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Kuman v Dekena [2012] PGNC 181; N4885 (12 November 2012)

N4885

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 74 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE GUMINE OPEN ELECTORATE

BETWEEN

NICK KOPIA KUMAN
Petitioner

AND

DAWA LUCAS DEKENA
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2012: 07th & 12th November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Place of trial of election petition – Petition maybe heard at place of filing – Petition maybe heard at venue determined by Court – Reason for trial at place of filing – Threats, intimidation and harassment of witnesses – Considerations for determining place of trial discussed – National Court Election Petition Rules, 2002 (as amended) – Rule 10.

Cases cited:

The State -v- Mathias Robert (2009) N3606
The State -v- Michael Marabe (2009) N3637
Peter Kuman -v- Camillus Dangima Bongoro & Electoral Commission: EP No 63 of 2012 (Unnumbered & Unreported Judgment of 02nd November, 2012)

Counsel:

Mr T Sirae, for Petitioner
Ms C Copland, for First Respondent
Ms S Tadabe, for Second & Third Respondent

RULING ON PLACE OF TRIAL OF PETITION

12th November, 2012

1. MAKAIL, J: This is an application to have the trial conducted at Waigani National Court pursuant to Rule 10 of National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). Rule 10 states:

"10. PLACE OF TRIAL

(1) A petition may be heard at the place where the petition was filed or at any other venue determined by the Court.

(2) In the case of Central Province and National Capital District, the place of trial will be at Port Moresby."

2. The application arises from an election dispute. The petitioner is disputing the election of the first respondent as member for Gumine open electorate in the Chimbu Province following the 2012 General Elections. Parties are ready to conduct a pre-trial conference and the petitioner seeks to have the trial conducted at Waigani National Court for fear that it will not be a fair trial if it is held at Kundiawa National Court. The reason being, the first respondent's supporters have threatened his witnesses.

3. He relies on his affidavit sworn and filed on 01st November 2012 to show that his witnesses have been threatened. In his affidavit, he annexes an affidavit of Senior Constable Alex Komora sworn on 31st October 2012, affidavit of Joe Kua sworn on 29th October 2012, affidavit of Jeffrey Korone sworn on 01st November 2012, affidavit of Maima Gul sworn on 01st November 2012 and affidavit of Henry Sine sworn on 30th October 2012. For reasons only known to the petitioner and his lawyers, the affidavits of Joe Kua and Henry Sine have not been verified by a Commissioner for Oaths, even though the affidavits bear Waigani as the place where the deponents signed them.

4. As for the first respondent, he relies on his affidavit sworn and filed on 06th November 2012, affidavit of Peter Wau sworn and filed on 06th November 2012 and affidavit of Anton Kuman sworn and filed on 06th November 2012 and opposes the application. He out rightly denies the petitioner's allegations and says that Mr Peter Wau and Mr Anton Kuman were in Port Moresby when the alleged threats and harassment of witnesses occurred. Thus, it is not possible that they threatened and harassed the petitioner's witness. He also says that the evidence of the petitioner and his witnesses in relation to the threats and intimidation is vague and too general such that it is not sufficient for the Court to rely on to grant the application. In any case, he says that he did not authorise his supporters to threaten or harass the petitioner's witnesses.

5. According to Rule 10(1), a petition may be heard at the place of filing or at any other venue determined by the Court. As to whether the petitioner is entitled to have the trial at Waigani National Court is still a matter of discretion, even though the petition was filed at Waigani National Court. Security of witnesses is one of the considerations the Court must take into account when deciding the place of trial. The other is costs of bringing witnesses to attend trial: For more discussion on security and costs of witnesses, see my rulings in the criminal cases of The State -v- Mathias Robert (2009) N3606 and The State -v- Michael Marabe (2009) N3637.

6. The question is, has the petitioner established a case for the trial to be held at Waigani National Court. The first matter to note is that this is a petition from an electorate in the Chimbu Province and logically, should be heard in Kundiawa. Secondly, it is common knowledge that there is a National Court house in Kundiawa. Thirdly, there is a resident judge in Kundiawa. Fourthly, all the witnesses are located in the Province, either in Gumine or Kundiawa. Thus, for convenience sake and cost saving reasons, it should be heard in Kundiawa.

