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Togel v Ogio and Electoral Commission; Re Disputed Returns for the North Bougainville Open Electorate [1994] PGNC 141; [1994] PNGLR 396 (1 July 1994)

PNG Law Reports 1994

[1994] PNGLR 396 - James Togel v Michael Ogio and Electoral Commission; Re Disputed Returns for the North Bougainville Open Electorate�

[1994] PNGLR 396

N1241

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND IN THE MATTER OF THE DISPUTED RETURNS FOR THE NORTH BOUGAINVILLE OPEN ELECTORATE; JAMES TOGEL

V

MICHAEL OGIO

AND ELECTORAL COMMISSION

Buka

Doherty J

16-17 June 1994

20-23 June 1994

1 July 1994

PARLIAMENT - Elections - Disputed return - Bribery.

EVIDENCE - Failure to cross-examine - Rule in Browne v Dunn.

Facts

On a petition disputing an election return, seeking a declaration that the election was void on the basis of bribery, the first respondent and sitting member for the electorate had allocated grants from discretionary funds to two groups in the electorate. The funds were drawn from the National Development Fund, available to all members of the Parliament, and were allocated on the basis of recommendations made by a committee established by the first respondent. The first respondent did not know the members of the recipient groups, several of whom were requested by the persons delivering the funds to �remember� the first respondent, and who therefore felt obliged to vote for him. Evidence of a witness for the petitioner about receipt of the funds, which was not the subject of cross-examination was contradicted by a witness for the respondent.

Held

N1>1.������ An election will be declared void due to bribery, under s 215 of the Organic Law on National Elections, if a bribe is offered to a person:

N2>(a)����� with the authority or authorization of the candidate; and

N2>(b)����� with the intention of persuading him to vote for a particular candidate.

N1>2.������ Payments made from discretionary funds available to members of Parliament to groups or individuals could amount to bribery, depending on the circumstances.

N1>3.������ Payments from the discretionary fund had made members of the recipient groups feel obliged to vote for the first respondent, and, accordingly, could constitute bribery if made with his authority or authorization.

N1>4.������ There being no evidence that the first respondent either knew the identity of members of the groups receiving the funds or authorised what was said when the funds were delivered, there was no evidence of authority or authorization by him.

N1>5.������ A Court is entitled to disbelieve a witness who gives evidence of facts which have not been put to the relevant witness of the opposing party during cross-examination.

Cases Cited

Re Goilala Open Parliamentary Election; Keno v Mona (1982) unnumbered, unreported NC.

Re Koroba-Lake Kopiago Open Parliamentary Election [1977] PNGLR 328.

Re Menyamya Open Parliamentary Election; Bourne v Voeto [1977] PNGLR 298.

Yap v Tan [1987] PNGLR 227.

Browne v Dunn (1893) 6 R 67.

Counsel

J Yagi, for petitioner.

P Niningi, for first respondent.

D Kombagle, for second respondent.

1 July 1994

DOHERTY J:� The petitioner filed a petition in the National Court, sitting as a Court of Disputed Returns, seeking a declaration that the election held for the North Bougainville Electorate in the 1992 General Elections was void. The original petition contained five grounds. At a preliminary hearing before Salika J on 18 September 1992, four of these grounds were struck out. No grounds related to the second respondent remain before this Court.

The remaining ground alleges illegal practices by the first respondent. It states 21 incidents of bribery by him at dates in May and June 1992, prior to the election. Before this Court, evidence was adduced of two only of the incidents alleged. There being no evidence adduced relating to the others. I say nothing further concerning them.

Before dealing with the evidence and the law relating to that evidence. I will deal first with an application Mr Niningi tried unsuccessfully to raise, and subsequently raised again in his submission. This was seeking an Order to strike out the remaining one ground in its entirety on the basis that it does not comply with s 208 of the Organic Law on National Elections. A ruling was given by Salika J in response to the same application by the first respondent to strike out the entire petition in September 1992. In asking this Court to strike out, counsel is effectively asking that it review or change the decision and order of a Court of equal competent jursidiction. The law is clear. A person is bound by the decision of a Court, whether they think it is incorrect or not, until that order is changed by a Court of competent jurisdiction, by way of appeal or review or amendments; Yap v Tan [1987] PNGLR 227. Section 220 of the Organic Law on National Elections provides that a decision of the National Court is final and conclusive and without appeal. That, of course, does not override the Supreme Court�s inherent jurisdiction to review under s 155 of Constitution, but the fact remains that an order was made by Salika J on application by the first respondent, he cannot come back and ask me to review that decision.

