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Koroba, Re [1977] PGNC 23; [1977] PNGLR 328 (8 October 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 328 - Re Koroba-Lake Kopiago Open Parliamentary Election: Andrew Wabiria v Payale Elo�

[1977] PNGLR 328

N117

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE KOROBA � LAKE KOPIAGO OPEN PARLIAMENTARY ELECTION

ANDREW WABIRIA

V

PAYALE ELO

Mendi

Pritchard J

4-8 October 1977

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Illegal practices - �Undue influence� - Whether false and defamatory statements undue influence or illegal practice - Organic Law on National Elections s. 179, s. 212 and s. 215[cccxxxix]¹�- Criminal Code s. 102[cccxl]².

N1>PARLIAMENT - Elections - Disputed election petition - Practice and procedure - Desirability of full particulars being provided prior to hearing.

N1>PRACTICE AND PROCEDURE - National Court - Court of disputed returns - Disputed election petition - Desirability of full particulars being provided prior to hearing.

In proceedings by way of disputed election petition pursuant to s. 206 of the Organic Law on National Elections, contesting the validity of an open parliamentary election on the ground of undue influence;

Held

N1>(1)����� �Undue influence� for the purpose of that expression in s. 215(1) of the Organic Law on National Elections, should have the meaning of that offence as constituted in s. 102 of the Criminal Code.

In re Menyamya Open Parliamentary Election [1977] P.N.G.L.R. 298 followed.

N1>(2)����� To constitute undue influence under s. 102 of the Criminal Code it will be sufficient to prove that a person, by fraud, prevented or obstructed the free exercise of franchise by an elector, fraud for the purposes thereof including a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false with the intention that the elector should act upon it; any such instance of fraud preventing or making more difficult the elector�s exercise of his right to vote falling within the section. It is not necessary to prove that the elector was actually induced to vote for the candidate.

In re Menyamya Open Parliamentary Election [1977] P.N.G.L.R. 298 followed.

N1>(3)����� False and defamatory statements per se cannot constitute undue influence under s. 215(1) of the Organic Law on National Elections, albeit they may constitute an �illegal practice� within the meaning of that expression in s. 212(3) and s. 215(3) of the Organic Law on National Elections.

Semble

There could be undue influence under s. 215(1) of the Organic Law on National Elections by the making of false and defamatory statements if, for example, the man making them was a �big� man in the traditional Papua New Guinea sense, whose words would be paid great heed by his own people.

Semble

The expression �illegal practice� in s. 212(3) and s. 215(3) of the Organic Law on National Elections, is intended to describe more than those offences spelt out as such in s. 179 of the Organic Law on National Elections and s. 105 and s. 106 of the Criminal Code, and includes all those offences created by s. 98, s. 117 and s. 78 of the Criminal Code, and by Pt. XVII of the Organic Law on National Elections.

N1>(4)����� In proceedings by petition pursuant to s. 206 and s. 208 of the Organic Law on National Elections, detailed particulars of the allegations relied on as constituting the ground for dispute should be sought and supplied well before the hearing, in order that (a) the court and the parties may be clearly apprised of the issues on which evidence is to be called, (b) there is no chance of the parties being caught by surprise, (c) the parties cannot complain of lack of opportunity fully to present their cases, and (d) the court hearing is prevented from becoming a rehash of the electoral campaign.

N1>(5)����� On the evidence it had been established beyond doubt that the respondent (by telling a group of villagers �if you vote for any other candidate you will be fined K800. Two of my committee will be present to make sure you vote for me, that if you don�t vote for me you will go to gaol�) had by threats deliberately attempted to unduly influence the election which amounted to �undue influence� and accordingly the election should be declared void in accordance with s. 215(1) of the Organic Law on National Elections.

Petition

This was a petition to the National Court sitting as a court of disputed returns, brought pursuant to s. 206 of the Organic Law on National Elections and contesting the validity of an open parliamentary election on the ground of undue influence.

Counsel

A. Amet, for the petitioner.

W. J. Karczewski, for the respondent.

B. Sakora, for the Electoral Commission.

Cur. adv. vult.

8 October 1977

PRITCHARD J: This is a petition by Mr. Andrew Wabiria disputing the validity of an election under s. 206 of the Organic Law on National Elections. Mr. Wabiria was the former member for the Koroba-Lake Kopiago Open Electorate in the National Parliament and was defeated in the recent general elections by Mr. Payale Elo who is the respondent in these proceedings.

