Bryan Kramer v Nixon Philip Duban

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 03 June 2013
• Citation: (2013) N5688
• Court: National Court
• Year: 2013
• Judgement Number: N5688

Full : EP No. 60 of 2012; Bryan Kramer v Nixon Philip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5688

National Court: Gavara-Nanu J

Judgment Delivered: 3 June 2013

N5688

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 60 of 2012

Between:

BRYAN KRAMER

Petitioner

And:

NIXON PHILIP DUBAN

First Respondent

And:

ANDREW TRAVEN, Electoral Commissioner of Papua New Guinea

Second Respondent

Madang: Gavara-Nanu J.

2013: 5,7,13 to 15,18 to 20,22,23,25 & 26 March, 8 to 12, 17 & 18 April, 03 June

PRACTICE AND PROCEDURE - Election petition – Organic Law on National and Local Level Government Elections; ss. 208(a) and (d); 209,210,215,217 and 222 – Pleadings – Demeanour of witnesses – Credibility of the witnesses not being attacked while giving evidence – Power of the Court to exclude evidence received – No weight can be given to business records adduced through a secondary source.

PRACTICE AND PROCEDURE – Election petition – Bribery and undue influence – Evidence - Standard of proof – Evidence to be weighed objectively – Whether witnesses gave credible evidence and whether they corroborated each other on material aspects of their evidence.

Cases cited:

Aluago Alfred Kaiabe v. Francis Potape Mulungu (2008) N3329

Ben Micah v. Ian Ling Stuckey (1988) N1790

Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commission of Papua New Guinea (No.1) N5213

Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea of Papua New Guinea (No. 2) N5214

Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral

Commissioner of Papua New Guinea (No. 3) N5215

Mesulam Tomalana v. Rabaul Pharmacy [1991] PNGLR 65

Neville Bourne v. Manesseh Voeto [1977] PNGLR 298

Paru Aihi v. Sir Moi Avei [2004] PNGC 250, N2523

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Re James Eki Mopio [1981] PNGLR 416, SC 211

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Waranaka v. Dusava (2009) SC 980

Other cases cited:

Brown v. Dunn (1893) 6R 67 (HL)

Legislation and other laws cited:

Organic Law on Duties and Responsibilities of Leadership

Organic Law on National and Local Level Government Elections

Criminal Code.

Counsel:

Y. Wadau, for the petitioner

S. Jubi, for the 1st respondent

J. Umbu, for the 2nd respondent

1. GAVARA-NANU J: The petitioner is challenging the election of the first respondent as Member for Madang Open electorate in the 2012, general election which was declared on 24 July, 2012. The first respondent polled 8,483 votes and the petitioner who was the runner up polled 7,939 votes, thus a marginal difference of 544 votes between them.

2. The petition was filed on 31 August, 2012, it was later amended with leave on 31 October, 2012 (the petition).

3. The petition survived three interlocutory applications made by both respondents for it to be dismissed. The first application was by the first respondent, for the alleged failure by the petitioner to comply with the Court’s directions. The application was dismissed. The second application comprised of two objections to competency filed separately by the two respondents. Both applications were heard together and they were dismissed. The third application was by the first respondent to stop the trial at the conclusion of the petitioner’s case. This application was partly successful as it resulted in two grounds in paragraphs 5.3 and 5.5 of the petition being dismissed. The remaining two grounds in paragraphs 5.2 and 5.4 were ordered to proceed to trial. The Court published its decisions in all three applications: Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.1) N5213; Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No. 2) N5214 and Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No. 3) N5215.

4. The petition is pleaded in six paragraphs. The two grounds of the petition are pleaded in paragraph 5 which has five sub-paragraphs, viz. 5.1 to 5.5. The introductory statement of the paragraph gives the overview of the grounds of the petition, viz. bribery, attempted bribery and undue influence. In paragraph 5.1, the petitioner pleads the period in which the alleged corrupt, improper and illegal practices as prescribed under ss. 102, 103 and 106 of the Criminal Code and s. 215 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE), were allegedly committed.

