John Warisan v David Arore and the Electoral Commission of Papua New Guinea (2015) SC1418

• Jurisdiction: Papua New Guinea
• Judge: Gavara Nanu J, Yagi, & Poole JJ
• Judgment Date: 25 March 2015
• Court: Supreme Court
• Citation: (2015) SC1418
• Docket Number: SC REVIEW (EP) NO 50 of 2013
• Year: 2015
• Judgement Number: SC1418

Full Title: SC REVIEW (EP) NO 50 of 2013; John Warisan v David Arore and the Electoral Commission of Papua New Guinea (2015) SC1418

Supreme Court: Gavara Nanu J, Yagi, & Poole JJ

Judgment Delivered: 25 March 2015

SC1418

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 50 OF 2013

BETWEEN:

JOHN WARISAN

Applicant

AND:

DAVID ARORE

First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Gavara-Nanu J, Yagi, & Poole JJ

2014: 28 April

2015: 25 March

ELECTION PETITION – Practice and Procedure – Application to stop the case after the petitioner concluded its case – Principles applicable to such applications – Trial judge entertaining wrong principles – Such wrong principles influencing the trial judge’s decision – Trial judge taking strict proof approach as a result of applying wrong standard of proof.

ELECTION PETITION – Practice and Procedure – Procedural irregularities – Such irregularities not pleaded as grounds for review – Power of the Court to consider the irregularities - Whether irregularities fatal.

ELECTION PETITION – Practice and Procedure – Evidence - Affidavit materials which the trial Court considered not included in the Review Book – New evidence considered by the trial judge not disclosed to the parties – A witness for the petitioner being recalled by the Court to be asked questions relating to the new evidence – Petitioner’s counsel not being allowed by the Court to ask questions arising from questions put to the witness by the Court regarding the new evidence. Petitioner's witness not being allowed by the Court to answer the question put to him by counsel for the petitioner.

ELECTION PETITION – Practice and Procedure - Evidence – Trial judge disregarding credible evidence as a result of strict proof approach - Trial judge adopting criminal standard of proof - No reason given by the Court for disregarding credible evidence given by a witness.

ELECTION PETITION – Practice and Procedure – Listings Court directing that the Common Roll be produced at the trial – Parties fail to produce the Common Roll at the hearing – Electoral Commission being the custodian of Common Rolls obligated to produce the Common Roll at the hearing.

Cases Cited:

Papua New Guinea Cases

Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5215

Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5688

Desmond Baira v. Kilroy Genia (1998) SC 579

Dr Allan Marat v. Hanjung Power Ltd (2014) SC1357

Hon. Patrick Pruaitch, MP v. Cronox Manek (2010) SC1052

Kawaso Ltd v. Oil Search PNG Ltd SC1218

Leonard Louma v. Douglas Tomuriesa & Others (2012) N4920

Les Curlewis v. David Yuapa (2013) SC1274

Neville Bourne v. Manasseh Voeto [1977] PNGLR 298

Ramu Nico Management (MCC) Ltd v. Eddie Tassie (2010) SC1075

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Settin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488

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

The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 386

The State v. Paul Kundi Rape [1976] PNGLR 96

Other cases cited:

Air Marshall McCormack and Anor v. Vance [2008] ACTCA 16

House v. The King (1936) 56 CLR 499

Micallef v. ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274

Counsel:

P. Wariniki, for the Appellant.

J. Napu, for the First Respondent

M. Kuma, for the Second Respondent

25th March, 2015

1. BY THE COURT: The applicant who was the petitioner in EP No. 44 of 2012, is seeking review of the decision of Gabi J, given on 23 August, 2013, dismissing the entire petition at the conclusion of the petitioner’s (applicant) case following an application by the respondents to stop the case.

2. The applicant alleged fourteen grounds of bribery against the first respondent in the petition. The respondents raised objections to competency against all fourteen grounds of bribery. The Court found that grounds 1, 2, 5 and 7 were competent and ordered them to be tried. The remaining grounds were found to be incompetent and were dismissed.

3. At the start of the trial, ground 1 was abandoned by the applicant when the witness he was going to call in support of the ground switched sides. Thus, only grounds 2, 5 and 7 were tried.

4. The facts alleged in respect of each of the above three grounds can be summarised as follows:

i. Ground 2.