The election for the seat was a seven man contest. The candidates and their final vote count were as follows:

Both Mr. Wabiria and Mr. Elo were represented by counsel on the hearing of the petition, and counsel also appeared for the Electoral Commissioner.

The electorate is situated in the far north west of the Southern Highlands Province. Its boundaries are identical with the Government Administration District of Koroba, the name of the main Government Station of the District itself. The other Government Station is Kopiago. The District Officer in charge of the Koroba District Mr. Moses Sangkol gave evidence before me. He was the Returning Officer for the electorate in the general elections. Another witness was Mr. Vitalis Tele, the officer in charge of the Lake Kopiago Sub-district. He was the Assistant Returning Officer in that area for the elections. From these two officers the following picture of the electorate and its constituents emerges.

It is accessible in two ways, by air and road. The road access is from the Provincial Headquarters at Mendi, which itself is linked by road to Mt. Hagen in the Western Highlands Province and eventually by the Highlands Highway to Lae on the Huon Gulf. Within the Province the main road from Mendi travels generally in a north-westerly direction, passing through the adjoining District of Nipa, then through the District of Tari and finally into the Koroba District first reaching Koroba Station which lies at the south-east corner of the District. Kopiago is some 80 kilometres further on from Koroba in a north-westerly direction. There are two roads linking Koroba and Kopiago and many smaller roads throughout the District. Koroba Station was only opened in 1955 at about the same time as Kopiago which, in fact, lies on the New Guinea side of the old Papua New Guinea border and at that time was part of the Western Highlands Province. North of Kopiago, stretching further into New Guinea is a large area, very sparsley settled, divided into two of the ten census divisions within the District. These two divisions are inhabited by the Hewa people, one of whom is a witness in these proceedings. In the North Hewa Division the people are nomadic and in South Hewa there are no large villages, the people living in small groups of two to three families in one place and three, four or five in another. They are described as an undeveloped people. This can be well understood as the area where they live lies west of what is now the Enga province in the direction of Telefomin. Language is a relevant problem in these proceedings. The Hewa people, I understand, have their own language but they do speak Duna, which is the language of the Kopiago area the population of which is some 11,000. The other major language is Huli and it is the language of the Koroba area to the south-east. It is spoken by some 23,000. To give an idea of the under-development of this District, Mr. Sangkol estimates only 1-2% of the population speak Pidgin. It is also obvious that the Duna and Huli languages are not similar and their speakers cannot understand one another. Mr. Sangkol estimates that 70% of the Kopiago people cannot speak the Huli language. As I understand it, the District was only de-restricted about 10 years ago. Since that time many mission stations have been established in it, of a number of different religious denominations. Apart from Government facilities the missions provide many services such as welfare activities, aid posts, women�s groups, schools etc. They have also provided airstrips in the District. Some 70% of the people are considered to be under mission influence. Most of the villages are on the main roads and movement of the people between Koroba and Kopiago is very free. There is considerable aircraft movement.

Mr. Sangkol felt that the people generally were more politically aware before this election than in 1972. The candidates themselves helped to create this awareness and in the months preceding the election a government campaign of political education was conducted. Various pamphlets prepared in the Pidgin language were distributed, people were asked to attend community centres for this purpose, local government councillors with close contact with their people were briefed at council meetings, patrols were sent about the District and posters and notices distributed from and put up at different health centres and council offices. Other information was disseminated in the local languages by the Department of Information over Radio Mendi. Some 70% of eligible persons voted, according to Mr. Sangkol, and one must express the view that this seems an excellent figure for such a newly developed area. Mr. Tele expressed some reservation about the penetration of the campaign into the Hewa area, because of shortage of staff and limitation of time, but due to the scattered nature of these people throughout a vast area, this is quite easily understood.

This then was the background against which this election took place. The writ for the election was issued on 18th June and voting took place in the following weeks. To complete the picture so far as the petitioner and respondent are concerned I point out here that Mr. Elo comes from Kopiago where he was the President of the Local Government Council. He speaks Duna and Pidgin but not Huli. Mr. Wabiria comes from Koroba and as I have said was the former member for the electorate. He speaks Pidgin and Huli but I am not aware of whether he speaks Duna. He gave evidence only verifying his signature to the petition in this matter; he was not a witness to the facts.

The original petition was dated 15th July, 1977, and contained some ten allegations that false statements had been made against Mr. Wabiria during the election. Subsequently an amended petition, apparently prepared in the office of the Public Solicitor�s Office in Port Moresby and dated 8th September, 1977, was filed. It seeks a declaration that Mr. Elo was not elected as member for the electorate and that a new poll be conducted. It relies upon the following ground:

�During the conduct of the said election the candidate Payale Elo unduly influenced persons to vote for him by threats of arrest.�

Counsel for Mr. Elo, having received at the time only the original petition, wrote a searching letter for further and better particulars of the allegations made. As most of those allegations are no longer relevant I will now set out the particulars in fact supplied by counsel for Mr. Wabiria in support of the ground of undue influence, in the amended petition above mentioned. These particulars are contained in Exhibits �B� and �C� before me.

�It will be alleged that the words were said on two occasions:

A.������ On the first occasion:

(a)����� The words were said by the returned member Payale Elo.

(b)����� To a group of villagers from the Hewa area in the Koroba-Kopiago Electorate.

(c)����� At the house of the said returned Member Payale Elo at Kopiago.

(d)����� On a Saturday, exact date unknown.

(e)����� During the evening.

The words alleged to have been said are to this effect � �If you vote for any other candidate you will be fined K800.00. Two of my committee will be present to make sure you vote for me, that if you don�t vote for me you will go to gaol.�

N2>B.������ On the second occasion:

(a)����� The words were said by the same returned member, Payale Elo.

(b)����� To a gathering of Pablum Villagers and other people.

(c)����� At Pablum Village market place.

(d)����� On the market day, a Friday, exact date unknown.

(e)����� During the day, about mid-morning, exact time unknown.

Words to this effect were alleged to have been spoken � �If you vote for Andrew Wabiria you will pay the Court K200.00 or go to gaol, if you vote for Andrew Wabiria (the) end of the world will come and then Jesus will come down�.�

In his opening address Mr. Amet, counsel for Mr. Wabiria, stated that on the first occasion the words were spoken in the Duna language with no interpretation. On the second occasion, he said, the words were spoken in Pidgin and translated into the Huli language by another candidate, Matiabe Peta.

At the commencement of the hearing Mr. Amet sought to tender further particulars of undue influence alleged against Mr. Elo, on which he had just received detailed instructions. Mr. Amet conceded that these new allegations of undue influence were not to do with threats. His application was opposed by Mr. Karczewski, counsel for Mr. Elo, on the basis that the new particulars did not relate to the ground of undue influence and if, in fact, they added up to anything, it was to add a new ground to the petition. They were, he said, allegations that Mr. Elo made defamatory statements about Mr. Wabiria, and at most would amount to adding a new ground to the petition, namely that of illegal practice based on the offence-making section viz s. 201, Defamation of Candidate, of the Organic Law a ground which could not now be relied on.

I indicated that I could make no ruling on this matter until I looked at the new particulars. They were tendered before me as Exhibit �D�. They read as follows:

�It will also be alleged in evidence, as a general ground of undue influence that the respondent had made false statements relating to the personality of the petitioner on various occasions during his campaign.

This allegation is basically to the effect that Andrew Wabiria had stolen, misused and misappropriated moneys given by the Central Government to pay people for their work on the Koroba Airstrip.

It will be alleged that these words were spoken at the following places by the respondent:

N2>1.������ Koroba Market, on Saturday;

N2>2.������ Hibura Village Market;

N2>3.������ Pukwa Market one Friday;

N2>4.������ Egele Market.�

It was conceded by Mr. Karczewski that the allegations relied on had in fact been made in the original petition. However, he argued, conceding that the commencement of the hearing may not be the appropriate time to do so, as a matter of law, evidence of these allegations could not amount to undue influence under s. 102 of the Criminal Code. He was supported in this argument by Mr. Sakora, appearing for the Electoral Commissioner, who asserted that at best the allegations were of defamation and not capable of constituting the ground of undue influence.