7. The petitioner says he has 30 witnesses. Twelve (12) of them are already in Port Moresby. The first respondent has 12 witnesses. In my view it will be very costly to bring all of them to Port Moresby. In each case, these two gentlemen will need to pay for their return airfares from Kundiawa/Goroka to Port Moresby including food and accommodation in Port Moresby bearing in mind the length of stay is subject to the length of trial. The petitioner has not given any evidence on the costs of all these matters nor has he indicated if he is going to meet the costs of the first respondent's witnesses. Thus, it is not as simple as the petitioner thinks. All these matters operate against his request to have the trial at Waigani.

8. Of course, security of witnesses is one of the considerations but in my view is not the determining factor. Threats to witnesses are a reality in Papua New Guinea. Many times, I have seen cases come and go without witnesses coming forward to testify. This is common in criminal cases where a victim who is a key witness and his or her witnesses fail to turn up at trial because they are either threaten or paid substantial customary compensation to drop the case against the accused, thus compromising the State's case.

9. Recently, in Peter Kuman -v- Camillus Dangima Bongoro & Electoral Commission: EP No 63 of 2012 (Unnumbered & Unreported Judgment of 02nd November, 2012), a case where the petitioner applied for a further interim restraining order to protect his witnesses from threats and intimidation by supporters of the member-elect for Kerowagi open electorate, I was very concern about the safety and wellbeing of the witnesses and made some critical observations. I think what I said then in the context of clear and unambiguous terms of Court orders are pertinent here and worth repeating to drive the message home to everyone that witnesses must come forward freely and voluntarily to testify in Court:

"............... First, this is a case where there is an order in existence protecting Mr Kuman, his witnesses and supporters from threats and intimidation by Mr Bongoro and his supporters pending the determination of dispute. Very importantly, it was intended to protect the witnesses. I have been saying and I will say it again; the National Court is the only forum or place where election disputes are settled or resolved, not any other place. This is the only place provided by law, section 206 of the Organic Law on Elections for aggrieved candidates to dispute the results of the elections; this is the only place for them to air out their grievances as to how the election was conducted; how the Electoral Commission conducted it in the electorates in the country and how voters participated in it.

12. Thus, witnesses who will be called to give evidence at trial as to how the election was conducted, whether something went wrong at the polling or counting or whether voters have been bribed or influenced one way or the other are expected to come forward freely and voluntarily. They need not be afraid or concern about their well being and safety. Regrettably, it does not seem to be the case, and in this case, accepting the evidence of Mr Kuman and his witnesses, on the face of it, these individuals that I have named above have breached the order.

13. Secondly, the Electoral Commission took no position on the application. I would have thought it would be proactive in such applications because it must not be overlooked that whilst the election is over, its ramification continues. The Electoral Commission is charged with the Constitutional duty to conduct election and it must be prepared to defend it to the very end for the common good of our people. The people must be assured that the person they elected to Parliament went there on merits not by default. The Court is the only place where the truth will be revealed; the truth as to whether the election was fair and free; the truth as to whether the member-elect was legally elected."

10. I add we have come a long way since the first General Election in 1977. 2012 General Election is the eighth General Election and by now we should have learnt from experiences in the past seven elections and improve for the better. Threats to witnesses should be a thing of the past. People must learn to respect the rule of law. The Court process must proceed unhindered. Witnesses must come to Court freely. They must not be coerced. If there are reports of threats to witnesses, police should investigate and have those involved arrested and charged. We cannot continue to afford to have one group of people dictating how the Court process is to be conducted.

11. The petitioner and the first respondent are leaders. They cannot stand back and allow their supporters to terrorise each other. They owe a duty to stop such unruly behaviour by their supporters. They must face them and tell them to cease what they are doing. They have a duty to report them to the police and I do not accept for one moment the assertion by the first respondent that he did not authorise his supporters to threaten and harass the petitioner's witnesses. As leaders, they must take full responsibility of their supporter's conduct and deal with them. Otherwise, why be a leader?

12. Finally, in my view the petitioner has not exhausted other remedies available to him to address his concern about the safety of his witnesses. He could have applied for interim restraining orders against the first respondent and his supporters as was done in Peter Kuman's case (supra). If he did and if the first respondent's supporters continue, they can be summonsed to Court to be dealt with.

13. In the end, I am not satisfied that the petitioner has made out the application. I refuse it with cost and direct that the matter proceed to pre-trial conference forthwith.
Ruling accordingly.
____________________________________

Sirae & Co Lawyers: Lawyers for Petitioner
Young & Williams Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents