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Wasege v Karani [1998] PGNC 220; [1998] PNGLR 132 (20 February 1998)

[1998] PNGLR 132

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KOMANE ASANO WASEGE

V

MATHIAS KARANI

GOROKA: SAWONG J
19 – 20 February 1998

Facts

The applicant disputed the election of the respondent as the Member for the Lufa Open Electorate. In the preliminary proceedings all the grounds of the petition were struck out except for ground three (3). Ground 3 was an allegation that the respondent’s campaign committee attempted to bribe some of the voters to influence them to vote for the respondent.

Held

1. The allegation of bribery is a criminal offence and requires strict proof of al the elements of the offence.
   
2. The offence of bribery was made an election offence to prohibit the improper inducement of eligible voters in an election.
   
3. Where the applicant does not provide strong and credible evidence to prove the allegation of bribery the proceedings must be halted.
   

Papua New Guinea case cited

Agonia v Karo [1992] PNGLR 465.

Counsels

R Leo, for the petitioner.
P Paraka with A B Baniyamai, for the respondent.

20 February 1998

SAWONG J. This was a trial of an election petition disputing the validity of the election for the Lufa Open Seat in the Eastern Highlands Province in the 1997 National Elections.

After I made some rulings (separate ruling) the matter proceeded to trial. The trial was based on the allegation of bribery. Because of my earlier ruling, the only ground that proceeded to trial was on ground 3 of the petition. That ground as pleaded reads:

Ground 3

Between the 17 and 18 June 1997, the first respondent through his campaign committee, Nori Korani, attempted to bribe the following electors at Kositaru village by giving them the amounts of money listed beside their names. It was the intention of the first respondent’s campaign committee that the monies were given on account of the electors voting at the forthcoming election. Alternatively the first respondent’s committee gave the monies to the electors in an attempt to induce them to procure his return. Alternatively the first respondent’s committee gave the monies to the said electors in order to induce them to procure the votes of other electors in the village, in favour of the first respondent.

Name: Amount Received:

1. Mrs Avadamu Bilefu K6.00

2. Mrs Wasi Hiku K4.00

3. Mr Yawo Kamanoriki K4.00

4. Mrs Nuia Bavako K4.00

As a result of my earlier as mentioned earlier, the petitioner called one witness to testify. The witness was one Nuia Bavako. The respondent too called only one witness. The evidence for the petitioner is fairly short. Nuia Bavako’s evidence consisted of two affidavits. In the first affidavit she says that she was enrolled in the common roll for the Lufa Open Electorate. She is not a supporter of the first respondent. She says that on 18 June 1997 at Kositaru village, she was given K4.00 by Nori Korani, a supporter of the respondent, and was asked to vote for the respondent. She says that as a result she casted her vote for the respondent.

In her second affidavit she gives evidence of events that occurred on or about 15 October 1997, well after the Elections had been completed. She says that on that day she came in a truck to sell some sweet potatoes at Red Kona Market from her village at Kositaru. She came with Nori Korani and another woman. She says that when they arrived, Nori Korani gave her a K10.00 note and told her to deny receiving any money at Kositaru village. Thereafter, she says, Nori Korani took her to where a utility was parked where a Ken Riven was. Ken Riven and Nori Korani then took her to the court house where she signed the statutory declaration. She also says that she signed the declaration because Nori Korani and Ken Riven threatened her that if she didn’t sign the statutory declaration, they would take her to court and be fined K1,000.00. Her evidence was not challenged in any manner in cross-examination.

Nori Korani was called as a witness for the respondent. His evidence had also been reduced into an affidavit and was tendered. In summary he said that he was a committee member and supporter of the respondent. Apart from that, he denied receiving any money from the respondent and gave them to any elector to induce their vote for the respondent. He denied out-right the evidence of Nuia Bavako as fabrication on her part. He denied giving any bribe to Nuia Bavako on 16 June, 1997 at Kositaru village. He also denied coming with her on 15 October, 1997 giving her K10.00 and taking her to the courthouse to sign the statutory declaration. Despite the attempt of Mr Leo, the witness did not shift from his evidence. His evidence, was not really destroyed at all.

The allegation is based on bribery. Ground 3 in the petition alleges that committee members of the respondent carried out the acts of bribery. There is no allegation that the respondent committed these alleged bribery.

Bribery is a criminal offence. Accordingly each of the elements of the offence must be proved strictly. The petitioner bears the onus of proof.