I indicated I would hear further argument at a later stage but ruled that I would admit evidence to be called in relation to the allegations on the basis that they could, if proved, amount to undue influence. I referred to the decision of the Chief Justice in In re Menyamya Open Parliamentary Election[cccxli]³�where his Honour decided that �undue influence� for the purpose of that expression in the Organic Law on National Elections should have the meaning of that offence as constituted in s. 102 of the Criminal Code, which reads as follows:

N2>�102��� Undue Influence

Any person who:

(a)����� uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind, to an elector in order to induce him to vote or refrain from voting at an election or on account of his having voted or refrained from voting at an election; or

(b)����� by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour, and is liable to imprisonment with hard labour for one year, or to a fine of $400.00.�

Dealing with the second portion of s. 102, the Chief Justice said[cccxlii]⁴: �Turning to s. 102(b), what has to be shown so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.

I agree with Mr. Gregory�s submission that any such instance of fraud which prevents or makes more difficult the elector�s exercise of his right to vote as he wishes clearly falls within the section.�

On reflection, I think I was reading more into this portion of his Honour�s judgment than it in fact says. What I had in mind was that there could be undue influence by the making of false and defamatory statements if, for example, the man making them was a �big� man in the traditional Papua New Guinean sense whose words would be paid great heed by his own people. This on the evidence turned out not to be, and I will refer to this evidence now. The allegations were, as set out in Exhibit �D�, that at four different market places Mr. Elo made the accusation that Mr. Wabiria had stolen money given by the Central Government for the people�s work on the Koroba airstrip. For a start, these four markets were close to Koroba itself, a long way from Mr. Elo�s home at Kopiago, and in Mr. Wabiria�s home area. In this environment even if the words were spoken as alleged, I do not believe that they would amount to undue influence, because Mr. Elo was not a �big� man in the traditional sense to these people. At most, they would be false (if in fact false) and defamatory statements within the meaning of the offence constituted by s. 201 of the Organic Law. This would in my view be an �illegal practice� within the meaning of that expression in s. 212(3) and s. 215(3) of the Organic Law. Making false statements is an illegal practice in England as the Representation of the People Act 1949 s. 91 specifically says so.

The expression �illegal practice� is one which historically has been used to denote an offence relating to elections. In the English Act such offences are defined to be illegal practices and are subsequently made punishable as such under s. 147. In the Organic Law the position is different. Mr. Karczewski put to me firstly that �illegal practice� meant only those offences spelt out as such in s. 105 and s. 106 of the Criminal Code and perhaps those similarly spelt out as such in s. 179 of the Organic Law. He later conceded that �undue influence� under s. 102 of the Criminal Code was an illegal practice. Section 102 does not specifically say so, nor for that matter does s. 103 (bribery) say so either.

When one looks at s. 215 of the Organic Law it is perfectly clear that the expression illegal practice was intended to describe more than those offences spelt out as such in s. 179 or those in s. 105 and s. 106 of the Criminal Code. If not, why in s. 215(3)(b) was it necessary to exclude undue influence and bribery from the general expression illegal practice if they were not by inference deemed to be included in the first place. They quite clearly were included and in my view all offences in the Code Chapter XIV �Corrupt and Improper Practices at Elections� s. 98-s. 117, Chapter X �Interfering with Political Liberty� s. 78, together with the offences created under Pt. XVII of the Organic Law are all included in the meaning of that expression.

However, a decision on this matter is not necessary for the purpose of these proceedings. Not only am I not satisfied that the statements at the four market places, if made, were undue influence as abovementioned, I am not satisfied beyond reasonable doubt that they were made as alleged.

In each instance only one person, uncorroborated by anyone else, gave evidence of what happened at each of the four villages. At Koroba, the witness Andrew Lemeo did not allege the words were used in a speech at the market, but to him personally in Pidgin, a language he claims he understands but cannot reply in or speak at all. At Hibura, the witness Angela Teke claimed Mr. Elo spoke in Pidgin which she likewise understood but could not speak. She also claims that the speech was translated by Mr. Matiabe Peta, another candidate, into the Huli language, which she speaks. This allegation was that Mr. Wabiria had �used� the money from the airstrip. At Pukwa, the witness was Piko Agware, the President of the Koroba Local Government Council. For a start he was an unreliable witness, but again what he heard was what he alleges was translated from Pidgin into Huli by Matiabe Peta. At Egele, the witness Muguge Nabe, again said that what he heard was translated from Pidgin into Huli by Matiabe Peta and what was said was that Mr. Wabiria had received a medal from the money he received from the airstrip. Generally the allegations were that Mr. Wabiria had wrongly received money the people should have received for building the airstrip. Mr. Elo denied the allegations. He said he did go to Koroba market but did not speak to Andrew Lemeo. He says he never went to Hibura market at all and does not know the witness, Angela Teke. He says he did speak at Pukwa Market but Matiabe did not interpret, a mission pastor did. He admits he spoke at Egele market but was interpreted, not by Matiabe, but a young lad called Boleni. Mr. Elo is corroborated in several respects by Anthony Temo, who was present on a number of occasions, campaigning on his own behalf for the Southern Highlands Provincial Seat.