The evidence adduced related to two incidents which the petitioner says were bribery. The Organic Law on National Elections provides at s 215(1):

�Voiding election for illegal practices

N2>(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.�

Section 215(3)(a) provides that:

N2>�(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;�

�Bribery� is not defined by the Organic Law, but as Mr Yagi points out, the National Court has held that the phrase �undue influence� and the word �bribery� each have the same meaning when used in the Criminal Code (Re Menyamya Open Parliamentary Election; Bourne v Voeto [1977] PNGLR 298 and Re Koroba-Lake Kopiago Open Parliamentary Election [1977] PNGLR 328).

EVIDENCE

The dates of the election were as follows: the writ was issued on 20 April 1992 and nominations opened on 3 and closed on 9 April 1992. Polling commenced on 2 June 1992 and closed on 30 June 1992. The polling on the Island of Buka was for one day, on 24 June 1992. The incidents alleged occurred on Buka Island. It is not disputed that the relevant witnesses were listed in the electoral roll or supplementary roll for the electorate as eligible voters.

The petitioner did not personally witness any of the alleged incidents but gave evidence of his standing in the community and of meeting with chiefs and communities in Buka Island prior to the election. He said, �I was nominated by chiefs in Halia area. Also nominated by chiefs in Tsilataeo. I was also endorsed by my party the Melanesian Alliance Party�. He added, �In traditional society our chiefs play a very important role in welfare of the people and in law and order, and once they make that decision it is binding on the community. In other words people in the area had to follow that decision by the chiefs� (meaning the decision to endorse his candidature). He conceded that the right to vote was enshrined as a private personal right of the individual by s 50 of the Constitution. Despite this, I formed a very strong impression that he anticipated the 100% support of these communities in their entirety and was aggrieved when that support did not materialise.

The petitioner called witnesses relating to monies paid to Koheno Rebuilding Group on 21 May 1992 and to Halia Football Club in May 1992, which he said came from the first respondent and were given with a statement that the recipients should remember the first respondent when voting. He does not seem to go as far as saying the payments were conditional on votes being cast, but he seeks to adduce evidence that statements and payments operated on the minds of the witness in this way.

The first respondent does not deny that payments were made but says they were part of his National Development Fund (variously referred to as slush fund, slash fund, and sliced fund in evidence), and were made following requests by the recipient groups. The payments were not conditional on, nor accompanied by remarks about voting.

The petitioner called two witnesses to give direct evidence about the payments to Koheno Rebuilding Group. Benedict Tukan gave evidence that he came from Kohenou and was in his village prior to the election. There was election campaigning in his area and he knew various people who were campaigning. On 21 May 1992, a Thursday, he was given a cheque by Father Lawrence Samei. It was payable to Koheno Rebuilding Fund. It became apparent in re-examination that no group or corporate body called Koheno Rebuilding Fund (or any similar name) had been in existence before 21 May 1992. The cheque was for K2,000. Mr Tukan said that when Fr Lawrence gave the cheque, he �told me that the cheque was given by Michael Ogio for the Koheno Rebuilding Group�.

He retained the cheque until it was collected next day by Alphonse Tomai. Evidence from Mr Tomai shows a bank account called Koheno Rebuilding Group was opened and most of the money used over a period for timber, nails, and use of a chain saw.

This was the first such assistance Mr Tukan received, and he was adamant there was no request for assistance and he was surprised by it. Fr Lawrence said this witness was his �right hand man�, a person of great integrity.

It was not until cross-examination that it was suggested that there was anything said connecting the cheque and voting. The witness said, �When Fr Lawrence gave me the cheque there were many others present, and he said remember Michael Ogio and do not have any second doubts�.

Having received the cheque, he felt obliged to vote for the person who gave him �something�. It was put that Fr Lawrence never said any words about �tingim tasol�, which the witness refuted. Oddly enough, it was not put to Mr Tukan that it was someone other than Fr Lawrence who delivered the cheque which was, in turn, what Fr Lawrence told the Court. He said that Mr Tukan was absent and he had Sister Stella Marie deliver the cheque. Why question a witness about the words a person spoke when the person is going to swear that he was absent?

The respondent�s evidence about this cheque was given by Fr Lawrence Samei. Fr Lawrence was the parish priest in Gogan, Buka, in 1992. He had previously been at the first respondent�s parish for five years and knew him. He also knew the witness Benedict Tukan well and spoke highly of him. He was his �right hand man�. He conveyed an impression that Mr Tukan was a person of integrity. He said a meeting was held when it was agreed to apply for funds to help in the school rebuilding at Koheno, and Mr Tukan was present at that meeting.

Mr Ogio lived in Fr Lawrence�s parish, and had stayed once with him. He had some knowledge of how to get application forms. As a result of the relationship and his familiarity with procedures, he was asked to help and agreed to do so.