I turn now to the submissions. Mr Paraka has made submissions based on two grounds. First he submitted that there was no evidence to show how the respondent was involved in the alleged bribery of Nuia Bavako. There has been no evidence connecting the alleged acts of Nori Korani to the respondent.

Mr Paraka relied on the provisions of s 103 of the Criminal Code and s 215 of the Organic Law on National and Local Level Government Elections (OLNE).

Mr Leo submitted that there is evidence linking the respondent to acts of bribery committed by Nori Korani.

Mr Paraka submitted that the evidence of Nuia Bavako should be rejected, as she has given contradicting evidence. For instance, in her first affidavit, she stated that she was given K4.00 by Nori Korani and asked to vote for the respondent. In her second affidavit, a statutory declaration is annexed to it. That statutory declaration is made on 15 October 1997.

In it she swore that she had "no knowledge of Nori Korani giving me monies in an attempt to bribe me to vote for Mathias Karani". In her second affidavit she offers explanations as to the circumstances giving rise to the swearing and signing of that declaration.

Mr Paraka submitted that that witness has given two contradictory evidence on both occasions. Consequently her credibility as a witness of truth is tainted.

Mr Leo submitted that the court should accept Nuia Bavako’s evidence, because she has given an explanation as to how or under what circumstances the statutory declaration was made.

He further submitted that if I accept her evidence, there is evidence linking the respondent to Nori Korani. He submitted that the court should not accept Nori Korani’s evidence, that he, as a committee member for the respondent did not receive any money to distribute to potential voters as bribes. He submitted that it is common knowledge that Members of Parliament such as the respondent do in fact give money or operate through such a committee men. He submitted that on that basis, the court ought to infer that, despite the denials by Nori Korani, he did in fact receive money from the respondent for the purposes of bribing people. Indeed he submits that I should infer that the respondent did give the money to Nori Korani, which money was used by Nori Korani to bribe Nuia Bavako and others.

Mr Leo submitted that the giving of bribery as set out in s 103 of the Criminal Code was wide enough on the evidence before the court to connect the respondent to the actions of Nori Korani. Mr Leo specifically relied on s 103 (d) of the Criminal Code.

It is well established that a petitioner challenging an election return of a successful candidate on the grounds of bribery is, in effect, a charge that the election should be overturned because a criminal offence has been committed. It is also trite that the petitioner needs only to prove one such offence to invalidate a return. (see Agonia v Karo [1992] PNGLR 465).

What then are the elements of the offence of bribery as set out in s 103 of the Criminal Code? It is evident from a reading of that section that it is a large and exhaustive section, setting out a range of corrupt practices of unlawful inducement. It is useful to set the section out in full, which reads:

"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 or property or benefit of any kind --

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

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receive or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector; and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors, is guilty of a misdemeanour.

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

It is unnecessary to analysis this section in any great detail. But it is clear that this section was designed to prohibit improper inducements to persons, to electors or candidates in an election.

Sheehan J in Agonia v Karo supra said, at p 469:

Whether those inducements are made to an elector - defined as any person entitled to vote at any election - or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.

It is also clear that there is in s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements on "account of", or "in order to induce", or "with the intent that", are all phrases that show that the purpose of offering the inducement is an element of the offence.

One of the elements of the offence under s 103(d) of the Criminal Code is an intention on the part of the giver of money that the receiver of the money will apply the money for any of the purposes set out in s 103(a)(b) and (c). The element of intention on the part of the giver of the money is an integral part of the offence of bribery.

In the present case, there is no evidence at all that in fact Mr Karani gave any money to Nori Korani. The submission that I should infer that Mr Karani did give money to Nori Korani is without any basis. It would be quite improper on the basis of a supposed common knowledge to draw such an inference.

Furthermore, even if I infer that Mr Karani did give such money, there is absolutely no evidence that he intended that such money be used to induce electors amongst others to vote him.

Moreover, I am cautious about accepting the evidence of Nuia Bavako, because she has given two conflicting sworn evidence. In the circumstances the evidence is tainted and I am reluctant to accept her evidence.

For the reasons I have given, I conclude that the petitioner has not proved the allegation. Consequently the petition must be dismissed.

In view of the conclusion I have made, it is unnecessary to consider the second leg of Mr Paraka’s submissions.

For those reasons the petition is dismissed with costs.

Lawyer for the petitioner: Pato Lawyers.
Lawyer for the respondent: Paraka Lawyers.