I was far from impressed by either Mr. Elo or Mr. Temo, but due to the confusion as to the interpretation of the various speeches and the possibility that Matiabe Peta, if he did interpret, may have had good reasons of his own to make false statements about Mr. Wabiria, I am not satisfied that these allegations are proved. I am quite convinced, however, that a definite attempt was made by Mr. Elo, and probably the others there also, to �rubbish� Mr. Wabiria by planting doubts in the minds of the people about his integrity.

Dealing now with the second matter at Pablum market. The witness called by the petitioner here was John Kopari who lives in that village. His evidence differed to the particulars set out in Exhibits B and C. What he said in court was firstly that Mr. Elo said that if the people voted for Mr. Wabiria �Jesus will come down�. Secondly, �Andrew Wabiria has a lot of wives, he drinks beer and all these things will not go well�. The third statement he alleges was made was the one containing the threat, namely that Mr. Wabiria had three names, Andrew Andagari Wabiria, and that if the people did not call out all three names, but only two (by which he said the people knew him) they would be fined K200. The inference was that this would frighten the people into voting for others and by further inference, for Mr. Elo. The allegations were denied and in view of the uncertainty of the evidence as to the words used and the lack of corroboration I am not satisfied this ground has been proved beyond reasonable doubt and it too fails.

There is one observation I should make at this point. It is clearly undesirable that last minute allegations be made in these election petitions. Under s. 208, petitions, setting out the facts relied on to invalidate the election or return, must be filed in the Registry of this court within two months after the declaration of the result of the election. As a matter of practice it is of great importance that detailed particulars of the allegations relied on be sought and supplied well before the hearing. This achieves several things. Firstly, the court and parties have clearly before them the issues on which evidence is to be called, secondly there is then no chance of parties being caught by surprise, thirdly the parties can then not be heard to claim they have not had the opportunity to fully place their evidence before the court and finally, by so limiting the issues, it prevents the court hearing becoming a rehash of the electoral campaign itself, which is clearly undesirable.

As to the first matter, the ground that a threat was made at Mr. Elo�s house at Kopiago to some men from Hewa, I am satisfied beyond reasonable doubt that the witness called, Salo Aule, was a truthful witness. I am similarly satisfied that, despite his denials, Mr. Elo made the threats of gaol or fine for not voting for him to Salo Aule and the men from Hewa who were with him as alleged in the particulars. I am satisfied beyond doubt that these threats were made in a deliberate attempt to unduly influence Mr. Elo�s election. The threats are corroborated to the hilt by the officer in charge at Kopiago, Mr. Tele, whom I have referred to above. Salo Aule and his line had come all the way to Kopiago to carry back to their own area patrol boxes containing material for the elections. After the threats were made by Mr. Elo, Salo Aule immediately complained to Mr. Tele who said that he and his fellow villagers were obviously worried by them. I do not accept the allegation made by Mr. Elo that Salo had a grudge against him because he refused to help him get a shotgun licence. Not a suggestion of such a motive for making up a false story was put to Salo in cross-examination and it was, I am satisfied, an attempt by Mr. Elo to discredit the evidence of a simple village man, whom I find without doubt was a witness of truth.

Automatically as a result of this finding I must declare the election void in accordance with s. 215(1) of the Organic Law.

I shall direct the Registrar under s. 216 of the Organic Law to promptly inform the Speaker of Parliament of this decision and also the Electoral Commission.

The deposit of K200 is to be returned to the petitioner.

Declared that election void.

Registrar directed to report finding to the Speaker and the Electoral Commission.

Solicitor for the Electoral Commission: C. Maino-Aoae, Acting State Solicitor.

[cccxxxix]Section 215 of the Organic Law on National Elections provides where relevant: VOIDING ELECTION FOR ILLEGAL PRACTICES. (1) If the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is the successful candidate, shall be declared void ...

[cccxl]Infra p 334.

[cccxli][1977] P.N.G.L.R. 298.

[cccxlii][1977] P.N.G.L.R. 298 at p. 303.