On 16 June, 2012, during the general election the first respondent visited Ganjiga village in the Ijivitari Open Electorate. One of applicant’s supporters, one Alfred Mokoru who claimed to be an elector was in the village. The first respondent addressed about 40 people in the village. In his speech, the first respondent said: “I am not a new person, I am here to show my presence as a sitting member and a candidate for this 2012 election”. After the speech the first respondent took out K2,000.00 in cash in a bundle of K50.00 notes and put it on a mat. The first respondent also gave out foodstuff, T shirts and a generator, he told those who were gathered to share the money and the goods. The first respondent also told the gathering: “Mi raun tasol. Think of me during voting. Sapos yu no votim mi, mi no wari, bai yu kirap nogut bai mi win”. In English: “I am just roaming around. (Think of me during voting). If you do not vote for me I am not worried, you will be shocked that I will win (sic.)”. The first respondent further said: “If you Maisin people don’t vote for me, my office door will be closed or won’t entertain Maisin people”. (Maisin is an ethnic group from Tufi area of the Oro Province). The people who witnessed the distribution of cash and goods are: Stela Gombi, Aida Kania, John Gil Rarama, Elizabeth Rarama, Alfred Rerebin, Suckling Nonisa, Eunice Nonisa, Margaret Nonisa, Henson Obegi, Aaron Kasai, Betty Obegi, Reuben Seri, Monalisa Kasai, Aileen Dunela Bobora, Wilfed Awaita, Wilma Rarama, Deith Sagiribo, Neville Kania, Viginia Kania, Nelly Terina, Geraldine Terina, Cedric Rarama, Pauline Asa, Davidson Nonisa, Bradley Keibe, Ailyn J. Dumu, Wilfred Awaita, Lloyd Bairan, Mollyna Bairan, Lelah Bairan J. Kasona, Karus Kasona and Delilah Kania. These people received the cash and goods from the first respondent and they subsequently voted for the first respondent.

ii. Ground 5.

On 13 June, 2012, the first respondent was to visit the communities of Hegata, Auga and Kmoburo of the Isuga tribal village. The meeting was to take place at a family block belonging to Mr. Colin Amoko who claimed to be an elector. The respondent did not attend the meeting but sent his agent Richard Wai to attend the meeting. Mr. Wai arrived to a rousing welcome, he apologized to the people that the first respondent was unable to attend the meeting and passed the first respondent’s apologies. As Mr. Wai rose to leave the gathering after the meeting, he told Colin Amoko to see the first respondent the next day to collect the cash for the community. On the morning of Thursday 14 June, 2012, Colin Amoko was in the company of the first respondent’s electoral staff in a gold coloured Nissan Navara, Double Cab Registration Number UAA.936. Colin Amko and the first respondent’s staff drove around town in search of the first Respondent. They saw the first respondent driving a light brown 5 door Toyota Landcruiser Registration Number BDI.477 towards the PNG Water Board Manager Ross Sau’’s house. Collin Amoko and the first respondent’s staff saw the first respondent sitting on a platform under a tree in Ross Sau’s yard. The first respondent called to Collin Amoko and said: “Collin makmak blo yu istapwantaim Tommy, go lukim em na kisim na tingim, em bikpela moni tumas, yu no ken kisim na haitim. Yu kisim igo na skelim wantaim komuniti, na tingim mi. Yu kisim igo na skelim wantaim komuniti.” In English: “Collin your money is with Tommy. Go and collect it and remember its (sic.) big money. You must not get it and hide it. You take it and distribute it to the community and think of me.” Collin Amoko then walked over to Tommy Pukari who by this time had walked to the 5 door Toyota Landcruiser, Tommy Pukari then got K2,000.00 out of his waist bag all in K20 notes and gave it to Collin Amoko. Collin Amoko then distributed the money, he gave K60.00 to the boys that drove him there for their fuel, K500 to Danston Kiman of Auga village, K200 to Steven Wuri of Komburo/Musa community, K300 for his own family, K100 to Chief Stanton Paradeba of Hegata village. The rest of the money was distributed in K20 and or K40 among the electors in Hegata village. The money was said to have been distributed according to the instructions given by the first respondent.

On Saturday 23 June, 2012, Ben Larry an associate of the first respondent delivered two bags of Star rice, half bale sugar, sixteen assorted tinned fish, two cartons of noodles, one dozen packets of coffee and coffee mate and six packets of tea leaf to Collin Amoko’s residence. These were distributed at Collin Amoko’s residence on the polling day on 26 June, 2012. The...