He helped fill in the form, using the name Koheno Rebuilding Group, and gave it to the committee which considered such applications. Later, a cheque for K2,000 payable to the Koheno Rebuilding Group was given to him, and he in turn delivered it to Benedict Tukan. He then said Mr Tukan was not at his home, he was away having a bath; so he left the cheque for Sr Stella Marie to deliver. He denied making any statement concerning Ogio or voting, at the time of delivery of the cheque.

The meeting, the discussion and agreement at the meeting were never put to Mr Tukan in cross-examination. He was cross-examined on what Fr Lawrence said, but it was never suggested that another person handed over the cheque. Failure to put a fact of evidence in cross-examination of a witness has been considered in many cases dealing with the rule in Browne v Dunn (1893) 6 R 67. One consequence of the rule can be that the Court is entitled to conclude, when considering all the weight of evidence, that a witness who gives evidence of facts not put in cross-examination of the witness of an opposing party has made things up. Certainly, cross-examining on what was said by Fr Lawrence and then leading evidence that Fr Lawrence was not even there leads me to disbelieve Fr Lawrence and believe Mr Tukan, that Fr Lawrence did deliver that cheque and told Mr Tukan it was from Mr Ogio. Alphonse Tomai also gave evidence of a meeting when it was decided to apply for the funds. His presence and the meeting itself were not put to Mr Tukan. Mr Tomai was evasive about who attended the meeting and shifted and avoided questions on the point. I, therefore, do not put great weight on that part of his evidence.

The rest of Mr Tomai�s evidence concerned how the money was spent.

This evidence is something of a red herring in this type of case, where bribery in an election is alleged. It is not where the money went after it was given that is probative of a bribe although it may well be relevant in some situations, but the circumstances of the giving and on what conditions, if any, it was given.

I find as a fact that Fr Lawrence gave the cheque to Benedict Tukan, that he made it clear to Mr Tukan that the cheque came from the first respondent and conveyed to Mr Tukan that he should be grateful to Mr. Ogio.

The evidence relating to the second allegation of bribery was led from Aquila Garei, the secretary of the Halia Rugby League Club, from Halia village, Buka. He gave evidence that he received a cheque for K1,500 on 21 May 1992 at the Basbi Oval from Anton Hatubu. Mr Hatubu was a local chief and a member of the respondent�s campaign committee. He told the Court that he had never applied for such a payment, nor did he know of any executive meeting that resolved to make such an application. When he was given the cheque, he says he was told. �When you get this cheque, you must remember Michael Ogio in your period of voting�. He was pleased to receive the money, for the club never had such a contribution before and they needed to buy uniforms, without which the club would be unable to continue in the Buka league. Prior to receipt of the cheque, he intended voting for the respondent, but he �changed (his) intention because of the cheque�.

Mr Garei was challenged about what was supposed to have been said by Mr Hatubu as, in his affidavit, he said that Mr Hatubu �announced that help has just come from Michael Ogio, and he handed me a cheque of K1,500�. His explanation was that, when giving his original statement, he forgot the request that he should �tingim Michael Ogio� at the time of voting.

From his evidence, it is clear that the handing over of the cheque took a very short time and lacked any formality. The team were training when Mr Hatubu arrived, and he spoke briefly, was thanked briefly, and left. There was no prior arranged meeting.

I am satisfied that this witness and the club executive did not make any application for funds. He says so, he was not challenged on the point, and Robert Moves said he applied because the executive were �too slow�. Mr Moves was a player and also a member of the respondent�s campaign committee.

The respondent stressed that these and any other payments he made were as a result only of applications made to him through a committee made up of people of differing political affiliations. The committee was charged with collating, screening, and making recommendations on applications for funds from the National Development Fund allocated to him.

Max Tabasi, a witness for the petitioner, confirmed that application forms were used to apply for assistance. There was an attempt to discredit the witness due to: his inability to identify his own and the Commissioner of Oath�s signatures; his land dispute with Mr Hatubu; and the suggestion that he was disgruntled because his application for assistance was unsuccessful. But, in fact, all his evidence shows is what the respondent states directly. Mr Tabasi was not present when the cheque was given and other aspects of his evidence about Fr Lawrence were hearsay.

The respondent called Robert Moves, a player in the Halia Rugby League Club who had helped in his election campaign, and Anton Hatubu, who gave the cheque over and was a member of the committee screening applications for National Development Fund money.

Robert Moves was, to say at least, surly. He said there had been a meeting when the first respondent and other club members were present, when the respondent was told of the club�s problems on uniforms, and an application was suggested. He filled out the application at the behest of other players, apparently by-passing the club executive completely. He considered the executive was �asleep�. None of this was put to Aquila Garei in cross-examination. He was present when the cheque was given and stated Mr Hatubu�s only words were, �This is the cheque you requested to buy uniforms�. A senior player thanked him.