5. In paragraph 5.2 it is alleged that on Friday 20 April, 2012, at the Silopi parish youth camp held at Aufan village in the Transgogol Local Level Government area of Madang Province, which is in Madang Open electorate, the first respondent handed out K50 and K100 notes freely to the people. It is alleged that the first respondent gave out money to the people to induce them to vote for him in the 2012, general election. Names of eleven individuals who allegedly received money from the first respondent are pleaded in this paragraph. Two of those are Jeffery Sambe of Aufan village and Florence Borgor of Kuyambun village. It is alleged that Jeffery Sambe received K50 and Florence Borgor received K100. These two people gave evidence for the petitioner. They are both registered voters for the Madang Open electorate and they voted in the 2012, general election.

6. In paragraph 5.4 it is alleged that on 11 June, 2012, the first respondent presented a Gaming Board cheque for K300,000.00 to Yagaum Lutheran Rural Hospital (Yagaum Hospital) which was procured through the Office of the Prime Minister. It is alleged that when presenting the cheque the first respondent intended to unduly influence and induce those who were at the cheque presentation to vote for him in the 2012, general election. He did this by falsely telling the people that he was personally donating the money to the hospital. The cheque was received by the hospital Administrator, Mrs. Belid Pitau in the presence of a number of hospital Board members, management and staff and some people from the surrounding communities. The total number of people that witnessed the cheque presentation was around 200. The names of four individuals who the first respondent allegedly intended to unduly influence and induce to vote for him in the 2012, general election are pleaded in this paragraph. One of those is Sera Dadok, a member of the hospital Board. He gave evidence for the petitioner. He is a registered voter for the Madang Open electorate and voted in the 2012, general election.

7. At the pre-trial conference the petitioner indicated that he would call eleven witnesses. However, at the hearing he only called eight. The other three, namely Ninam Muke, Ponjam Gomniba and Kac Fanu could not be called. In the case of Ninam Muke he had a death in his family, in the case of Ponjam Gomniba he was said to be very sick and in the case of Kac Fanu, Mr Young Wadau of counsel for the petitioner decided not to call him because his evidence was similar to the evidence of the other witnesses of the petitioner who already gave evidence. All three were listed as witnesses for the petitioner. This is confirmed by the notice filed by the petitioner under s. 35 of the Evidence Act, Chapter No. 48, (Doc. No.39).

8. Despite being listed as a witness for the petitioner, Kac Fanu was later called as a witness for the first respondent. Because of this, the affidavit he swore in support of the petitioner as a witness for the petitioner was tendered in cross-examination by Mr. Wadau to rebut the oral evidence he gave for the first respondent and the two affidavits he swore for the first respondent. The petitioner also called an extra witness, namely Fuawawe Borgor, mother of Florence Borgor to give rebuttal evidence against two of the first respondent’s late witnesses. Thus the petitioner ended up calling a total of nine witnesses.

9. Kac Fanu is the Deputy Chairman of Yagaum Hospital Board and is one of the four people named in paragraph 5.4 of the petition who witnessed the cheque presentation by the first respondent at Yagaum Hospital. He is also one of those who the first respondent allegedly induced or attempted to induce to vote for him in the 2012, general election.

10. All the witnesses for the petitioner except Fuawawe Borgor swore affidavits which were all tendered in evidence.

11. At the start of the trial the application by Mr. Wadau to have the affidavits of the three witnesses, including that of Kac Fanu tendered in evidence was unsuccessful. The application was opposed by counsel for the respondents because the three deponents of the affidavits were not made available for cross-examination.

12. Turning now to the events of 20 April, 2012, at the youth camp at Aufan village, the two prominent events to be noted are the first respondent's speech and the first respondent allegedly giving money freely to the people. Firstly, in the speech the first respondent is alleged to have told the people that he was there to campaign and declared to the people that he was a...