Patrick Pruaitch v The Hon. Anderson Mise and Others

• Jurisdiction: Papua New Guinea
• Judge: Frank, J
• Judgment Date: 04 January 2024
• Neutral Citation: N10677
• Citation: N10677, 2024-01-04
• Counsel: Mr G. Sheppard & Mr P. Tabuchi, for the Petitioner,Mr A. Manase, for the First Respondent,Mr M. Saka, for the Second Respondent
• Docket Number: EP NO. 23 OF 2022 (IECMS)
• Hearing Date: 27 February 2023,28 February 2023,01 March 2023,31 March 2023,11 April 2023,12 April 2023,28 April 2023,04 January 2024
• Court: National Court

N10677

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 23 OF 2022 (IECMS)

In the Matter of Disputed Return for the Aitape Lumi Open Electorate

Between:

Patrick Pruaitch

Petitioner

v.

The Hon. Anderson Mise, MP

First Respondent

and

Electoral Commission

Second Respondent

Wewak & Port Moresby: Frank, J

2023: 27^th & 28^th February, 1^st & 31^st March, 11^th, 12^th & 28^th April

2024: 4^th January

ELECTIONS — Disputed election petition — Trial — Bribery — Criminal Code ss 97B and 103

ELECTIONS — Disputed election petition — illegal practice — Bribery — meaning and scope of Organic Law On National And Local-Level Government Elections, s.215 — Criminal Code, s. 97B

Held:

The offence of bribery in s.97B is an illegal practice and constitutes bribery for the purpose of s.215 of the Organic Law On National And Local-Level Government Elections.

Cases Cited:

Electoral Commission v Pruaitch (2023) SC2415

Electoral Commission v Pruaitch (2023) SC2416

Amet v Yama (2010) SC1064

Waranaka v Dusava (2009) SC980

Ganasi v Subam (2013) SC1277

Warisan v Arore [2015] PNGLR 315

Tulapi v Lagea (2013) N5323

Kikala v Mangape (2013) SC1295

Peter Isoaimo v Paru Aihi & EC (2012) N4921

Hagahuno v Tuke (2020) SC2018

Duma v Puk (2019) SC1817

Biri v Ninkama [1982] PNGLR 342

Dekena v Kuman (2018) SC1715

Holloway v Ivarato [1988] PNGLR 99

Kuberi Epi v Tony Farapo & EC (1983) SC247

Yagama v Uguro (2018) N7135

Singirok v Fairweather (2014) N5577

Kaiwi v Tongamp (2018) N7208

Aihi v Isoaimo (2013) SC1276

Aihi v Isoaimo (2023) N10158

Potape v Undialu (2018) SC1680

Andrew Wabiria v Payale Elo [1977] PNGLR 328

Okuk v Nilkare [1983] PNGLR 28

Jabala v Okuk [1983] PNGLR 69

Bourne v Voeto [1977] PNGLR 298

Kopaol v Embel (2003) SC727

Diau v Gubag (2004) SC775

Agonia v Karo [1992] PNGLR 463

Nomane v Mori (2013) SC1242

Pokaya v Marape (2018) N7234

Ilaibeni v Morris (2023) N10154

Legislations Cited:

Organic Law On National And Local-Level Government Elections

Criminal Code Act Ch. 262

Election Petition Rules 2017 (as amended)

District Development Authority Act 2014

Electoral Law (National Elections) Regulation 2007

Constitution

Text & Materials Cited:

Little Oxford English Dictionary & Thesaurus (2^nd edition) Oxford University Press, 2008

Bird, Osborn's Concise Law Dictionary, Seventh Edn., Sweet & Maxwell, London 1983

www.oxfordlearnersdictionary.com

Petition

This was a petition filed pursuant to s.206 of the OLNLLGE disputing the validity of an election outcome on the ground of bribery by the successful candidate.

Counsel:

Mr G. Sheppard & Mr P. Tabuchi, for the Petitioner

Mr A. Manase, for the First Respondent

Mr M. Saka, for the Second Respondent

Young & Williams Lawyers: Lawyers for the Petitioner

Manase & Co. Lawyers: Lawyers for the First Respondent

Nicholas Tame Lawyers: Lawyers for the Second Respondent

JUDGMENT

4^th January, 2024

1 Frank J: CASE BRIEF: The petitioner and the first respondent contested the National General Elections for the seat in the National Parliament (“Elections”) as the parliamentary representative for the Aitape-Lumi Open electorate (“Electorate”). The first respondent was declared as the winner in that contest. Aggrieved by that outcome, the petitioner seeks to upset it by his amended petition (“Petition”) filed pursuant to the Organic Law On National And Local-Level Government Elections (“Organic Law”).

2 At the commencement of trial on 25 February 2023 I heard and on 21 March 2023 determined objections to the competency of the Petition (“Objections Ruling”).