Anton Hatubu was a member of the committee screening applications and stressed that there was no political party or other bias used when assessing applications. He said the first respondent could not know who the individual members of an applicant group were, as each application was in the group name and did not specify the individual members. He denied �campaigning� for Mr Ogio when he handed over the cheque to the Halia Rugby League Club players, though it was reluctantly drawn out of him that he was a campaigner for the respondent in the time before the election.

I find a cheque was given to �Halia Rubgy League Club�, but it was not apparent who the members were or if they were eligible to vote. It was made clear the cheque was from the first respondent, and the club executive did not apply for it.

The respondent, in his evidence, said he had received National Development Fund money allocated to all members of Parliament. In 1992, owing to the crisis in Bougainville, he was unable to deal with his allocation early. He was not able to make any distribution in 1990/91 because of the crisis. He stressed he conformed with the requirement to acquit and so he received funds in subsequent years, whereas some Members of Parliament got no funds because they did not conform with acquittal procedures. In order to distribute the funds, he had set up committees in three parts of the electorate who received, considered, and made recommendations. Prospective applicants had to fill in a form. He was unable to produce any forms, as they had been destroyed in a fire at his office in Tinputz.

The committee in Buka Island had five members of different political background who were leaders in their communities. They received the applications, and the committee�s recommendations and the original application were referred to him. He signed final cheques.

The committee system is not a statutory obligation, but his own way to manage his funds.

It is apparent from evidence that the respondent was not present when the cheque was handed over. He also said of Anton Hatubu, �I must say I did not know what transpired between him and any person he met�.

He considered allocation of the funds as �exercising (his) duties as the elected leader for North Bougainville when financial assistance is given to my people there�.

It is apparent from the evidence that the cheques given were an allocation from the second respondent�s National Development Fund which, in turn, is a legal allocation made to each member of the Parliament. There is no evidence before the Court that there are constraints on how or when these funds are disposed of. This position has been subject to media criticism but, as I have stressed several times in this curcuit, the Courts do not enter into politics.

I am satisfied on the evidence that the second respondent�s allocation is administered by a committee after application, and that the application and recommendation together are referred to him. He may or may not know who the individual members of the applicant group are.

I do not consider that it is entirely relevant whether the payment is made to a group, or an individual. A clear intention can be conveyed to the members of a group that the benefit is being made so they will vote in a particular way. Each set of the facts established in evidence must be considered.

Whether or not the giving of National Development Fund to groups or individuals amounts to bribery must also depend on the facts of each case. As was said by Woods AJ (as he then was) when speaking of distribution of money from the Rural Transport Sectoral Fund:

�Whilst I must criticize the timing of these grants and point out that a Government that allows such grants to be made just before an election could be creating grave suspicions as to its bonafides, I must find that the member himself was legally empowered to make such grants and I am unable to find that such grants were bribery. Candidates could presumably point out that in the future whoever won the election could possibly have the same kind of funds to distribute� (Re Goilala Open Parliamentary Election; Keno v Mona unnumbered, unreported MP 122 of 1982).

I concur with Judge Woods that the time of giving of these grants can create grave suspicions as to their bona fides. Do those grave suspicions go further on the facts before me and amount to bribery within the meaning of s 215 of Organic Law on National Elections?

I have noted the elements that are provided for in the Organic Law on National Elections. There must be a bribe to a person to persuade him to vote for a particular candidate. This must be with the authority or authorization of the candidate. In Re Menyamya Open Parliamentary Election Bourne v Voeto [1977] PNGLR 298, it was held that it must be proved to the entire satisfaction of the Court, and that the standard of proof may be just short of the criminal standard.

I apply this law and the principles I have set out above, that allocation of funds to a group or an individual could be bribery depending on the facts, to the facts before me, eg that two payments were made and it was made clear that they came from the first respondent. As a result, the recipients felt obliged to vote for the first respondent.

There is no evidence on the facts before me that the first respondent knew what manner of person would receive the benefit and if they were eligible to vote or not. The petitioner�s witnesses� names were not included in the forms, and I am unable, on the evidence before me, to find if the first respondent knew who would eventually distribute the cheques. They were given to the committee, and its members were not all of the same political persuasion as the first respondent. Further, I cannot find that he had any hand in what was said at the time they were handed over. Hence, I cannot find as a fact on the evidence, nor can I safely infer it from the facts, that anything said was said with �the candidate�s knowledge or authority�, as required in s 215(3)(a).

Without that evidence, I consider the petition must fail and rule accordingly.

Lawyer for the petitioner: Kirriwom Lawyers.

Lawyer for the first respondent: P Niningi.

Lawyer for the second respondent: Pato Lawyers.