues raised in these grounds, it became clear that they raised two main issues for consideration. They are:

8.1. Whether the evidence was sufficient and credible to establish the allegations of bribery; and

8.2. Whether the trial judge should have applied the standard of proof of beyond reasonable doubt?

Applicant’s Submissions

9. It was difficult trying to follow the submission of Mr Arore’s counsel because it lacked clarity and was convoluted. As a Court in the adversarial system of justice, it is not its function to conduct an inquiry as to the kind of submissions parties will make in support of their respective cases, save to seek clarification on a point or issue. That function belongs to the parties, whether appearing in person or represented by counsel. On this basis and doing the best as I can to work out the arguments put forward by counsel, the submission can be summarised as follows; Mr Arore attacks the trial judge’s finding that the evidence of Mr Amoko and Mr Okasi was not discredited and remained unchallenged on the following grounds:

9.1. There were inconsistencies in Mr Amoko’s evidence. For example, he received K2,000.00 and yet he voted for Mr Arore. When asked during cross-examination if he was a supporter of Mr Arore, he denied. But when pressed further, he admitted that he was. He went further by saying that he ran Mr Arore’s campaign in 2007 election and also in the 2012 election.

9.2. Another example is where when asked by counsel as to how much he distributed out of K2,000.00, Mr Amoko said he distributed K20.00 to K40.00 amongst individuals and K200.00 to K500.00 amongst several groups. If that were so, K2,000.00 would not be sufficient to distribute to the people and groups.

9.3. The evidence of Mr Amoko was illogical and did not make sense because even though he claimed that he was bribed by Mr Arore, he did vote for him.

9.4. Finally, Mr Amoko received the money from a third party, namely Mr Tommy Pukari. Conversely, he did not give evidence that Mr Tommy Pukari gave K2,000.00 to him with the authority or knowledge of Mr Arore.

9.5. As to Mr Okasi’s evidence, he said that he received K50.00 from Mr Allan Tindepa on 08th July 2012 at Basrisari village. He did not say that Mr Arore gave K50.00 to him. On 09th July 2012 Mr Arore arrived at Barisari village. On this evidence alone, and given that it was not alleged that Mr Tindepa gave the money with the authority or knowledge of Mr Arore as required by Section 215(3) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”), the evidence fell short of establishing bribery by Mr Arore.

10. Mr Arore ran his defence on the premise that firstly, Mr Amoko was his supporter and campaigned for him. Based on this acknowledgment, he voted on his...