3 This Objections Ruling was the subject of applications to the Supreme Court on 2 occasions, the first of which was determined on 30 May 2023: Electoral Commission v Pruaitch (2023) SC2415.

4 The second of these applications was determined on 5 July 2023: Electoral Commission v Pruaitch (2023) SC2416.

5 The petitioner's evidence comprises of the following:

5.1 Affidavits of –

(a) Eunice Noki sworn 9 and filed 11 November 2022 – exhibit “P1”;

(b) Patrick Pruaitch sworn and filed 25 October 2022 — exhibit “P2”;

(c) Jack Siroi sworn and filed 25 October 2022 — exhibit “P3”; and

5.2 The sworn testimonies of Mr Pruaitch and Mr Siroi.

6 Additionally, prepared and filed by consent is a typed transcription of the contents of the audio recording of the first respondent's speech (“Speech”) adduced in a USB stick device which comprises annexure JS-1 to Mr Siroi's affidavit.

7 The respondents did not call any evidence.

8 At the trial, after the close of the respondents' case, counsel made oral submissions along their written submissions¹ which I have considered, references to which are made herein.

9 In the Petition, the petitioner alleges that the first respondent committed bribery, a ground under s.215(1) of the Organic Law, by 5 instances upon which the 5 allegations (“Counts”) under s.97B of the Criminal Code² are based. The 4 Counts under s.103 are founded on 4 of those 5 instances alleged.

The Law

10 Section 215(1) of the Organic Law provides:

215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is 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.

[emphasis added]

11 As is common ground between the parties³, the petitioner must prove these elements to the entire satisfaction of the court: Amet v Yama (2010) SC1064; Waranaka v Dusava (2009) SC980; Ganasi v Subam (2013) SC1277; Warisan v Arore [2015] PNGLR 315; Tulapi v Lagea (2013) N5323; Kikala v Mangape (2013) SC1295.

12 I now consider the Counts of bribery under s.103(a)(iii).

Bribery under s.103(a)(iii)

13 Count 1 is pleaded in para.20 of the Petition in these terms:

On Tuesday, the 5^th day of July, 2022, in Papua New Guinea, as the bank statement for the First Respondent's account number 1001328839 held at Bank South Pacific (“the First Respondent's Bank Account”) demonstrates, the First Respondent (a candidate in the ALOE⁴ for the 22NGE⁵) gave to Moses Kempa, a person employed in the Public Service (as defined in s.83A (g) of the Criminal Code) as Assistant Returning Officer for West Wapei Rural LLG in the ALOE by the Second Respondent, by transferring from the First Respondent's bank account to Moses Kempa's bank account, the sum of K200, with the intention of procuring, causing or inducing Moses Kempa to endeavor to procure the return of the First Respondent as the member for ALOE at the 22NGE, and thereby committed an act of bribery contrary to s.103 (a) (iii) of the Criminal Code, and s.215 (1) of the Organic Law.

14 Counts 2 to 4 are in similar terms, respectively pleaded in paras. 24, 28, and 32 of the Petition, differentiated only by the date, amount, name of the Assistant Returning Officer (“ARO”) and the Local-level Government (“LLG”) area.

15 In summary, the allegation in each of Counts 1 to 4 is that on the date specified in the Count the first respondent paid the amount specified in the Count to the person named in the Count to procure, cause or induce the person paid to endeavour, in the discharge of his functions as the ARO for the LLG area specified in the Count, to procure his return as the winning candidate for the Electorate, the particulars being:

15.1 Count 1: K200.00, paid on 5 July 2022 to Mr Kempa, the ARO for the West Wapei LLG;

15.2 Count 2: K1,000.00, paid on 22 July 2022 to Mr Kempa, the ARO for the West Wapei LLG;

15.3 Count 3: K250.00, paid on 11 July 2022 to Clement Wirye, the ARO for the East Wapei LLG; and

15.4 Count 4: K1,000.00, paid on 22 July 2022 to Mr Wirye, the ARO for the East Wapei LLG.

16 It is settled law that bribery under s.103 constitutes bribery for the purpose of s.215 of the Organic Law: Waranaka v Dusava (supra); Peter Isoaimo v Paru Aihi & EC (2012) N4921; Amet v Yama (supra); Ganasi v Subam (supra); Kikala v Mangape (supra); Warisan v Arore (supra); Hagahuno v Tuke (2020) SC2018.

17 Section 103(a)(iii) provides:

103. Bribery.

A person who—

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election;

(b) – (g) … [DELETED]

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

[emphasis added]

Determination of the Counts

18 During submissions, the respondents raised objections to the competency of each Count. I consider these first. First, the respondents submit⁶ that each Count is incompetent as insufficient facts have been pleaded in breach of s.208(a) of the Organic Law as:

18.1 the facts must be pleaded under Part B of a petition;

18.2 the grounds must be pleaded under Part C of a petition; and

18.3 the facts pleaded under Part B paras. 1 to16 of the Petition are not the relevant and material facts which might...